28 U.S.C. § 2254
Habeas corpus for state prisoners: one year, three gates, and deference to the state court
A federal claim in United States district courts · Last verified August 26, 2026
Federal habeas is not a second appeal. People arrive expecting a fresh look at whether the conviction was right, and that is not what the statute provides.
Since 1996 it has provided deferential collateral review: a federal judge asks not whether the state court was wrong but whether it was unreasonable — and if fairminded jurists could disagree, relief is barred. On top of that sit a one-year clock with four possible start dates and three separate procedural gates, each with a different consequence for missing it.
This is a claim made almost entirely of procedure, which is why it belongs here.
What the claim is
You are in state custody and contend that the custody violates the Constitution or federal law.
The recurring claims: ineffective assistance of counsel, prosecutorial suppression of favourable evidence, involuntary plea, insufficient evidence, jury selection error, and sentencing defects.
The relief is not usually outright release. It is a conditional writ — the state must release you unless it retries or resentences within a set period.
Where the right comes from
The writ is constitutional in origin and protected against suspension. What governs a modern petition is the statutory scheme, and the Antiterrorism and Effective Death Penalty Act of 1996 narrowed it sharply — adding a relitigation bar, deference to state courts, a one-year clock, and gatekeeping for repeat petitions.
State it plainly: after 1996 the statute converted what had been effectively de novo federal review into deferential collateral review.
What a plaintiff has to prove — the standard is the obstacle
If the state court adjudicated your claim on the merits, no relief unless the decision:
(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) … was based on an unreasonable determination of the facts in light of the evidence presented.
Williams v. Taylor defined both halves. "Contrary to" means the state court reached a conclusion opposite to the Supreme Court's on a question of law, or decided differently on materially indistinguishable facts. "Unreasonable application" means it identified the right principle and applied it unreasonably — and the application must be objectively unreasonable, not merely incorrect.
Harrington v. Richter put the practical bar higher still: relief is barred if "fairminded jurists could disagree."
Note the narrowing inside the text: only Supreme Court holdings count as clearly established federal law. A circuit decision squarely in your favour does not qualify.
State factual findings are presumed correct and rebuttable only by clear and convincing evidence.
How long you have to file
One year — but from which of four dates:
- The date the judgment became final by the conclusion of direct review, or the expiration of the time to seek it.
- The date a state-created unconstitutional impediment to filing was removed.
- The date the Supreme Court recognised a new right and made it retroactive.
- The date the factual predicate could have been discovered through due diligence.
Statutory tolling runs while a "properly filed" state post-conviction application is pending. The trap: an untimely state petition is not properly filed, so it tolls nothing — a petitioner who files late in state court and then relies on that filing to extend the federal clock discovers both were late.
Equitable tolling requires diligent pursuit plus an extraordinary circumstance.
Actual innocence is a gateway that can excuse untimeliness altogether, though the showing is demanding.
The clock is not jurisdictional — a court may consider it on its own motion but is not required to.
What has to happen before you file — three gates, three consequences
This is where petitions die, and the three requirements are routinely conflated.
Exhaustion of state remedies. Every claim must be presented through one complete round of the state's ordinary appellate process, including discretionary review by the state's highest court. Character: mandatory but waivable — the State must expressly waive it — and not jurisdictional. Missing it usually means dismissal without prejudice, so remedies remain. But if the state courts would now refuse to hear the claim as untimely, the failure converts into the next problem.
Procedural default. A claim the state court rejected on an independent and adequate state ground is barred unless the petitioner shows cause and prejudice, or a fundamental miscarriage of justice (actual innocence). A narrow exception recognises ineffective post-conviction counsel as cause for a defaulted ineffective-assistance-of-trial-counsel claim, where state law channels such claims to collateral review — but a later decision sharply limited the federal evidentiary development needed to prove it, which leaves many petitioners with a theory they cannot substantiate. Character: an affirmative defense the State must raise, and forfeitable.
Second-or-successive gatekeeping. Before filing a second or successive petition you must obtain authorisation from the court of appeals. Character: a jurisdictional bar on the district court without it. In Rivers v. Guerrero (2025) the Court held that once the district court enters judgment on a first petition, a second-in-time filing qualifies as second or successive — you cannot amend your way around it after judgment.
Three gates: waivable, forfeitable, and jurisdictional. They are not interchangeable.
Who can be sued — and who cannot
The immediate custodian — the warden of the facility where you are held, not the State, not the Attorney General.
You must be "in custody" when the petition is filed. Custody includes parole and other significant restraints, but a fully expired sentence generally will not support a petition attacking it.
Common defenses
Non-exhaustion. Procedural default. Untimeliness. The three gates.
Deference — the state court was not unreasonable.
Non-retroactivity — a new constitutional rule generally does not apply on collateral review.
Harmless error, on a standard more forgiving to the state than the one used on direct appeal.
What the claim pays
A conditional writ. The state must release you unless it retries or resentences within the period the court sets. Outright immediate release is unusual.
No damages. No jury. If you want money for a constitutional violation, that is a separate civil rights claim — and one that may be blocked while the conviction stands.
To appeal a denial you need a certificate of appealability, which requires a substantial showing of the denial of a constitutional right. Most denials never reach the merits on appeal because no certificate issues.
What people get wrong
"Habeas is a second appeal." No. It is deferential collateral review, and only Supreme Court holdings count as clearly established law.
"The state court got it wrong, so I win." Not enough. It must have been objectively unreasonable.
"Being innocent entitles me to relief." Innocence is a gateway past procedural bars. Whether a freestanding innocence claim exists at all remains unresolved.
"My state post-conviction petition stopped the clock." Only if it was properly filed. An untimely one tolls nothing.
"I can file again with better claims." Not without court-of-appeals authorisation.
"A circuit case in my favour is clearly established law." It is not. Only Supreme Court holdings qualify.
Where it came from
Federal courts have issued the writ since 1789, and Congress extended it to state prisoners in 1867 during Reconstruction, so that federal courts could test the legality of state detention. By the mid-twentieth century it functioned as a broad federal check on state criminal judgments.
The Antiterrorism and Effective Death Penalty Act of 1996 is the defining congressional response, and it is a genuine override of the prior regime: it imposed the one-year clock, the relitigation bar and deference standard, and successive-petition gatekeeping, converting broad review into narrow review.
Everything since has run in the same direction. Rivers (2025) confirmed when a filing becomes successive; a 2022 decision restricted the evidence a federal court may develop to support a defaulted ineffective-assistance claim.
Common questions
How long do I have to file a federal habeas petition?
One year, but from whichever of four dates applies — most commonly when your conviction became final on direct review. Time during which a properly filed state post-conviction petition is pending does not count.
Is federal habeas a second chance to argue my appeal?
No. A federal court may not grant relief merely because it disagrees with the state court. The state decision must be contrary to, or an unreasonable application of, clearly established Supreme Court law — and if fairminded jurists could disagree, relief is barred.
What happens if I did not raise a claim in state court?
If state remedies remain, the petition is usually dismissed so you can exhaust. If the state courts would now refuse to hear it, the claim is procedurally defaulted and can be reached only by showing cause and prejudice or actual innocence.
Can I file a second habeas petition?
Only with authorisation from the court of appeals. Without it the district court has no jurisdiction, and once judgment is entered on a first petition a later filing counts as successive.
If I win, am I released?
Usually not immediately. The typical remedy is a conditional writ ordering release unless the state retries or resentences you within a set time.