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What is the deadline for a state or federal habeas petition in Virginia?

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Jonathan P. Sheldon - Appellate - Super Lawyers

Answered by: Jonathan P. Sheldon

Located in Fairfax, VASheldon & Flood, P.L.C.

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Calculating habeas petition deadlines is a tricky business and trips up many lawyers who do not regularly handle habeas petitions. There are many traps for the unwary. 

In the state court, for non-capital cases, a habeas corpus petition attacking a criminal conviction or sentence shall be filed within two years from the date of final judgment in the trial court (usually the sentencing order) or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later. Va. Code § 8.01-654(A)(2).  

Recently the Supreme Court of Virginia noted an exception to this deadline for claims involving exculpatory evidence that was suppressed by the prosecution.  Hicks v. Director, No. 131945 (Sup. Ct. of VA. Feb. 26, 2015). 

In federal court, in the case of a federal habeas petition challenging a Virginia state conviction, the petition is due one year from the date on which the judgment became final by the conclusion of direct review. 28 U.S.C. § 2244(d)(1)(A). Direct review includes either a petition for certiorari to the United States Supreme Court or when the time for filing a petition for certiorari expires. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). A petitioner has 90 days to apply for certiorari. Rule 13 of the Rules of the Supreme Court of the United States. However, a properly filed state habeas petition would toll the running of the federal deadline for the entire pendency of the state petition. 28 U.S.C. § 2244(d)(2). 

Trap for the unwary: A state petitioner can be timely for his state habeas petition if filed within two years of the date the judge signed the sentencing order, but untimely for a later federal habeas petition. 

Please consult a habeas lawyer to ensure that you do not miss your deadline. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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