In California, an incarcerated person who petitions for a writ of habeas corpus must do so “without substantial delay.” If a California court determines that a claim is untimely and that the delay was not justified by good cause or by an exception to the rule, the court will likely reject the claim. The claim will then be considered procedurally defaulted in federal court. When this happens, no court — neither the California court where the petitioner originally filed, nor a federal court sitting in review — will analyze the merits of that individual’s claim. No court will consider whether that person is being held in prison despite a serious constitutional violation. One petitioner, who is deemed to have complied with California’s undefined framework for timeliness, may receive habeas corpus relief, yet another petitioner, alleging the very same violation within a similar time frame, will continue to be imprisoned.

California is the only state with a timeliness rule that has not been codified by statute or rule of court. In California alone, individuals who seek to petition for habeas relief do not know how long they may take to investigate their claims, to gather their evidence, and to present their findings to the court. At what point will the court reject their claim as substantially delayed? At what point is a proffered justification not “good cause” for the delay? Notably, other states either set forth a timeline that individuals must follow, or they do not bar habeas corpus petitions as untimely. The fact that petitioners in California must “race against the clock,” without knowing when the clock runs out, is uniquely concerning.

Numerous scholars have found that the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) shifted the responsibility for providing a forum for state prisoners to litigate constitutional challenges from the federal post-conviction system to the state post-conviction system. The state now has a “commensurate level of responsibility in terms of providing a full and fair state process.” This Note joins that conversation by examining one state’s post-conviction system, and specifically, one procedural rule of that state. This Note’s aim is to focus attention on what states can immediately do to provide a full and fair process, given that federal substantive review of state convictions is constricted by AEDPA.