Important Timeframes to Remember

New York State Convictions

• An appeal as of right to an intermediate appellate court from a judgment of conviction must be preceded by the filing of a notice of appeal with the sentencing court, in duplicate, within 30 days from the imposition of sentence. New York Criminal Procedure Law (CPL) § 460.10(1)(a), (2) and (3).
• An appeal by permission to an intermediate appellate court from the denial of a motion to vacate judgment pursuant to CPL § 440.10(1) or a motion to set aside a sentence pursuant to 440.20¹ must be preceded by a motion to such appellate court for a certificate granting permission to appeal, pursuant to CPL § 460.15, within 30 days of the service upon the defendant of the order denying such motion to vacate judgment or set aside a sentence. If such motion is granted, the defendant must thereupon file a notice of appeal with the lower court within 15 days of the issuance of the order granting leave to appeal together with such certificate. CPL §§ 460.10(4); 460.15.
• An appeal by permission to the New York Court of Appeals from an order of an intermediate appellate court affirming a judgment of conviction, or affirming an order denying a motion to vacate such judgment of conviction or set aside a sentence, must be preceded by an application either to a Justice of the Appellate Division (when the judgment or order sought to be appealed was entered either in County Court or Supreme Court) or to the Chief Judge of the Court of Appeals (to be assigned to a single judge thereof) within 30 days after service upon the defendant of the order sought to be appealed. CPL § 460.10(5); 460.20.

NOTE: Under appropriate circumstances, a motion can be made to the intermediate appellate court seeking an extension of such time to file such notices of appeal or motions for a certificate granting leave to appeal either to the intermediate appellate court or the Court of Appeals. CPL § 460.30. Such motion should be made with due diligence but no longer than 1 year.

Federal Convictions

• A motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (F. R. Cr. P.) must be made within 3 years of the verdict of finding of guilty if based on a claim of newly discovered evidence. Such a motion, when based on all other grounds, must be made within 14 days of the verdict or finding of guilty, unless extended by the district court within such 14 day period or thereafter if based on “excusable neglect.” Fed. R. Cr. P. 45(b)(1).
• A motion for arrest of judgment pursuant to Fed. R. Cr. P. 34 must be made within 14 days of a verdict, finding of guilty, or plea of guilty or nolo contendre unless extended by the district court within such 14 day period or thereafter if based on “excusable neglect.” Fed. R. Cr. P. 45(b)(1).
• An appeal as of right to the United States Court of Appeals must be taken by the filing of a notice of appeal in the district court within 14 days after the later of either the entry of judgment or the order being appealed. Federal Rules of Appellate Procedure (Fed. R. App. P.) 4(b).²

NOTE: Upon “ finding of excusable neglect or good cause, the district court may – before or after the time has expired, with or without motion and notice– extent the time to file a notice of appeal for a period not to exceed 30 days form the expiration of the time otherwise prescribed by Rule 4(b).”

Federal Habeas Corpus

State Convictions (28 U.S.C. § 2254)

A petition for federal habeas corpus relief brought by a person serving a sentence of imprisonment or probation pursuant to a state conviction must be commenced within 1 year. Such period begins to 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;³

     (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.”

     28 U.S.C. § 2244(d)(1).

NOTE: The time following a properly filed state motion to vacate judgment or other application for collateral review tolls the 1 year statute of limitation. 28 U.S.C. § 2244(d)(2).

Federal Convictions

A petition for federal habeas corpus relief brought by an inmate serving a sentence of imprisonment or probation pursuant to a federal conviction must be commenced within 1 year. Such period begins to run from the latest of

“(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

28 U.S.C. § 2255.

Certificate of Appealability

• An appeal to the United States Court of Appeals from the denial of either a § 2254 (state prisoner) or § 2255 (federal prisoner) petition may only be taken by permission based on the granting of a certificate of appealability (COA). Such may be issued either by the district court, a judge of the Court of Appeals or the Circuit Justice. 28 U.S.C. § 2253(c).
• Because the statute does not contain a time frame, and because it is a civil proceeding, a request for a COA must be sought within 30 days of the entry of the judgment or 60 days where the United States is a party. Fed R. App. P. 4(a)(1); 5(a)(2).⁴

¹ There is no time limitation for the bringing of a motion to vacate judgment (CPL § 440.10) or a motion to set aside a sentence (CPL § 220.20).

² A judgment or order is “entered” “when it is entered on the criminal docket.” Fed. R. App. P. 4(b)(6)

³ In effect, there is a 1 year plus 90 day time frame from the entry of the state judgment of conviction since a judgment is not final until the passage of 90 days in which to seek a petition for a writ of certiorari from the United States Supreme Court following the entry of a judgment of conviction. Clay v. United States, 537 U.S. 522, 528, n.3 (2003); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001)
⁴ It is wise to request a COA in the alternative should the habeas corpus petition be denied. See e.g. Boone v. United States, No. 02-CR-1185 (JMF), 2017 WL 4157374, at *1 (S.D.N.Y. Sept. 19, 2017), aff’d, 750 F. App’x 64 (2d Cir. 2019).