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When conducting an evaluation of a state case, we typically consider whether federal action might be appropriate. A habeas petition under 28 U.S.C. §2254 frequently is a good option, especially when a defendant already has pursued a direct appeal and collateral challenges.


Title 28 U.S.C. §2254 is a statute that provides an avenue for redress of state court constitutional violations in a federal court. "[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2254(a).


In order to raise an issue in a §2254 petition, an individual must exhaust all other state remedies on a given issue, which ultimately requires that the issue be appealed to the state supreme court. "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the court of the State[.] * * * An applicant shall not be deemed to have exhausted the remedies available in the courts of the State * * * if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. §2254(b),(c). This exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state court convictions and preserves the role of state courts in protecting federal rights.


If state-court remedies have not been exhausted, an individual may proceed under §2254 only if cause and prejudice are shown, or if a manifest injustice exists. This standard is extremely difficult to meet, and courts very rarely find that it has been satisfied. Under extreme circumstances or where few other options exist, however, attempting to show cause and prejudice can be an important tool.


In addition to the foregoing exhaustion requirement, we note that as a result of the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) in April 1996, significant standards for bringing state issues in federal courts have been established and new time limitations have been imposed by Congress on the length of time within which a defendant can file a §2254 petition. First, state issues are regularly rejected unless a petitioner shows that the state adjudication of the claim resulted in a decision that is contrary to a clearly established federal law or resulted in a decision that is based on an unreasonable determination of the facts. 28 U.S.C. §2254(d)(1) & (2). Accordingly, even some issues that have been fully exhausted cannot be raised successfully in a federal petition.


Second, the AEDPA specifies that a state prisoner has only one year to file his §2254 petition. 28 U.S.C. §2244(d)(1). That one-year time ordinarily begins to run on the date that the state judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. §2244(d)(1 )(A). However, any properly filed and timely state post-conviction action taken in accordance with Virginia law tolls, or stays, the running of the AEDPA clock. In other words, while a properly filed Virginia post-conviction relief action is pending, the one-year period is placed on hold. Days before the filing and days after the court's final decision on the action are counted, but not the days in between.


The AEDPA also imposed limitations on successive §2254 petitions. Any claim raised in a successive §2254 petition, which was raised in a prior petition, will be dismissed. 28 U.S.C. §2244(b)(1). Any claim not previously raised in a §2254 petition will be dismissed unless: (1) the claim is based on a new rule of constitutional law made retroactive to cases on collateral review; or (2) the claim is based on newly discovered evidence which, if proven, would be sufficient to show that no reasonable fact-finder would have found the applicant guilty, but for constitutional error. 28 U.S.C. §2244(b)(2). Prior to filing a successive §2254 petition, an applicant must first file a motion in the court of appeals for an order authorizing the district court to consider the petition. 28 U.S.C. §2254(b)(3).

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