STATUTORY AND PROCEDURAL DEADLINES FOR FILING PETITION
UNDER 28 U.S.C.A. § 2254 FOR HABEAS CORPUS BY A PERSON IN STATE
CUSTODY
The Antiterrorism and Effective Death Penalty Act of 1996 (`AEDPA') as contained in 28
U.S.C.A. § 2244(d)(1) provides in part that:
(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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
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Rule 13(1), as contained in the Rules of the Supreme Court of the United States, provides in
part that:
Rule 13.(1), Unless otherwise provided by law, a petition for a writ of certiorari to review a
judgment in any case, civil or criminal, entered by a state court of last resort or a United States
court of appeals (including the United States Court of Appeals for the Armed Forces) is timely
when it is filed with the Clerk a( this Court within 90 days after entry of the judgment A
petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject
to discretionary review by the state court of last resort is timely when it is filed with the Clerk
within 90 days after entry of the order denying discretionary review.
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Locke v. Saffle, 237 F.3d 1269, 1271 (10th Cir. 2001) provides in part that:
The period of "direct review." following which the one-year period for filing a federal
habeas petition begins to run, includes the period within which a petitioner can file a petition
for a writ of certiorari from the United States Supreme Court, whether or not the petitioner
actually files such a petition. 28 U.S.C.A. § 2244(d)(1)(A).
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Banks v. Dretke, 124 S..Ct. 1256, 1271, 540 U.S. 668, 690, 157 L. Ed.2d 1166 (2004) provides in part that:
To pursue habeas corpus relief in federal court. ... (Petitioner) first had to exhaust "the
remedies available in the courts of the State. " 28 U.S.C. § 2254(b)
28 U.S.C.A. § 2254(b) provides in part that:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody Pursuant to
the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State' or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from
reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
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Battles v. State,1973 OK CR 424, 515 P.2d 269, 271 provides in part that:
In Lima v. Slate, 1973 OK CR 389, 513 P.2d 1399, 1400 we stated:
'The Post Conviction Relief Act, 22 O.S.1971, § 1080-1088, contains no requirement that an
applicant be in custody, under any form of restraint or supervision, or that the sentence be
unsatisfied in any respect.'
Since defendant was confined as a habitual criminal using the judgment herein
attacked, he was subjected to collateral legal consequences on the basis of tire challenged
conviction. Hence, defendant properly applied for relief under the Post Conviction Relief Act
even though his sentence had been wholly executed.
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Holt v State. 1981 OK CR 58, 618 P.2d 1170, 7171 provides in part that.
Where defendant's former conviction was in 1975, and where appeal from prior conviction was
not perfected within six months from judgment and sentence, conviction could properly be used to enhance punishment in subsequent prosecution and defendant's only recourse to challenge that
conviction was by application for post-conviction relief.