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Differences Between State and Federal Habeas Corpus

May 10, 2021


Habeas corpus is available to prisoners challenging their convictions and sentences. State prisoners have the right to petition the state and federal courts for habeas corpus relief. However, there are crucial differences between the state habeas and federal habeas process and the standards governing them that some prisoners filing pro-se often confuse and convolute in their arguments.

Statutes of Limitations

Both state and federal habeas have their own separate statute of limitations.

  • State Habeas Statute of Limitations: Virginia Code § 8.01-654(A)(2) provides in relevant part: “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 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.”

NOTE: The time limit for state habeas corpus begins to run either immediately: 1 year from the last appeal in the state direct appeal process is concluded, or if there is no appeal, 2 years from the final judgment in circuit court (i.e., sentencing order date). The state limitation period is not tolled by anything you file in state or federal court.

  • Federal Habeas Statute of Limitations: 28 U.S.C. § 2244(d)(1)(A) – (D) contains the federal statute of limitations. It reads as follows: “1. A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”

NOTE: If your direct appeal went all the way to the Virginia Supreme Court, the federal statute of limitations does not begin to run until 90 days after the Virginia Supreme Court denied the appeal, if you did not seek review in the U.S. Supreme Court. If you did seek review in the U.S. Supreme Court, then the federal statute does not begin to run until after the U.S. Supreme Court decides the case.

Also notice how the state limitations is 2-years but the federal is only 1-year. This means that if you intend to file a federal habeas petition, you must file your state petition within 1 year of when the direct appeal is concluded or 1 year of the sentencing order if there was no appeal. Once you file your state habeas petition within 1 year, that tolls whatever time is left on the federal statute of limitations until the state habeas is decided, at which point the federal statute of limitations begins to run again.

NOTE: The federal statute of limitations is not tolled if you seek review in the U.S. Supreme Court from the denial of a habeas petition or habeas appeal from the circuit court in the Virginia Supreme Court.

  • Federal Actual innocence Claims: If the federal petition alleges actual innocence based on newly discovered evidence, and innocence is proved, then you can overcome procedural and time limitation bars to constitutional habeas claims in the petition that would otherwise be barred from review. McQuiggin v. Perkins, 133 S. Ct. 1924 (2013)

State and Federal Standard of Review

State habeas review under Virginia Code § 8.01-654(A)(2) is pretty straightforward. You file your state habeas petition on time and raise cognizable habeas claims, meaning claims that you could not have raised at trial or on appeal, such as claims of Ineffective Assistance of Counsel (“IAC”). The state court will review your claims based on the governing legal standard. For example, IAC claims are reviewed under the two-part test in Strickland v. Washington, 104 S. Ct. 2052 (1984). If your IAC claim is based on, say, your trial lawyer not challenging a suggestive identification, the court will review that claim under the five factors found in Neil v. Biggers, 93 S. Ct. 375 (1972).

Federal habeas review of the denial of a state habeas petition is done under 28 U.S.C. § 2254(d) and restricted to whether a state court decision is (i) 'contrary to' or (ii) 'an unreasonable application of' federal law is based on an independent review of each standard.

Breaking that Down

  • (i) A state court determination runs afoul of the "contrary to" standard if it arrives at a conclusion opposite to that reached by the U. S. Supreme Court on a question of law or if the state court decides a case differently than the U.S. Supreme Court has on a set of materially indistinguishable facts.

  • (ii) Under the "unreasonable application" clause, the federal habeas petition should be granted only if the federal court finds that the state court identifies the correct governing legal principle from the U.S. Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

In other words, this standard " ‘is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’ " Jones v. Clarke, 783 F.3d 987, 991 (4th Cir.2015). However, it is not impossible.

Virginia State and Federal Habeas Lawyer

Challenging a criminal conviction or sentence on habeas corpus can be complicate and confusing . You need an attorney who has experience with habeas corpus challenges. Such an attorney can make sure you get the best outcome in your case. Bryan J. Jones is committed to his clients and will develop a defense strategy tailored just for you. Contact Bryan J. Jones, LLC today.