Post-Conviction

Is It Too Late to File for a Loved One?

Writ Large · September 17, 2026

Written by Prisoner Legal Aid

Updated September 17, 2026 — an earlier version of this article described the one-year filing deadline imprecisely and has been rewritten.

If you are reading this, someone you love is in prison and you are afraid the clock has run out. That fear is usually the right instinct and the wrong conclusion. The deadlines in this area are real and they are strict — but which deadline applies, and when it started, depends on facts about his case that you can actually go find. Most families who assume it is too late have never checked.

Here is the honest shape of it, and what you can do this week.

First: which law applies depends on which court convicted him

This is the fork everything else hangs on, and it takes one minute to answer.

If he was convicted in federal court, his motion is under 28 U.S.C. § 2255, filed in the same court that sentenced him.

If he was convicted in state court, his federal petition is under 28 U.S.C. § 2254, and its deadline comes from 28 U.S.C. § 2244(d). He may also have state post-conviction remedies with their own separate deadlines, which vary by state.

Both routes carry a one-year limit. They are not the same one year, and mixing them up is the most common mistake we see.

The one year does not always start where you think

For a federal conviction, § 2255(f) says the year runs from the latest of four dates:

1. the date the judgment of conviction becomes final;
2. the date an unlawful government-created obstacle to filing is removed, if that obstacle is what prevented him from filing;
3. the date the Supreme Court first recognized the right he is asserting — but only if the Supreme Court also made that right retroactive to cases on collateral review; or
4. the date the facts supporting his claim could have been discovered through the exercise of due diligence.

Read the second one again, because it is the one families never know about. If the facility withheld his records, or blocked his access to the law library, or lost his mail, that is not just unfair — the statute may move his start date.

Two cautions on the others, both of which matter more than they look.

"Latest of" is doing real work. If two of these dates apply, the later one governs. That is sometimes the whole case.

Number three is narrower than it sounds. A new Supreme Court decision only restarts the clock if the Court also made it retroactive on collateral review. Most decisions are not. A case in the news is not by itself a new deadline.

Number four is stricter than it sounds. The statute does not say "when you found out." It says when the facts could have been discovered with due diligence. That is often an earlier date, and the gap between them is where petitions are lost.

For a state conviction, § 2244(d)(1) sets out a parallel set of four triggers — finality on direct review, removal of a state-created obstacle, a newly recognized retroactive right, or discoverability of the factual predicate.

What "tolled" actually means, because this one is dangerous

You will read that a pending state post-conviction case tolls the federal deadline. That is true, and it does not mean what most people take it to mean.

Section 2244(d)(2) says the time a properly filed state post-conviction or collateral review application is pending "shall not be counted toward" the one-year period. It pauses the clock. It does not restart it, and it does not give back time already spent.

So if ten months of his year had already run when the state petition was filed, he has two months when it ends. Not twelve. Families who believe otherwise wait — and that wait is the bar.

Two more things about that provision. "Properly filed" is not decoration — an application that was not properly filed tolls nothing, and that is discovered after the year is gone. And a direct appeal is different: during direct review the clock has not started yet, so there is nothing to pause. Different mechanism entirely.

If the year has already run, two doors remain

Neither is easy. Both are real, and the second one is the one almost nobody mentions.

Equitable tolling. In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court held a petitioner is entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing.

Both halves are required, and the first is where most attempts fail. Holland qualified because he wrote his lawyer over and over, contacted the courts and the state bar to get that lawyer removed, and filed his own petition the very day he learned his clock had expired. Diligence is a record you either have or you don't.

Be clear about what does not count. The Court has held that "a garden variety claim of excusable neglect" — including a simple miscalculation that causes a missed deadline — does not warrant equitable tolling. Not understanding the deadline is not, by itself, an excuse for missing it. If you have read otherwise, that was wrong.

Actual innocence. This is the door that goes unmentioned, and for some families it is the only one that matters. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Court confirmed that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default" — a credible showing of actual innocence can let a prisoner reach his constitutional claims "notwithstanding the existence of a procedural bar to relief."

The bar is high and it requires new evidence, not a retelling of the trial. But an expired clock is not automatically the end of it.

What to do this week

You do not need to resolve any of the above to start. You need the dates, and they exist on paper.

1. Get the docket. The sentencing court's docket sheet shows the judgment date and every filing. Federal dockets are available through PACER, and the clerk of court can tell you what a paper copy costs. Here is how to pull his docket on PACER without running up a bill.
2. Find the end of the appeal. The date the appeal concluded — or the date the time to appeal expired without one — is what most start-date questions turn on.
3. List anything already filed. Any state post-conviction petition, with the dates it was filed and decided. Those dates change the arithmetic.
4. Write down what he was never able to do, and why. Records he asked for and did not get, law-library access he was denied, mail that vanished, periods he was physically unable to work on his case. Dates, names, what he asked for. This is what triggers two and four are built from, and nobody reconstructs it later as well as they can now.
5. Do it now rather than when you feel ready. Facilities purge files and staff transfer out. The record is easiest to get the day you decide to get it.

Prisoner Legal Aid prepares documents and requests records for families doing exactly this. We can look at the dates you gather and tell you what we see. Free case review: 786-408-5073.

We prepare documents and gather records; the person we help remains self-represented. No outcome is guaranteed — the court decides, not us.