# United States v. Herbert L. Bendolph, at No. 01-2468 United States of America v. Julio Otero, at No. 02-2624

> Court of Appeals for the Third Circuit · May 16, 2005 · 409 F.3d 155

URL: https://www.frixlaw.com/law-library/cases/9498026

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 16, 2005
- **Citations:** 409 F.3d 155; 2005 U.S. App. LEXIS 8635; 2005 WL 1134860
- **Precedential status:** Published
- **Opinion:** Dissent by Sloviter
- **Judges:** Scirica, Sloviter, Nygaard, Roth, McKee, Rendell, Barry, Ambro, Fuentes, Smith, Fisher, Van Antwerpen
- **Cited by:** 126 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498026

## How later opinions describe it (automated extraction)

- stating that, although the government did not dispute the petitioner's likely indigence as a federal inmate since 1996, “[t]he record is unclear as to whether Otero is indigent and the District Court should inquire as to his status” and that, “[s]hould he qualify as indigent, …
- concluding that district courts may raise sua sponte the Antiterrorism and Effective Death Penalty Act (“AEDPA”) limitations period provided that the petitioner is given notice of the timeliness issue and an opportunity to respond
- holding that district courts may sua sponte raise AEDPA’s one-year statute of limitations, provided that the petitioner is provided with notice and an opportunity to respond
- holding that one-month notice for habeas corpus petitioner to prepare brief on issue of timeliness raised sua sponte is sufficient to avoid prejudice

## Opinion text

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 Commonwealth to recoup that defense fourteen months later by its “endorse[ment] [of] the Magistrate Judge’s view that the habeas petition was untimely.” Long, 393 F.3d 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 166. Indeed, it should only enhance its reputation by applying the *178 procedural rules equally to petitioners and to the Government.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498026. Public record. Not legal advice.