Virginia's habeas statute, Code A? 8.01-654, states, "A habeas corpus petition attacking a criminal conviction or sentence, except [for death penalty cases], 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." Va. Code A? 8.01-654(A)(2).
Filing the Initial Habeas Petition within One Year is Preferred
In most cases, it is best to file within one year after the state appeal concludes or, if no appeal was pursued, within one year from the sentencing order (the "final judgment") because there are a very strict deadlines for taking the habeas case into federal court if the state habeas petition is unsuccessful. The federal habeas deadlines are calculated differently from the Virginia habeas deadlines.
Consider the Federal Habeas Deadline
The one-year federal habeas statute of limitations in 28 U.S.C. 2244(d)(1) (non-capital cases) starts to run after direct appeals have been exhausted, including a direct appeal to the United States Supreme Court, if any. The federal statute of limitations is tolled (i.e., does not run) while a petitioner pursues a state habeas case. See 28 U.S.C. 2244(d)(2).
To be safe, all potential habeas petitioners should file within one year of the date that the Virginia Supreme Court denies the direct appeal, because such action likely will preserve a petitioner's right to pursue habeas relief in federal court. If there is no appeal (such as when convictions are based on a guilty plea), petitioners should try to file within one year of the date of the sentencing order from the trial court.
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