United States v. Otero

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

5-16-2005

USA v. Otero

Precedential or Non-Precedential: Precedential

Docket No. 02-2624

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 01-2468 & 02-2624

UNITED STATES OF AMERICA

v.

HERBERT L. BENDOLPH,

Appellant at No. 01-2468

UNITED STATES OF AMERICA

v.

JULIO OTERO,

Appellant at No. 02-2624

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 95-cr-00068)

District Judge: Honorable Sue L. Robinson

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 96-cr-00005-3)

District Judge: Honorable Sylvia H. Rambo

Argued October 26, 2004

Reargued En Banc February 23, 2005

(Filed: May 16, 2005)

Before: SCIRICA, Chief Judge, SLOVITER, NYGAARD,

ROTH, McKEE, RENDELL, BARRY, AMBRO, FUENTES,

SMITH, FISHER, AND VAN ANTWERPEN, Circuit Judges.

David R. Fine, Esq. (Argued)

Marsha A. Sajer, Esq.

Robert A. Lawton

Kirkpatrick & Lockhart Nicholson Graham LLP

240 North Third Street

Harrisburg, PA 17101

Counsel for Appellants

Colm F. Connolly, United States Attorney, District of Delaware

Richard G. Andrews, Esq. (Argued)

Office of the United States Attorney

1007 N. Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899-2046

Counsel for Appellees at 01-2468

Thomas A. Marino, Esq.

United States Attorney, Middle District of Pennsylvania

Theodore B. Smith, III, Esq. (Argued)

William A. Behe, Esq.

Office of the United States Attorney

228 Walnut Street

Harrisburg, PA 17108

Counsel for Appellees at 02-2624

Maureen Kearney Rowley, Esq.

Chief Federal Defender, Eastern District of Pennsylvania

Helen Marino, Esq.

Michael Wiseman, Esq.

Office of the Federal Defender

Suite 540 West – The Curtis Center

Philadelphia, PA 19106

Amicus Curiae supporting Appellants

Patrick L. Meehan, Esq.

United States Attorney, Eastern District of Pennsylvania

2

Laurie Magid, Esq.

Robert A. Zauzmer, Esq.

Michael J. Bresnick, Esq.

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Amicus Curiae supporting Appellees

_____

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.1

This en banc court is presented with two cases

consolidated on appeal. In the first case, Herbert Bendolph

appeals from an order of the District Court which dismissed his

motion to vacate, set aside, or correct a sentence under 28 U.S.C.

§ 2255 (“§ 2255 motion”) as untimely. In the second case, Julio

Otero appeals from an order of the District Court denying him

appointed counsel for an ineffectiveness of counsel evidentiary

hearing held pursuant to his § 2255 motion. The District Courts

had jurisdiction over these matters pursuant to 28 §§ U.S.C.

1331 and 2255. Our jurisdiction arises under 28 U.S.C. §§ 1291

and 2255.

1

Judge Van Antwerpen wrote the opinion of the Court in which

Chief Judge Scirica and Judges Roth, Rendell, Barry, Smith and Fisher

joined. Judge Nygaard filed an opinion concurring in part and dissenting

in part, in which Judges Sloviter, McKee, Ambro, and Fuentes joined.

Judge Sloviter filed an opinion dissenting, in which Judges Nygaard,

McKee, Ambro, and Fuentes joined.

3

Both cases raise issues concerning whether, under the

Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), courts may raise the timeliness of § 2255 motions

sua sponte, and, if so, under what circumstances. Neither case

falls within the summary dismissal period of Rule 4 of the Rules

Governing Section 2255 Cases for the United States District

Courts (“Rule 4 period”) because in both cases the government

has filed answers that did not raise the AEDPA statute of

limitations as a defense.

We asked the parties and amici2 to brief four main issues.

First, may the government waive the AEDPA statute of

limitations as a defense? Second, may a district court raise it sua

sponte? Third, if so, at what stages in a habeas case may a

district court raise the limitations issue? Fourth, may a district

court still raise the issue even if the government concedes

waiver?

For the reasons discussed herein, we answer the first,

second, and fourth issues in the affirmative. As to the third, we

answer by concluding that (i) during the Rule 4 period, after

giving notice and an opportunity to respond, 3 courts may raise

2

We acknowledge the consistently excellent advocacy provided

by pro bono counsel on behalf of Messrs. Bendolph and Otero

throughout the duration of these appeals, as well as the excellent briefs

provided by both amici in advance of re-argument en banc.

3

Although the court may act upon what plainly appears from the

motion, attached exhibits and record, not all limitations issues may

4

the AEDPA statute of limitations issue sua sponte without

analysis of prejudice; and (ii) after the Rule 4 period has ended,

courts may continue to raise the AEDPA statute of limitations

issue sua sponte, but only after providing, consistent with our

prior decisions in Robinson v. Johnson, 313 F.3d 128 (3d Cir.

2002), and Long v. Wilson, 393 F.3d 390 (3d Cir. 2004), notice,

an opportunity to respond, and an analysis of prejudice.

Accordingly, we will affirm the District Court’s order in

Bendolph. In Otero, we will reverse and remand to the District

Court, with instructions to the District Court that it has discretion

to raise the AEDPA limitations issue sua sponte.

I.

The relevant facts of these cases may be summarized as

follows. A jury in the United States District Court for the

District of Delaware convicted Herbert Bendolph of being a

felon in possession of a firearm. We affirmed his conviction,

116 F.3d 470, entering judgment on May 5, 1997. The Delaware

Federal Defender, acting as Bendolph’s counsel, then filed a

petition with the Supreme Court of the United States for a writ

of certiorari on August 25, 1997. Under Supreme Court Rule

13.1, which requires the filing of such petitions within 90 days

of judgment, Bendolph’s petition was untimely. The Clerk of

the Supreme Court was unaware of this, however, because

appear in such manner. As such, notice and an opportunity to respond

should be afforded during the Rule 4 stage. See footnote 12 infra.

5

someone involved in the filing of the petition impermissibly

altered the date of this Court’s judgment. On the copy filed with

the Supreme Court, someone had typed the number “27" over the

“5” in the judgment date of May 5, 1997. As a result, the Clerk

of the Supreme Court mistakenly believed the petition for

certiorari was timely.4

A year later, on October 18, 1998, Bendolph filed a pro se

motion under 28 U.S.C. § 2255. This too was untimely:

Bendolph was obligated under the AEDPA’s one-year statute of

limitations to have filed his motion by August 4, 1997, one year

from the date on which the 90 day period to file a petition for

certiorari had ended. See U.S. Supr. Ct. R. 13; Kapral v. United

States, 166 F.3d 565, 575, 577 (3d Cir. 1999) (holding that a

judgment may become “final” in the context of §§ 2254 and

2255 when “the date on which the defendant’s time for filing a

timely petition for certiorari review expires”).5 Two weeks after

Bendolph filed his § 2255 motion, the District Court ordered the

government to file an answer. It did so on December 17, 1998,

4

The Supreme Court subsequently denied the petition for writ

of certiorari on October 20, 1997.

5

Bendolph did not get the benefit of tolling for the time the

petition was under consideration by the Supreme Court because the

petition was untimely and therefore not properly filed. See, e.g., Merritt

v. Blaine, 326 F.3d 157, 164 (3d Cir. 2003) (“‘an application is ‘properly

filed’ when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings,’” including “‘the time limits

upon its delivery’”) (quoting Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct.

361, 361, 148 L.Ed.2d 213 (2000)) (emphasis in Artuz).

6

and did not raise the AEDPA limitations defense.6 Eight months

later, the District Judge retired, and the matter was reassigned to

another District Judge.

One year later, on August 24, 2000,7 the District Court

entered an order suggesting the case was untimely under our

decision in Kapral, 166 F.3d at 575-77, given that Bendolph had

not timely filed a petition for certiorari by August 4, 1997, or 90

days after our May 5, 1997 judgment. In its August 24, 2000

order, the District Court identified the reasons why the case

appeared to be time-barred, invited the parties to brief the issue,

and set a deadline of September 21, 2000 for Bendolph to

respond to the District Court’s analysis. Bendolph filed a three-

page memorandum almost two weeks before that deadline, on

September 8, 2000. The government responded on October 5,

2000, agreeing with the District Court that the case was time-

barred. The District Court subsequently dismissed Bendolph’s §

2255 motion as untimely on January 3, 2001. Now, on appeal,

Bendolph argues the District Court lacked the authority to raise

the AEDPA limitations period sua sponte because the

government had waived the defense by not raising it in its

6

At the time this answer was filed, we had not yet rendered our

decision in Kapral.

7

Although the District Court docket sheet and the parties cite

August 24, 2000 as the date of the District Court’s order, our review of

the record shows August 22, 2000 as the date of that order. The

discrepancy does not affect the issues now before us.

7

answer.8

In the second case, Julio Otero pled guilty to operating a

continuing criminal enterprise in violation of 21 U.S.C. § 848(a).

On May 27, 1998, the United States District Court for the

Middle District of Pennsylvania sentenced him to life

imprisonment. In accordance with his plea agreement, Otero did

not appeal his conviction. On June 25, 2001, Otero filed a pro

se § 2255 motion challenging the validity of his sentence on

several grounds, including ineffective assistance of counsel. The

government filed its answer on September 17, 2001. It did not

raise the AEDPA’s statute of limitations as a defense.9

The District Court initially denied all of Otero’s claims

except his ineffective assistance of counsel claim, for which an

evidentiary hearing was scheduled. The District Court did not

appoint counsel to represent Otero at that hearing, and denied his

claim on the merits. Otero argues on appeal that (i) the District

Court erred in failing to appoint counsel for him at his

evidentiary hearing, and (ii) neither the District Court nor the

government may raise the AEDPA statute of limitations issue on

8

The government initially conceded waiver in Bendolph, but

now contends under Long, which we had not yet rendered at the time

these cases were first argued, that waiver has not yet occurred.

9

The statute of limitations issue was first raised on August 19,

2003 when a panel of this Court entered an order granting Otero a

certificate of appealability.

8

remand because the government has waived the defense.10

II.

We turn first to the District Court’s decision not to

provide counsel to Otero at his ineffective assistance of counsel

evidentiary hearing. Rule 8(c) of the Rules Governing Section

2255 Cases requires that “[i]f an evidentiary hearing is

warranted, the judge must appoint an attorney to represent a

moving party who qualifies to have counsel . . . [as an

indigent].” The appointment of counsel is clearly mandatory for

an indigent petitioner. See United States v. Iasiello, 166 F.3d

212, 213-14 (3d Cir. 1999) (vacating judgment and remanding to

district court where district court conducted a § 2255 evidentiary

hearing without appointing counsel to indigent movant).

“[H]arm to [a movant] must be presumed when his statutory

right to counsel is thus abridged.” Id. at 214. The government

does not dispute that, as a federal inmate since 1996, Otero is

likely indigent; nor does it attempt to rebut the presumption of

prejudice. Accordingly, we must reverse the District Court’s

dismissal of Otero’s ineffective assistance of counsel claim. The

record is unclear as to whether Otero is indigent and the District

Court should inquire as to his status. Should he qualify as

indigent, he must be afforded counsel for his ineffective

assistance of counsel claim.

10

As in Bendolph, the government in Otero initially conceded

waiver but has now reversed its position in light of our decision in Long.

9

III.

A.

We now turn to the four main issues, supra, before us in

these consolidated appeals. The analysis of the AEDPA statute

of limitations issue, which in these two cases involves

undisputed facts, is subject to plenary review. See, e.g., Long,

393 F.3d at 396 (citing Swartz v. Meyers, 204 F.3d 417, 419 (3d

Cir. 2000)); see also Werts v. Vaughn, 228 F.3d 178 (3d Cir.

2000).

As we observed in Long, our analysis necessarily begins

with Robinson, 313 F.3d 128. Our prior discussion of that case

in Long is thorough, see 393 F.3d at 396-98, and needs no

further elaboration here. In Long we encapsulated Robinson’s

holdings as follows:

[F]irst . . . because the statute of limitations is not

jurisdictional in nature, see Miller v. New Jersey

State Dep’t of Corr., 145 F.3d [616], 617-18 [(3d

Cir. 1998)], the state may waive the defense . . . .

[W]e then considered whether Federal Rule of

Civil Procedure 8(c) requires that a defendant

plead . . . a statute of limitations[] in its answer. . .

. We explained: “Parties are generally required to

10

assert affirmative defenses early in litigation, so . .

. prejudice may be avoided[] and judicial resources

may be conserved. Habeas proceedings are no

exception.”. . . We further emphasized: “The

purpose . . . is to avoid surprise and undue

prejudice by providing the plaintiff with notice and

the opportunity to demonstrate why the affirmative

defense should not succeed.”. . . .

[We then] held that “a limitations defense does not

necessarily have to be raised in the answer[,]”

[but] must be raised “as early as practicable”

thereafter. . . . What the earliest practicable or

possible or feasible moment might be in another

case . . . we necessarily left open.

Long, 393 F.3d at 397-98 (quoting Robinson, 313 F.3d at 134-

37). Consistent with these holdings, we then analyzed in Long a

Magistrate Judge’s report and recommendation that flagged the

limitations issue sua sponte. We used the analytical framework

provided by Federal Rule of Civil Procedure 15(a) because the

government had subsequently filed, in response, an

“endors[ment] [of] the Magistrate Judge’s view that the habeas

petition was untimely.” Long, 393 F.3d at 395. Under Rule

15(a), we articulated a standard for judging prejudice in the

AEDPA statute of limitations context as follows:

11

[Our prior cases including Robinson] counsel that,

whether a habeas petitioner has been prejudiced by

the assertion of the AEDPA statute of limitations

defense after an answer has been filed is the

ultimate issue, and that prejudice turns on such

factors as how late in the proceedings the defense

was raised, whether the petitioner had an

opportunity to respond, and whether the

respondent acted in bad faith . . . . Delay is related

to prejudice but was not a problem here, and

inadvertence does not equal bad faith.

Id. at 401 (internal citations omitted). We held that Long was

not prejudiced by the government’s delay in raising the

limitations defense, which it had done through its express

endorsement of the Magistrate Judge’s analysis of the timeliness

issue. We then concluded that the District Court did not abuse

its discretion by construing the government’s filing as an

amendment to its answer. Id. at 401.

Addressing the Magistrate Judge’s sua sponte flagging of

the limitations issue, we said:

Our answer to [this issue] was foreshadowed by

Banks v. Horn, 271 F.3d 527, 533 n.4 (3d Cir.

2001), rev’d on other grounds, 536 U.S. 266, 122

S.Ct. 2147, 1153 L.Ed.2d 301 (2002) . . . . In a

12

footnote . . . we expressed the view that a court of

appeals could address the AEDPA statute of

limitations defense sua sponte even if the habeas

respondent had waived the issue on appeal. We

wrote:

“Even if not raised, we believe we could

consider the issue sua sponte . . . . The Court

has the power to notice a ‘plain error’ though

it is not assigned or specified . . . . In

exceptional circumstances, especially in

criminal cases, appellate courts, in the public

interest, may, of their own motion, notice

errors to which no exception has been taken,

if the errors are obvious, or if they otherwise

seriously affect the fairness, integrity or

public reputation of judicial proceedings.” . . .

...

Thus we observed prior to Robinson that the

AEDPA statute of limitation is an important issue,

the raising of which may not necessarily be left

completely to the state.

Long, 393 F.3d at 401-02 (quoting Banks, 271 F.3d at 533 n.4)

(internal citations and quotations omitted). After then reviewing

13

the relevant decisions of the other courts of appeals, especially

Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000), we held further

that

our decision in Robinson . . . does not prevent a

magistrate judge from raising the AEDPA statute

of limitations defense sua sponte even after an

answer has been filed.

Long, 393 F.3d at 403 (internal citations omitted).

Fundamental to our analysis was (i) our agreement with

the Second Circuit that “[w]hile civil in nature, habeas corpus

cases are different from ordinary civil cases where only the

interests of the parties are involved,” Long, 393 F.3d at 402

(citing Acosta, 221 F.2d at 123), and (ii) our conclusion that

courts “may raise the . . . limitations issue . . . after an answer

has been filed.” Long, 393 F.3d at 403. Our basis for the latter

was Granberry v. Greer, 481 U.S. 129, 134-35, 107 S.Ct. 1671,

95 L.Ed.2d 119 (1987) (holding courts have discretion, in

interests of comity and federalism, to require that a claim be

fully exhausted or to reject it if it plainly lacks merit), as well as

our prior decisions in cases such as Sweger v. Chesney, 294 F.3d

506, 520-21 (3d Cir. 2002) (holding courts may consider sua

sponte whether procedural default bars claim), cert. denied, 538

U.S. 1002, 123 S.Ct. 1902, 155 L.Ed.2d 830 (2003) and Szuchon

v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir. 2001) (holding court

14

of appeals can sua sponte consider procedural default). See

Long, 393 F.3d at 402-403.

We rejected two decisions contra, Scott v. Collins, 286

F.3d 923 (6th Cir. 2002) and Nardi v. Stewart, 354 F.3d 1134

(9th Cir. 2004), concluding they were “at odds with Robinson

and our Rule 15(a) jurisprudence, which do not require that

affirmative defenses be pled in the first responsive pleading.”

Long, 393 F.3d at 403. We then stated that:

[h]aving in mind that AEDPA’s statute of

limitations, like other procedural habeas issues,

furthers the principles of comity, finality, and

federalism, . . . we hold further that a federal

magistrate judge may, consistent with Robinson v.

Johnson . . . raise sua sponte the AEDPA statute of

limitations defense even after an answer has been

filed.

Long, 393 F.3d at 404 (internal citations omitted).

With the analytical framework of Robinson and Long in

mind, we turn to the questions before us.

B.

We must first address whether our decisions in the Long

15

and Robinson § 2254 cases apply to the § 2255 cases before us

today. In resolving the question, we are mindful of our

obligation to be faithful to the intent of Congress’ 1996 habeas

corpus reforms. Congress was cognizant not just of the practical

realities of habeas filings, but also the spectrum of federal

interests that those realities implicate, as evidenced by “the

profound societal costs that attend the exercise of habeas

jurisdiction.” Calderon v. Thompson, 523 U.S. 538, 554, 118

S.Ct. 1489, 1500, 140 L.Ed.2d 728 (1998) (internal quotation

omitted) (emphasis added). “‘AEDPA’s purpose’” is not only to

further the interests of comity and federalism, but also to further

the “‘finality’” of convictions, Duncan v. Walker, 533 U.S. 167,

178, 121 S.Ct. 2120, 2127, 146 L.Ed.2d 435 (2001) (quoting

Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 1490,

146 L.Ed.2d 435 (2000)), and to curb abusive habeas filings.

See, e.g., H.R. Conf. Rep. No. 104-518, at 111 (1996), reprinted

in 1996 U.S.C.C.A.N. 944 (stating that AEDPA was passed, in

relevant part, “to curb the abuse of the statutory writ of habeas

corpus”).11 Other courts have similarly held that “a signal

purpose[] animating AEDPA is the desire of Congress to achieve

11

See also 141 Cong. Rec. S7803-01 (daily ed. June 7, 1995)

(statement of Sen. Nickles) (“[H]abeas procedures are wasteful. The

current system is wasteful of limited resources. At a time when both

State and Federal courts face staggering criminal caseloads, we can ill

afford to make large commitments of judicial and prosecutorial resources

to procedures of dubious value in furthering the ends of justice.”);

Williams, 529 U.S. at 436, 120 S.Ct. at 1490 (observing that, in passing

the AEDPA, it was Congress’ “intent to avoid unneeded evidentiary

hearings in federal habeas corpus”).

16

finality in criminal statutes, both federal and state.” Brackett v.

United States, 270 F.3d 60, 69 (1st Cir. 2001) (citations

omitted), cert. denied, 535 U.S. 1003, 122 S.Ct. 1575, 152

L.Ed.2d 495 (2002). See also United States v. Espinoza-Saenz,

235 F.3d 501, 505 (10th Cir. 2000) (noting the “intent of

Congress that claims under § 2255 be advanced within one year

after a judgment of conviction becomes final”) (internal citations

omitted).

We have similarly recognized the wide spectrum of

interests that Congress intended to protect through habeas

reform. See, e.g., Long, 393 F.3d at 402-03 (identifying interests

of judicial economy and finality of judgments in concluding that

“[t]he AEDPA statute of limitations is an important issue, the

raising of which may not necessarily be left completely to the

state”); Robinson, 313 F.3d at 137 (recognizing an interest in not

“wasting precious legal and judicial resources”). See also

United States v. Brooks, 230 F.3d 643, 649 (3d Cir. 2000)

(observing Congress’ intent in amending § 2255 was “to place

limits on federal collateral review”); Banks, 271 F.3d at 533 n.4

(recognizing interests of, inter alia, the public reputation of

judicial proceedings and the public interest generally); Kapral,

166 F.3d at 571 (recognizing “Congress[’] inten[t] to reduce . . .

delayed and repetitive [habeas] filings”) (internal quotation

omitted); Miller, 145 F.3d at 618 (stating that the AEDPA “was

enacted, in relevant part, to curb the abuse of the writ of habeas

corpus.”) (emphasis in original).

17

It is thus clear, we believe, that Congress’ intent with

respect to habeas reform – one facet of which is the AEDPA

statute of limitations – was not limited to interests of federalism

and comity, which apply only to petitions filed under § 2254.

Rather, Congress was concerned with abuses of, and the interests

implicated by, habeas filings under both §§ 2254 and § 2255.12

Second, to provide guidance to the district courts, as well

as to avoid confusion, we have previously held that we should

treat § 2255 motions and § 2254 petitions the same absent sound

reason to do otherwise. See, e.g., Miller, 145 F.3d at 619 n.1

(“[T]o provide guidance to the district courts, and hence

facilitate the orderly administration of justice in these cases, we

have followed the practice, whenever we decide an AEDPA

issue that arises under § 2254 and the same holding would

analytically be required in a case arising under § 2255, or vice

versa, of so informing the district courts.”). We see no reason to

depart from this practice here.

Third, such an approach is consistent with the interests

served by statutes of limitations generally. Limitations periods

“protect defendants and the courts . . . ,” United States v.

Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 357, 62 L.Ed.2d 259

(1979) (internal quotation omitted) (emphasis added), because

12

This conclusion is further reinforced, of course, by the purpose

underlying Rule 4 of the Rules Governing Section 2254 and 2255 Cases,

which promotes interests of judicial economy and efficiency.

18

they “free[] . . . courts from adjudicating stale claims,” Sun Oil

Co. v. Wortman, 486 U.S. 717, 736, 108 S.Ct. 2117, 2129, 100

L.Ed.2d 743 (1988) (Brennan, J., concurring). They also support

“‘the minimization of unnecessary litigation.’” Felder v. Casey,

487 U.S. 131, 154, 108 S.Ct. 2302, 2315, 101 L.Ed.2d 123

(1988) (White, J., concurring) (internal quotation omitted).

These public and judicial interests transcend the parties to a

litigation in the same way as the interests furthered by the

AEDPA’s limitations period. See Long, 393 F.3d at 402-04;

Robinson, 313 F.3d at 134-37; Banks, 271 F.3d at 533 n.4; Artuz,

221 F.3d at 123. 13

Because there exist sound reasons to approach the

AEDPA limitations period the same under both §§ 2254 and

2255, and because to do so is faithful with both Congress’ intent

and our habeas jurisprudence, we hold that our § 2254 decisions

in Robinson and Long apply to AEDPA limitations issues arising

under § 2255.

C.

We return to the four main issues we asked the parties

13

Moreover, limitations periods should be construed consonant

with the legislative scheme they support. See, e.g., American Pipe &

Const. Co. v. Utah, 414 U.S. 538, 557-58, 94 S.Ct. 756, 768, 38

L.Ed.2d 713 (1974). As discussed throughout this opinion, Congress

plainly intended strict reform of habeas corpus in passing the AEDPA,

and the practical problems of attempting to re-litigate matters which are

many years old are obvious.

19

and amici to brief.

(1) With regard to the government’s ability to waive

the AEDPA statute of limitations, all of the parties and both

amici agree that, under our decisions in Miller, Robinson, and

Long, discussed supra, the limitations period is not jurisdictional

and therefore is subject to equitable considerations such as

waiver. We accordingly reaffirm our holdings on these issues in

these cases.

The more difficult question, which we address infra,

remains: whether a party’s waiver of a defense, intentional or

not, may impact the exercise of an inherent power that a court

may possess in the circumstances presented here. We

foreshadow our answer by observing that neither the parties nor

amici have cited to us authority requiring that a party’s waiver of

a defense must necessarily curtail the inherent powers of a court.

(2) As to the second main issue, whether courts ever

have the power to act sua sponte in the circumstances here, the

answer is plainly yes. First, as we have discussed supra, the

cases confirm, in similar contexts, an analogous power. See,

e.g., Granberry, 481 U.S. at 134-35, 107 S.Ct. 1671; Sweger,

294 F.3d at 520-21; Szuchon, 273 F.3d at 321 n.13. This

authority is persuasive with respect to the issue before us

because we have already recognized that the AEDPA statute of

limitations is “like other procedural habeas issues.” Long, 393

20

F.3d at 404. The application of such cases to the circumstances

before us also conforms with sua sponte jurisprudence

generally.14

Second, while two circuits disagree with our conclusion

in Long as to when a court may act sua sponte, all of the courts

of appeals that have considered the issue agree that courts do

possess a sua sponte power to raise the limitations issue. See,

e.g., Hill v. Braxton, 277 F.3d 701, 705-06 (4th Cir. 2002)

(“Even though the limitations period is an affirmative defense, a

federal habeas court has the power to raise affirmative defenses

14

In addition to the powers Granberry observed, courts may

dismiss sua sponte for other reasons as well. See, e.g., Acosta, 221 F.3d

at 121 (collecting cases); Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir.

1999) (collecting cases). Nor is the power limited to the habeas context.

See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 502, 67 S.Ct. 839,

840, 91 L.Ed.2d 1055 (1947) (inherent power to dismiss pursuant to the

doctrine of forum non conveniens); Molinaro v. New Jersey, 396 U.S.

365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (inherent power to

dismiss if the defendant is a fugitive).

Analogously instructive is the Supreme Court’s decision in Link

v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

Link rejected the argument that the power afforded to civil defendants

under Fed. R. Civ. P. 41 to move for involuntary dismissals necessarily

extinguishes, by negative implication, the courts’ powers to dismiss sua

sponte. Link, 370 U.S. at 629-30, 82 S.Ct. 1388 (observing courts have

inherent power to dismiss sua sponte “to clear their calendar of cases .

. . dormant because of inaction or dilatoriness . . . .”). Link counsels that

concerns arising from sua sponte dismissals are best addressed not by

curtailing inherent powers, but rather by determining whether a court has

acted “within the permissible range of the court’s discretion.” Id. at

633, 82 S.Ct. 1389. We did as much in Long, an approach we reaffirm

today.

21

sua sponte . . . . We agree with our sister circuits that have

determined a district court has the power to raise the limitations

defense [to a § 2254 petition] sua sponte.”); Jackson v. Sec’y for

the Dep’t of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (per

curiam) (“we hold that the district court possessed the discretion

to raise sua sponte the timeliness issue”); Artuz, 221 F.3d at 124

(holding “a district court has the authority to raise the AEDPA

statute of limitations on its own motion”); Kiser v. Johnson, 163

F.3d 326, 329 (5th Cir. 1999) (“In holding that Fed. R. Civ. P.

8(c) does not bar sua sponte consideration of the AEDPA’s

statute of limitations provision, we follow a long line of

precedent establishing the authority of courts to raise non-

jurisdictional defenses sua sponte in habeas cases.”). See also

United States v. Sosa, 364 F.3d 507, 510 (4th Cir. 2004)

(applying Hill to motion filed under § 2255).

The decisions contra to our decision in Long with respect

to when a district court may sua sponte raise the limitations issue

do not suggest that courts lack the inherent power in the first

place. See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001)

(“The district court . . . had the authority to raise the [AEDPA]

statute of limitations sua sponte.”); Nardi v. Stewart, 354 F.3d

1134, 1141 (9th Cir. 2004) (reaffirming Herbst’s holding that a

district court may raise sua sponte the limitations defense, but

narrowing the time period in which the court can do so); Scott v.

Collins, 286 F.3d 923, 930 (6th Cir. 2002) (holding Rule 4 does

not give a district court “continuing” power to dismiss sua

22

sponte after the Rule 4 period ends).15

As we discussed supra and first articulated in Long, the

interests underlying the AEDPA’s statute of limitations that are

applicable to § 2255 motions are furthered, not hindered, by

courts exercising discretionary power sua sponte in post-answer

cases such as those before us here. See Long, 393 F.3d at 402-

03 (identifying interests of judicial economy and finality of

judgments); Robinson, 313 F.3d at 137 (identifying “precious

legal and judicial resources”). See also Banks, 271 F.3d at 533

n.4 (recognizing the public reputation of judicial proceedings

and the public interest generally); Kapral, 166 F.3d at 571

15

Thus it cannot be doubted that, at the very least, courts possess

a sua sponte power during those stages of a habeas case governed by

Rule 4 of the Rules Governing Section 2254 and Section 2255 Cases.

That rule states in pertinent part:

If it plainly appears from the motion, any attached

exhibits, and the record of prior proceedings that the

moving party is not entitled to relief, the judge must

dismiss the motion and direct the clerk to notify the

moving party.

See § 2255 Rule 4(b); see also § 2254 Rule 4. As this language

anticipates, the issues relevant to timeliness may not all appear on the

face of a motion or petition, and for this reason courts should give notice

that a limitations problem may exist, as well as provide an opportunity

for a habeas movant or petitioner to respond. See, e.g., Hill v. Braxton,

277 F.3d 701, 707 (4th Cir. 2002); Acosta v. Artuz, 221 F.3d 117, 121

(2d Cir. 2000). We make no distinction as between habeas movants

filing pro se and those represented by counsel. See, e.g., McMillan v.

Jarvis, 332 F.3d 244, 245 (4th Cir. 2003) (holding Hill’s notification

requirement applies to habeas movants represented by counsel as well as

those proceeding pro se).

23

(recognizing “Congress[’] inten[t] to reduce . . . delayed and

repetitive [habeas] filings”) (internal quotation omitted).

Finally, we consider the argument contra, a thumbnail

sketch of which is this: Habeas cases are civil, governed by the

Federal Rules of Civil Procedure. As such, the AEDPA statute

of limitations must be treated like any other in a civil case.

Therefore, it is a defense possessed by the habeas respondent

alone, and courts may not intervene.

The argument plainly rests on the premise that habeas

cases and ordinary civil cases are indistinguishable, something

we disagreed with in Long and do so again today. See, e.g.,

Harris v. Nelson, 394 U.S. 286, 293-94, 89 S.Ct. 1082, 1087-88,

22 L.Ed.2d 281 (1968) (“It is, of course, true that habeas corpus

proceedings are characterized as ‘civil.’ . . . But the label is

gross and inexact. Essentially, the proceeding is unique.

Habeas corpus practice in the federal courts has conformed with

civil practice only in a general sense.”) (internal citations and

footnote omitted); Long, 393 F.3d at 402 (“While civil in nature,

habeas corpus cases are different from ordinary civil cases where

only the interests of the parties are involved.”) (citing Acosta,

221 F.2d at 123); see also O’Brien v. Moore, 395 F.3d 499, 505

(4th Cir. 2005) (noting the unique hybrid nature of habeas

actions and collecting cases observing same); Walker v. O’Brien,

216 F.3d 626, 636 (7th Cir. 2000) (observing that habeas cases

are a “group unto themselves”); Brown v. Vasquez, 952 F.2d

24

1164, 1169 (9th Cir.1991) (noting habeas corpus is "dramatically

different from any other type of civil action").

As to the claim that the AEDPA statute of limitations is

the government’s alone to use or lose, we have found no

authority supporting such exclusivity. Certainly, we have been

cited to none. As such, we must doubt that Congress intended

to relegate the efficacy of its reforms to the vagaries of a

prosecutor’s decisions or mistakes.16 Similarly, we discern no

Congressional intent to hamstring courts in carrying out its

reforms. The better conclusion is that Congress did not render

the courts powerless.17

16

For this reason, federal habeas courts acting sua sponte need

not invite the government to amend an answer pursuant to Rule 15(a),

nor wait to see if the government responds. See also Carlisle v. United

States, 517 U.S. 416, 437, 116 S.Ct. 1460, 1471, 134 L.Ed.2d 613 (1996)

(Stevens, J., dissenting) (“It is quite wrong . . . to assume that a judge is

nothing more than a referee whose authority is limited to granting or

denying motions advanced by the parties.”). And while government

prosecutors have both prosecutorial discretion and heightened ethical

duties to do justice, such considerations do not justify subordinating

judicial power to the presence or absence of the AEDPA limitations

defense in a government answer or motion.

17

If nothing else, if the power exists, there is nothing to suggest

that Congress has taken it away. While Congress may limit the courts’

inherent powers, we should not “lightly assume that Congress intended

to do so.” Chambers v. Nasco, Inc., 501 U.S. 32, 47, 111 S.Ct. 2123,

2134, 115 L.Ed.2d 27 (1991) (internal quotation omitted). Here, the

statutory language and legislative history are silent, and “something far

more than ambiguous silence is required to withdraw a district court’s

inherent power.” Carlisle, 517 U.S. at 449, 116 S.Ct. at 1477 (Stevens,

J., dissenting).

25

For all of these reasons, we reaffirm Long and hold that

courts have the power to raise the AEDPA limitations issue sua

sponte in cases arising under 28 U.S.C. §§ 2254 and 2255.

(3) What remains are our final two main issues and

their application to the cases before us. For analytical purposes,

they may be combined: Given the courts’ power to raise the

AEDPA statute of limitations sua sponte, at what stages may

they do so, and does it matter if the government has waived?

We hold the answer is once again provided by our

decision in Long. Our analysis there presents no obvious reason

why, given notice and an opportunity to respond, and absent

prejudice to the habeas petitioner or movant, a court’s exercise

of its sua sponte powers should be limited to only the Rule 4

period.18 The spectrum of interests that we identify in Robinson,

Long, and this opinion today – finality and judicial efficiency,

most notably, but also the public interest and the public

reputation of judicial proceedings – are just as ably advanced

18

Although we have not yet had occasion to reach the question,

other courts of appeals have held the AEDPA statute of limitations

constitutional in the face of per se challenges brought under the

Suspension Clause of the United States Constitution, Art. I, § 9, cl. 2.

See, e.g., Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 and n.3

(collecting cases). Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct.

2333, 135 L.Ed.2d 827 (1996) (AEDPA’s restrictions on successive

petitions “do not amount to a ‘suspension’ of the writ”); Swain v.

Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed. 411 (1977)

(holding that the Suspension Clause is violated only where habeas

corpus is rendered “inadequate or ineffective”).

26

post-answer as pre-answer when an untimely case is dismissed

upon a district court’s own motion. Recognition of this

disentangles the overriding federal, judicial, and societal

interests that are relevant to our analysis from those that concern

the parties alone. Further, as we have stated, such an approach is

not only most faithful to Congress’ 1996 habeas reforms, but it is

also most certainly not inconsistent with existing authority. We

have been cited to nothing that requires the inherent sua sponte

power to terminate at the conclusion of the Rule 4 period, and

we can find no such authority ourselves.

The above considerations, which we fully articulated in

Long, are no less persuasive in instances where the government

has either waived the limitations defense or so concedes. Not

only are habeas cases different, but, as for the AEDPA

limitations provision, the government can claim no monopoly on

its use.

To conclude otherwise asks too much of waiver, which

occurs only upon the “‘intentional relinquishment or

abandonment of a known right.’” United States v. Olano, 507

U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)

(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,

1023, 82 L.Ed 1461 (1938)). Unlike ordinary civil litigation, the

practical reality of habeas is that the government may lack, for

long periods of time, the file documents necessary to

knowledgeably analyze timeliness. As amicus Federal Defender

27

observes, habeas cases present “sometimes difficult questions of

time computation.” Brief of Amicus at 13. Indeed, the Supreme

Court has explained:

[D]istrict judges often will not be able to make

[AEDPA limitations] calculations based solely on

the face of habeas petitions . . . . [As] [s]uch

calculations depend on information contained in

documents that do not necessarily accompany the

petitions.

Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 2446, 159

L.Ed.2d 338 (2004) (citation omitted). The result is that, all too

easily, habeas respondents and courts may “err in their

calculation . . . .” Id. at 2447. Even when the record papers are

obtained, it can be difficult to decipher what a pro se habeas

movant has done, meaning many “waivers” will not actually

have been “the result of a purposeful or deliberate decision to

forego the defense.” Scott, 286 F.3d at 931 (Stafford, J.,

dissenting).19 For these reasons and others, Long correctly

19

For these reasons, as a matter of elapsed time, the first

practicable chance to knowledgeably raise a timeliness issue often arises

later in the life of a habeas case than it would in an ordinary civil one.

Thus we have already recognized the need for a longer pre-waiver period

in habeas. See Robinson, 313 F.3d at 136-37 (allowing post-answer

raising of the defense at the “earliest practicable moment”). Long,

consistent with Robinson, then confirmed that prejudice is the “ultimate

issue.” See Long, 393 F.3d at 401. Our earliest practicable moment

standard in Robinson and our prejudice standard in Long correctly

balance the realities summarized in Pliler, 124 S. Ct. at 2446, and a

28

instructs that the analysis in the first instance turns not on

waiver, but rather on whether courts have the inherent power to

protect themselves from habeas abuse, post-answer, consistent

with Congress’ intent, and whether, where a court exercises that

power, the habeas movant is prejudiced.

(4) With these precepts in mind, we turn to the cases

before us. In Bendolph, a judgment entry of this Court was

intentionally and impermissibly altered by someone involved in

filing Bendolph’s petition for a writ of certiorari, to conceal the

untimeliness of a Supreme Court filing. Such an act should not,

of course, be countenanced in any way. Without doubt, the

ability of a court to deal with such a circumstance is inherently

within its sua sponte powers, and does not depend on the

responding party’s position.

The issue before us, however, is whether the District

Court could raise the AEDPA limitations issue on its own

motion, and, if so, whether the exercise of that power was

limited by a government waiver. For the reasons we have

discussed above, we conclude that the District Court did possess

the power to flag the issue sua sponte, and that even if the

government’s actions did constitute waiver, that waiver could

habeas petitioner’s due process rights.

29

not have limited the court’s exercise of its power.20

The questions remaining are (i) whether the District Court

provided Bendolph with adequate notice of the issue and an

opportunity to respond, and (ii) whether Bendolph was

prejudiced by the District Court’s motion. The record shows that

the District Court’s August 24, 2000 order placed both Bendolph

and the government on notice, both by raising the timeliness

issue and by articulating the reasons why Bendolph’s filing

appeared untimely. In that same order, the District Court

expressly invited the parties to brief or otherwise respond to its

analysis. Bendolph was given until September 21, 2000 to

respond. That the District Court’s order constituted sufficient

notice and provided sufficient time and opportunity to respond is

evidenced by the fact that Bendolph filed his memorandum in

response two weeks early, on September 8, 2000. The District

Court subsequently received a letter submission from the

government on October 5, 2000. It then denied Bendolph’s §

2255 motion as untimely about three months later, on January 3,

2001. On these facts, we hold that Bendolph was provided

adequate notice of the timeliness issue, as well as adequate

opportunity to respond.

20

We do not reach the issue of whether the government’s actions

constituted an inadvertent waiver, intentional waiver, or no waiver

because, no matter the answer to that question, the court possessed the

ability to act sua sponte.

30

Because the District Court flagged timeliness after the

Rule 4 period had ended, we must next consider “the ultimate

issue,” prejudice to Bendolph. Long, 393 F.3d at 401. We look

first to how late in the case the limitations issue was raised. Id.

Here, as stated, the District Court raised the issue on August 24,

2000; the government, in turn, did so on October 5, 2000. These

two events occurred almost two years after October 18, 1998, the

date Bendolph filed his § 2255 motion. During that time, the

record reflects the following activity in Bendolph’s case: he

filed a motion to compel discovery, which was denied; the case

was reassigned upon the retirement of the District Judge; and

Bendolph was ordered to make an election pursuant to United

States v. Miller, 197 F.3d 644 (3d Cir. 1999). On these facts, the

raising of timeliness was not so late that Bendolph was

prejudiced. There is no evidence that he had commenced costly

or time-consuming discovery, suffered a loss or a diminution of

his ability to prepare his case, or lost another litigation

opportunity elsewhere. As such, while “[d]elay is related to

prejudice,” and while a period of almost two years may be strong

evidence of prejudice in another case, “[it] was not a problem

here.” Long, 393 F. 3d at 401. The prejudice inquiry looks next

to whether Bendolph had sufficient opportunity to respond to the

issue, once raised. See id. We have already discussed this in

our analysis of notice; such opportunity was plain from the

District Court’s August 24, 2000 order and Bendolph’s

memorandum in response. There is no problem here, either.

Finally, we consider whether the government acted in bad faith.

31

Just as it would be unfair to ascribe the altered judgment entry

date to Bendolph himself, rather than someone acting on his

behalf, it would also be unfair to suggest that the government’s

delay was improper.21 See Long, 393 F.3d at 401

(“[i]nadvertence does not equal bad faith”).

No prejudice arising from the District Court’s sua sponte

flagging of the issue, and notice and an opportunity to respond

having been shown on this record, we affirm the District Court’s

dismissal of the § 2255 motion in Bendolph as untimely.

This leaves Otero. We have already reversed and

remanded for failure to appoint counsel, as discussed supra. As

to the remaining issue of whether the District Court may

consider the apparent untimeliness of Otero’s § 2255 motion sua

sponte on remand, we answer in the affirmative, provided the

District Court gives notice, an opportunity to respond, and a

prejudice analysis consistent with this opinion and our prior

decision in Long.22

21

At the time, we had not yet rendered our decision in Kapral,

supra, and in any event the petition for certiorari had been improperly

altered.

22

Although the issue has not been raised before us, it appears

that the delay in Otero may exceed that in Bendolph and Long, as Otero

filed his § 2255 motion on June 25, 2001. As noted, delay alone is not

dispositive and must be considered along with the other components of

prejudice that we identified in Long and reaffirm today.

32

D.

In conclusion, we hold that, upon finding a potential

AEDPA statute of limitations problem in a habeas case arising

under 28 U.S.C. §§ 2254 or 2255, a court may act sua sponte at

any point in the proceedings, regardless of the government’s

position, provided the court (i) gives notice of the issue and an

opportunity to respond; and, (ii) if the case has passed the Rule 4

stage, also analyzes the prejudice components of Rule 15(a) and

Long that we reaffirm today.23 The application of these

mandatory requirements, like the determination of timeliness

itself, remains subject to plenary review. See Long, 393 F.3d at

396. What remains, including whether to raise timeliness sua

sponte in the first place, and, if so, whether to invite the

government to amend its answer or not, remains within the

district courts’ sound discretion and will not be disturbed absent

an abuse of that discretion. Id.

For the foregoing reasons, the January 3, 2001 order of

the District Court dismissing the § 2255 motion of Herbert

Bendolph is affirmed, and the February 4, 2002 order of the

District Court dismissing the § 2255 motion of Julio Otero and

denying his ineffectiveness of counsel claim is reversed and

23

We leave for another day whether or not a district court may

apply the statute of limitations if the government has intentionally

waived this defense and continues to do so after the district court has

raised the issue.

33

remanded to the District Court for further proceedings consistent

with this opinion.

NYGAARD, Circuit Judge, with whom Judges SLOVITER,

MCKEE, AMBRO and FUENTES join, concurring in part and

dissenting in part:

I concur with the majority that we must reverse the

dismissal of Otero’s ineffective assistance of counsel claim and

remand for the District Court to decide whether Otero is indigent

and qualifies for appointed counsel. I concur with the majority

that, subject to notice and an opportunity to be heard, a district

court may dismiss a habeas petition sua sponte as part of its

preliminary consideration pursuant to Rule 4 of the rules

governing both section 2254 and section 2255 cases. I also

concur with the majority that the one year statute of limitations

contained in the Antiterrorism and Effective Death Penalty Act,

28 U.S.C. §§ 2244(d)(1), 2255, is subject to waiver as a defense

by the government. See Robinson v. Johnson, 313 F.3d 128, 134

(3d Cir. 2002). But thereafter the majority and I part company. I

dissent from the majority’s holding that a district court has the

authority to raise AEDPA’s statute of limitations sua sponte

after the government has failed to raise that affirmative defense

in its answer to the petition.

I.

As an initial matter, I would remand Bendolph’s petition

for a factual finding on the equitable tolling claim he raised on

34

appeal. As explained by the majority, the Clerk of the Supreme

Court mistakenly filed Bendolph’s untimely petition for

certiorari because the date on the copy of our judgment entry

had been altered, making the petition appear timely. Because the

Clerk did not reject his certiorari petition as untimely, Bendolph

believed, in error, that AEDPA’s statute of limitations did not

begin to run on his habeas petition until one year from the date

the Supreme Court denied certiorari. Bendolph, therefore, did

not file his habeas petition within one year of the date his

conviction actually became final as AEDPA requires. See 28

U.S.C. § 2255. On appeal before the panel, he argued that the

mistaken filing of his certiorari petition by the Clerk of the

Supreme Court is grounds for equitable tolling of AEDPA’s

statute of limitations. Because it is unclear who altered the

record, we cannot know whether equitable tolling is appropriate

and we should remand for further factual findings.

AEDPA’s statute of limitations is subject to equitable

tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Out of

a sense of equity, we will toll the statute of limitations when a

petitioner demonstrates reasonable diligence in bringing a claim,

but “has in some extraordinary way been prevented from

asserting his or her rights.” Miller v. New Jersey State Dep’t of

Corr., 145 F.3d 616, 618. In non-capital cases, “attorney error,

miscalculation, inadequate research, or other mistakes have not

been found [by this Court] to rise to the ‘extraordinary’

circumstances required for equitable tolling.” Fahy, 240 F.3d at

244. We have also held, however, that there are “narrow

35

circumstances in which misbehavior of an attorney may merit

such equitable relief.” Seitzinger v. Reading Hosp. & Med.

Cent., 165 F.3d 236, 239 (3d Cir. 1999). For instance, in Nara v.

Frank, 264 F.3d 310, 320 (3d Cir. 2001), a habeas petitioner

accused his attorney of leading him to believe that the attorney

would file a habeas petition on his behalf, and of telling him that

there were no time constraints on habeas petitions. Id. We

found that, if true, the allegations “may constitute extraordinary

circumstances to justify equitable tolling.” Id. Nevertheless,

because the Court was unable to determine the validity of the

accusations, it remanded for a factual finding. Id.

Like in Nara, a remand is presently appropriate.

Although it is unclear who altered the date on this Court’s

judgment entry, the alteration misled the Clerk of the Supreme

Court to believe that Bendolph’s petition for certiorari was

timely. It is entirely possible that the alteration is the result of

clerical error. Indeed, there is no evidence in the record that

Bendolph’s federal public defender altered the document herself,

innocently or otherwise. Nor is there evidence that she

purposefully or knowingly submitted an altered document to the

Clerk of the Supreme Court. If the federal public defender

altered the document, her actions would be sufficiently serious to

constitute an “extraordinary” prevention of Bendolph’s ability to

assert his rights that would merit equitable tolling. I believe it

patently unfair of the majority to acknowledge the altered date

and then simply affirm the District Court without permitting

Bendolph the opportunity to show that he was misled into

36

believing he had time to file his habeas petition. Because the

record does not permit us to determine who is responsible for the

alteration, we should remand for the District Court to make

factual findings, and for it to determine whether the statute of

limitations should be tolled. Under these circumstances, there is

a possibility that Bendolph’s petition was indeed timely.

II.

In the event the petitions were untimely, Rule 5(b) of the

Rules Governing Section 2254 Cases in the United States

District Courts requires that an answer to a habeas petition “must

state whether any claim in the petition is barred by a failure to

exhaust state remedies, a procedural bar, non-retroactivity, or a

statute of limitations.” Section 2254 Rule 5(b) (emphasis

added).24 The phrase “statute of limitations” was added to Rule

5(b) in December 2004 as part of a “stylistic” change meant to

reflect the existing state of the law. See Section 2254 Rule 5,

cmt.

At the time of the amendment, the Courts of Appeals for

24

Although Rule 5(b) of the Section 2255 Rules does not

require the government to state whether any statute of limitations

applies, as the majority points out, “we have followed the practice,

whenever we decide an AEDPA issue that arises under § 2254 and

the same holding would analytically be required in a case arising

under § 2255, or vice versa, of so informing the district courts.”

Miller, 145 F.3d at 619 n.1. I agree with the majority that on the

question of a district court’s continuing authority (or lack thereof)

to raise the statute of limitations sua sponte after the government’s

answer, we should treat section 2254 and section 2255 cases the

same. I reach a different conclusion as to that question, of course.

37

the Sixth, Ninth, and Eleventh Circuits had addressed the effect

of the government’s failure to raise the AEDPA statute of

limitations in its answer on a district court’s authority to

subsequently raise the issue sua sponte. In Scott v. Collins, 286

F.3d 923, 927 (6th Cir. 2002), the Sixth Circuit held that because

AEDPA’s statute of limitations is an affirmative defense, “Rule

8(c) of the Federal Rules of Civil Procedure requires that [the

government] raise it in the first responsive pleading to avoid

waiving it.” 25 The Court held that the government’s failure to

raise the statute of limitations in its answer divests the district

court of its authority to raise the defense sua sponte. Id. at 930.

It explained that a contrary rule would amount to “an

impermissible curing of [the government’s] waiver.” Id. The

Ninth Circuit applied similar reasoning in Nardi v. Stewart, 354

F.3d 1134 (9th Cir. 2004). It held that a “district court lacks the

authority to sua sponte dismiss a habeas petition as time-barred

after the state files an answer which fails to raise the statute of

limitations defense.” Id. at 1141. By contrast, the Eleventh

Circuit, in Jackson v. Secretary for the Department of

Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002), held without

25

The Federal Rules of Civil Procedure may be made

applicable to habeas cases “to the extent they are not inconsistent

with any statutory provisions or [the Habeas] rules.” Section 2254

Rule 11; see Section 2255 Rule 12. Applying Civil Procedure Rule

8(c), which mandates that parties set forth any affirmative defenses

they might have—including the statute of limitations—in a

responsive pleading, is consistent with the mandate of Rule 5(b) of

the Section 2254 Rules that the government shall state in its answer

whether the petition is barred by a statute of limitations.

38

any analysis that the government’s failure to raise the statute of

limitations in its answer has no effect on a district court’s ability

to raise the issue sua sponte. Thus, at the time of this Court’s

decision in Long v. Wilson, 393 F.3d 390 (3d Cir. 2004), there

existed a circuit split. In Long, we sided with the Eleventh

Circuit, id. at 403, and today the majority reaffirms that choice,

albeit in the context of a section 2255 petition rather than a

section 2254 petition. We are on the wrong side of the split

between the circuits.

Underlying the Scott and Nardi decisions is the rule that

generally it is not appropriate for a court to sua sponte raise non-

jurisdictional defenses not raised by the parties. See Acosta v.

Artuz, 221 F.3d 117, 122 (2d Cir. 2000) (“Generally, courts

should not raise sua sponte nonjurisdictional defenses not raised

by the parties.”); cf. Zelson v. Thomforde, 412 F.2d 56, 58 (3d

Cir. 1969) (holding that a court may not raise the defense of lack

of personal jurisdiction—a non-jurisdictional defense because it

does not concern the power of the court to entertain the

suit—once the defendant has waived the issue by appearing).

This rule exists because ours is an adversarial system, which

relies on advocacy by trained counsel. Cf. United States v.

Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring) (“The

rule that points of law not argued will not be considered is more

than just a prudential rule of convenience; its observance, at least

in the vast majority of cases, distinguishes our adversary system

of justice from the inquisitorial one.”). In an adversarial system,

it is not for the courts to bring to light the best arguments for

39

either side; that responsibility is left to the parties themselves.

McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) (“What

makes a system adversarial rather than inquisitorial is . . . the

presence of a judge who does not (as an inquisitor does) conduct

the factual and legal investigation himself, but instead decides

on the basis of facts and arguments pro and con adduced by the

parties.”) (emphasis added). As the Supreme Court has

explained, “[t]he determination of what may be useful to the

defense can properly and effectively be made only by an

advocate.” Dennis v. United States, 384 U.S. 855, 875 (1966).

We should decline to raise non-jurisdictional defenses for

another reason as well: fairness to the other party. Typically, it

is not fair for courts to act as surrogate counsel for one side but

not the other. See United States v. Pryce, 938 F.2d 1343, 1352

(D.C. Cir. 1991) (Silberman, J., dissenting in part) (“We thus

ordinarily have no right to consider issues not raised by a party

in either briefing or argument . . . because of the unfairness of

such a practice to the other party. . . .”); see infra, Part III.A.

Of course I acknowledge that there are exceptions to this

rule of restraint. The Supreme Court has held that, in the

interests of comity and federalism, courts may raise a habeas

petitioner’s failure to exhaust state remedies sua sponte, even if

the government does not. Granberry v. Greer, 481 U.S. 129,

131 (1987); cf. Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d

Cir. 2001) (holding that in the interests of comity and federalism

a court may raise procedural default sua sponte). And in Acosta

v. Artuz, a case relied upon heavily by the Court in Long, the

40

Second Circuit held that courts may raise non-jurisdictional

defenses sua sponte where “the defenses implicate values

beyond the interests of the parties.” Acosta, 221 F.3d at 121.

The Acosta Court held that a district court may raise AEDPA’s

statute of limitations sua sponte because it believed that defense

fosters finality of convictions, promotes judicial efficiency and

conservation of resources, and ensures the accuracy of

judgments by resolving challenges to convictions while the

record is fresh. Id. at 123. However, when a court examines a

habeas petition for facial deficiencies pursuant to Rule 4, and

finding none orders the government to answer, only to have the

government fail to raise timeliness as a defense, each of those

values become substantially less significant. When measured

against the purpose and history of habeas corpus in our

jurisprudence, those values shrink even further.

Initially, the Long Court noted that in considering the

values beyond the interests of the parties served by AEDPA’s

statute of limitations, comity and federalism are the “most

important[].” Long, 393 F.3d at 403. The logic behind this

statement renders it irrelevant. Unlike the defenses of

exhaustion and procedural default, statutes of limitation do not

implicate the interests of comity and federalism. Those defenses

are designed to ensure that state courts have “an initial

opportunity to pass upon and correct alleged violations of

prisoners’ federal rights.” Duckworth v. Serrano, 454 U.S. 1, 3

(1981). The same cannot be said for a statute of limitations.

When a state prisoner’s habeas petition is dismissed as untimely,

41

the prisoner is not permitted to file his action in state court.

Instead, he simply loses the ability to test the legality of his

confinement. In the case of a section 2255 petition filed by a

federal prisoner—as we have here—state courts are not involved

in the trial and sentencing process whatsoever, and thus

federalism and comity are simply irrelevant.

Similarly, judicial efficiency and economy are not

implicated by a post-answer sua sponte dismissal pursuant to

AEDPA’s statute of limitations. If a district court reviews a

petition for deficiencies pursuant to Rule 4 and does not dismiss

it, and the government then fails to raise the statute of

limitations, the parties and the court begin to expend time and

effort on the merits of the petition. At this point, judicial

efficiency and economy are already lost. The very purpose of

affirmative defenses, such as the statute of limitations, is to

conserve judicial resources by requiring the parties to raise them

early in the proceedings. Robinson, 313 F.3d at 134. Rescuing

the government from its folly or inadvertence by permitting a

district court to raise the statute of limitations after the parties

have begun to address the merits of the petition subverts that

purpose, and may even have the opposite effect. If the statute of

limitations is raised late in the proceedings, the parties must then

brief yet an additional issue, which consumes the resources of all

involved. I recognize that by permitting a district court to

dismiss a habeas petition as untimely, some resources may be

saved. But the same can be said for dismissing any lawsuit at

any point. Yet it is not the general practice of this Court to raise

42

the statute of limitations or other affirmative defenses either in

civil or criminal cases in order to conserve judicial resources.

Courts exist to resolve disputes. The resources of the courts

should be used to that end. And what better use of judicial

resources (or higher calling for the federal judiciary for that

matter) could there be than ensuring that no one is incarcerated

in violation of the law?

The majority makes a great deal of the interests of finality

AEDPA was enacted to serve. There is no doubt that habeas

corpus “presents a tension between the desire for finality, an end

to the proceedings, and a desire to provide the chance for

revisions, especially to correct errors.” Erwin Chemerinsky,

Thinking About Habeas Corpus, 37 C ASE W. R ES. L. R EV. 748,

789 (1987). As Professor Chemerinsky has pointed out, “[t]here

obviously must be finality at some point; a time when the

defendant has had sufficient opportunities for review and the

chances of finding an error are too remote to justify further

expenditure of resources.” Id. But on the other hand, conviction

of the innocent or conviction in violation of the Constitution

should not be tolerated. See id. Even those who have strongly

emphasized a preference for curbing the scope of habeas corpus

have acknowledged that “conventional notions of finality” have

diminished significance in the context of habeas. See Henry J.

Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. C HI. L. R EV. 142, 150 (1970) (quotation

omitted).

At the earliest, AEDPA’s statute of limitations begins to

43

run when a prisoner’s conviction becomes final, upon the

conclusion of direct review. See 28 U.S.C. §§ 2244, 2255.

Indeed, it may well not begin for decades if, for instance, the

petitioner relies on a retroactively applicable rule of

constitutional law as recognized by the Supreme Court. 28

U.S.C. §§ 2244(d)(1)(C), 2255. Moreover, AEDPA’s statute of

limitations is subject to equitable tolling. Fahy 240 F.3d at 244.

Many timely habeas petitions, therefore, might not be heard until

years after conviction. In such a situation, the finality of the

conviction is put in jeopardy—which, after all, is the very

purpose of habeas review—as much as when a habeas petition is

untimely filed and the government fails to raise a statute of

limitations defense. Thus, concerns of finality are no more

implicated after the government answers without raising

timeliness than by many, if not most, habeas proceedings where

timeliness is not an issue.

“In our adversary system, it is enough for judges to

judge.” Dennis, 384 U.S. at 875. Advocacy is best left to the

parties. Thus, as a general rule, courts should not raise non-

jurisdictional defenses on behalf of parties who do not raise the

defenses for themselves. Acosta, 221 F.3d at 122. The Supreme

Court has permitted departures from that general rule only when

values beyond the interests of the parties are implicated. See

Granberry, 481 U.S. at 131; see also Szuchon, 273 F.3d at 321

n.13. No such values are sufficiently implicated by a sua

sponte dismissal for lack of timeliness where, as here, the

government has failed to raise the statute of limitations in its

44

answer.

III.

A.

Even if a sua sponte dismissal of the petitions in this case

would serve values beyond the interests of the parties, I would

still dissent because of the damage dismissal would work upon

two countervailing values the majority fails to consider: the

related notions of waiver and fundamental fairness.

The majority’s decision renders the concept of waiver a

nullity. We held in Robinson, 313 F.3d at 134, that AEDPA’s

statute of limitations is subject to waiver. In both Bendolph and

Otero the government explicitly waived that defense.26 And

while the majority reaffirms our holding in Robinson, at the

same time it effectively destroys that portion of Robinson by

holding that the government’s waiver is irrelevant. If a court

may raise a non-jurisdictional defense once it has been waived,

then waiver has no practical effect; it exists in theory alone. See

Haskell v. Washington Township, 846 F.2d 1266, 1273 (6th Cir.

1988) (explaining that if a district court may raise the statute of

limitations sua sponte once it has been waived, “the waiver

aspect of Rule 8(c) would have little meaning”). Thus, as a

26

In United States v. Otero, 02-2624, counsel for the United

States stated during oral argument before the panel: “We waived

the statute of limitations. There’s no question under this Court’s

Robinson decision that we waived the statute of limitations.” (Oral

Argument Tr. at 36). Similarly, in United States v. Bendolph, 01-

2468, counsel for the United States explained, “we waived the

statute of limitations.” (Oral Argument Tr. at 56).

45

result of the majority opinion, it appears that AEDPA’s statute of

limitations is no longer subject to waiver.27 I doubt very much

whether courts will be so forgiving of a procedural error by a

habeas petitioner.28

As for the issue of fairness, Pliler v. Ford, 542 U.S. 225,

124 S.Ct. 2441 (2004), is instructive. In Pliler, the Supreme

Court reversed a decision by the Ninth Circuit, which required

district courts to give pro se habeas petitioners a warning that if

they dismiss their petitions in order to first exhaust state

remedies, AEDPA’s statute of limitations might bar them from

refiling a future petition in federal court. According to the Ninth

Circuit, the failure to provide the pro se habeas petitioner in that

case with such a warning deprived him of the opportunity to

make a “meaningful” choice concerning his petition. Id. at 2445

27

Incidentally, had Congress wanted to protect AEDPA’s

statute of limitations from waiver, it could have done so by statute

as it did for the defense of failure to exhaust state remedies.

Pursuant to 28 U.S.C. § 2254(b)(3), “[a] State shall not be deemed

to have waived the exhaustion requirement . . . unless the State,

through counsel, expressly waives the requirement.” Congress has

afforded the defense of AEDPA’s statute of limitations no such

protection, and even if it had, counsel for the United States

explicitly waived the defense in each of these consolidated cases.

The majority simply excuses that waiver, instead vesting in the

district courts the discretion whether to raise the statute of

limitations sua sponte in any given case. That grant of authority is

likely to create vast disparities concerning the treatment of

government waiver between judges and from one case to the next.

Those disparities will in turn be visited upon petitioners.

28

Indeed, courts routinely dismiss petitions, standing upon

mere punctilios in the law.

46

(citing Ford v. Hubbard, 330 F.3d 1086, 1102 (9th Cir. 2003)).

The Supreme Court disagreed. It held that district courts need

not warn pro se litigants that AEDPA’s statute of limitations

might preclude them from filing any future petitions if they

withdraw a timely petition. Id. at 2446. According to the Court,

explaining habeas procedure and calculating the statute of

limitations are tasks normally reserved for trained counsel, and

“[r]equiring district courts to advise a pro se litigant in such a

manner would undermine the district judges’ role as impartial

decisionmakers.” Id.

While one might argue that it is the pro se habeas

petitioners—who are without the assistance of trained

counsel—who need to be warned by district courts of AEDPA’s

labyrinthine pitfalls most of all, the Court’s decision in Pliler is

clear: district courts may not act as de facto counsel in habeas

proceedings. Fairness dictates that we apply this rule equally to

both sides, but the majority does not. The majority permits a

district court to act as de facto counsel for the government,

working together toward the common goal of dismissal of the

petition. That is unfair. A habeas petitioner gets no help from

the courts, and the government needs none either. If, as Justice

Thomas explained in Pliler, calculating the statute of limitations

is a job ordinarily reserved for trained counsel, then that job

should be left in the able hands of the government’s attorneys.

Any other rule contravenes the fundamental notion that “the

judiciary is on no side. . . . We judges must be strictly neutral

with respect to all cases that come before us.” Pryce, 938 F.2d

47

at 1352 (Silberman, J., dissenting in part).

The Court today permits and perpetuates a double

standard. Cf. Latorre v. United States, 193 F.3d 1035, 1042 n.3

(8th Cir. 1999) (Lay, J., concurring in result only) (“It is ironic . .

. that in a § 2255 case a petitioner may not raise an issue on

appeal when the issue has been procedurally defaulted in the

district court, yet the court expressly ignores this principle when

dealing with the United States government.”). It also sends a

disturbing message: We will aid the government in a habeas

proceeding, but not the petitioner. The mistakes of the

government may be excused and ignored, but any error by the

petitioner is fatal—perhaps figuratively, but too often literally.

The favored-party status the majority affords to the government

in habeas cases undermines both the appearance and fact of

judicial neutrality, and I will have no part in it.29

B.

Habeas corpus is not a luxury or an extravagance to be

tolerated only when convenience permits. It is a fundamental

protection of liberty “against arbitrary and wrongful

29

I do not believe my colleagues in the majority intend to

be less principled or less fair than I. I do believe, however, that the

majority sacrifices a little of both principle and fairness at the altar

of expedience. Courts have admittedly crowded dockets. Those

dockets include many habeas petitions, and I fear that the petitions

with merit are outnumbered by those without. Any rule that would

permit district courts to more easily dispose of habeas petitions

might therefore seem desirable. But when individual liberty is at

stake—as is the case with any habeas petition—expedience and

self-interest ought not inform our decisions.

48

imprisonment” that predates these United States. Chemerinsky,

at 749. The Framers viewed it as “the highest safeguard of

liberty,” Smith v. Bennett, 365 U.S. 708, 712 (1961)—a

protection against arbitrary punishment and convictions to be

“provided for in the most ample manner,” T HE F EDERALIST N O.

83 (Alexander Hamilton). Since the 1970s, however, the road to

habeas relief has “become a narrow[], more tortuous track

among concealed snake-pits and anti-personnel mines calculated

to daze cartographers and daunt a modern Gilgamesh.” Anthony

G. Amsterdam, Foreward to J AMES S. L IEBMAN & R ANDY

H ERTZ, F EDERAL H ABEAS C ORPUS P RACTICE A ND P ROCEDURE,

at v (2d ed. 1994). We continue to pile on “petty procedural

barriers,” resulting in a “Byzantine morass of arbitrary,

unnecessary, and unjustifiable impediments to the vindication of

federal rights.” Coleman v. Thompson, 501 U.S. 722, 758–59

(1991) (Blackmun, J., dissenting). This, in my view, is a great

tragedy.

I constantly counsel myself and my law clerks that

somewhere in the mass of usually convoluted, often marginally-

comprehensible pro se habeas petitions, there is another

Clarence Earl Gideon, or one of the other faceless names for

whom we do issue the Great Writ. Searching for those

meritorious petitions is not only our duty, it is one of our most

important. I am not alone in believing that the writ of habeas

corpus may be the single most significant protection of

individual rights in the Constitution. See Chemerinsky, at 749. I

am simply adding my voice to the chorus. While technically the

49

writ exists only as a procedural device, “its history is inextricably

intertwined with the growth of fundamental rights of personal

liberty.” Fay v. Noia, 372 U.S. 391, 399–400 (1963), abrogated

on other grounds by Coleman, 501 U.S. at 722. A threat to the

writ’s vitality is a threat to those very fundamental rights. “It

must never be forgotten that the writ of habeas corpus is the

precious safeguard of personal liberty and there is no higher duty

than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S.

19, 26 (1939). In the name of reducing the docket of the district

courts, and seduced by the lure of a one-line order, the majority

evades its sacred duty. I dissent.

SLOVITER, Circuit Judge, with whom Judges Nygaard, McKee,

Ambro and Fuentes join, dissenting.

I join Judge Nygaard’s dissent but wish to note

additionally that the opinion in Long v. Wilson, 393 F.3d 390

(3d Cir. 2004), deviates from this court’s well-established rule

that “a holding of a published opinion of the court may not be

overruled without the approval of a majority of the en banc

court.” Third Circuit IOP A(2). Although the opinion of the

majority in this case refers to our decision in Robinson v.

Johnson, 313 F.3d 128 (3d Cir. 2002), without overruling it, the

majority relies on our subsequent opinion in Long which, while

also purporting to accept the Robinson holding, in fact

eviscerates it. Notwithstanding the Commonwealth’s failure to

timely raise the statute of limitations defense, Long allowed the

50

Commonwealth to recoup that defense fourteen months later by

its “endorse[ment] [of] the Magistrate Judge’s view that the

habeas petition was untimely.” Id. at 395. The Long court, by

applying the stratagem of a constructive Rule 15(a) amendment,

effectively nullified the Robinson requirement that the

Commonwealth assert its statute of limitations defense in a

timely manner.

The only effect of holding that the Government (or the

Commonwealth in an appropriate case) waived its statute of

limitations defense is that the matter will proceed on the merits.

If the petitioner cannot show that his or her constitutional rights

have been violated, the District Court will undoubtedly grant

summary judgment for the Government in short order. If the

petitioner has sufficient evidence of a violation of his or her

rights, then the purpose of the habeas corpus statute will have

been fulfilled.

Unlike the majority, I do not believe that “the public

interest and the public reputation of judicial proceedings” will

suffer if this court holds the Government to its waiver of the

statute of limitations. Maj. Op. at 25. Indeed, it should only

enhance its reputation by applying the procedural rules equally to

petitioners and to the Government.

51