Robinson v. Johnson ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-11-2002
    Robinson v. Johnson
    Precedential or Non-Precedential:
    Docket 0-1979
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    Recommended Citation
    "Robinson v. Johnson" (2002). 2002 Decisions. Paper 165.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/165
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    PRECEDENTIAL
    Filed March 11, 2002
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 00-1979
    ERIC ROBINSON,
    Appellant,
    v.
    PHILIP L. JOHNSON; THE DISTRICT ATTORNEY OF THE
    COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL
    OF THE STATE OF PENNSYLVANIA, MIKE FISHER
    APPEAL FROM THE
    UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. No. 98-cv-05095)
    District Judge: The Honorable Herbert J. Hutton
    ARGUED OCTOBER 29, 2001
    Before: SLOVITER, NYGAARD, and AMBRO,
    Circuit Judges.
    (Filed: March 11, 2002)
    Paul Rosenzweig, Esq. (Argued)
    Suite 300
    516 C Street, N.E.
    Washington, DC 20002
    Counsel for Appellant
    David C. Glebe, Esq. (Argued)
    Office of the District Attorney
    1421 Arch Street
    Philadelphia, PA 19102
    Counsel for Appellees
    OPINION OF THE COURT
    NYGAARD, Circuit Judge.
    This case arises out of a federal habeas corpus action
    brought by a prisoner in state custody. The Commonwealth1
    originally argued that the prisoner's petition was successive
    and should therefore be dismissed. The District Court
    dismissed the petition as successive, and the prisoner
    appealed. On appeal, the Commonwealth conceded that the
    petition actually was not successive, but offered no
    alternative legal grounds upon which we could have
    affirmed the District Court's decision. Thus, we remanded.
    On remand, the Commonwealth argued for the first time
    that the prisoner's petition was barred by the applicable
    one-year statute of limitations. The prisoner objected to the
    untimeliness of the Commonwealth's assertion of its
    limitations defense, but the District Court dismissed the
    habeas petition as time-barred.
    On appeal, the prisoner argues (1) that the
    Commonwealth waived its limitations defense, or in the
    alternative, (2) that if the Commonwealth did not waive its
    limitations defense, then he is entitled to an evidentiary
    hearing to determine if the statute of limitations should be
    equitably tolled because the Commonwealth allegedly
    _________________________________________________________________
    1. "Commonwealth" will be used throughout this opinion to refer to the
    Appellees collectively.
    2
    deprived him of the legal papers necessary to file his
    petition in a timely fashion. Because we find that the
    Commonwealth did not raise its affirmative defense at the
    earliest practicable moment, we hold that the
    Commonwealth waived its limitations defense.2 We will
    therefore reverse and remand.
    I.
    Appellant, Eric Robinson, was convicted in a bench trial
    before the Court of Common Pleas of Philadelphia of first
    degree murder, conspiracy, theft by unlawful taking,
    robbery, and possession of an instrument of crime. He was
    sentenced to life imprisonment for the murder conviction
    and a concurrent aggregate sentence of twenty to thirty-five
    years imprisonment on the remaining counts.
    Robinson filed a direct appeal in the Pennsylvania
    Superior Court, which affirmed the judgment. See
    Commonwealth v. Robinson, 
    481 A.2d 1376
     (Pa. Super.
    1984) (table). The Pennsylvania Supreme Court denied
    Robinson's request for discretionary review. This ended the
    direct review of Robinson's case.
    Robinson then filed a pro se petition for collateral relief
    under the Pennsylvania Post Conviction Hearing Act
    ("PCHA"),3 42 Pa. Cons. Stat. Ann. SS 9541 et seq. (1984),
    alleging ineffective assistance of counsel. The court
    appointed counsel to represent Robinson, and it
    subsequently denied his petition for relief. This denial of
    collateral relief was affirmed by the Pennsylvania Superior
    Court. See Commonwealth v. Robinson, 
    563 A.2d 194
     (Pa.
    Super. 1989) (table). Robinson did not petition for allocatur
    with the Pennsylvania Supreme Court.
    On August 29, 1991, Robinson filed his first federal
    habeas petition alleging ineffective assistance of trial
    counsel, insufficiency of evidence, and violation of the
    Fourth Amendment. A Magistrate Judge issued a Report
    _________________________________________________________________
    2. Thus, we will not address the equitable tolling argument.
    3. The Post Conviction Hearing Act has since been substantially
    amended and is now titled the Post Conviction Relief Act ("PCRA"), 42 Pa.
    Cons. Stat. Ann. SS 9541 et seq. (2000).
    3
    and Recommendation which concluded that Robinson's
    failure to pursue discretionary review in the Pennsylvania
    Supreme Court of the ineffective assistance of counsel
    claim constituted a procedural default. The District Court
    adopted the Magistrate's Report and Recommendation,
    concluding that the ineffectiveness claim had been
    procedurally defaulted. See Order, Robinson v. Vaughn, No.
    91-5422 (E.D. Pa. Dec. 17, 1991).
    Robinson appealed that decision, and we denied
    Robinson's request for issuance of a certificate of probable
    cause because of Robinson's failure to exhaust his state
    remedies. See Order, Robinson v. Vaughn , No. 91-2107 (3d
    Cir. Apr. 8, 1992). Thus, as to the ineffectiveness claim,
    Robinson's first federal habeas petition was dismissed so
    that he could exhaust his remedies in the Commonwealth.
    Robinson returned to the Commonwealth courts and filed
    a second petition under the PCRA, again alleging ineffective
    assistance of his trial counsel and now also alleging the
    ineffectiveness of his appellate counsel. This application
    was denied, and Robinson did not appeal.
    Robinson filed a third state application for post-
    conviction relief. That petition was denied by the Court of
    Common Pleas. Robinson then appealed to the
    Pennsylvania Superior Court, which affirmed the denial.
    See Commonwealth v. Robinson, No. 
    03093 Phila. 1994
    ,
    
    679 A.2d 257
     (Pa. Super. 1996) (table). Robinson petitioned
    for, and was denied, allocatur by the Pennsylvania Supreme
    Court. See Commonwealth v. Robinson, 
    683 A.2d 880
     (Pa.
    1996) (table).
    Robinson filed his second federal habeas petition, which
    is the one at issue in this appeal, on September 5, 1998,
    alleging ineffective assistance of counsel as a ground for
    habeas relief. His petition also reasserts as grounds for
    habeas relief the insufficiency of the evidence against him
    and the allegedly unlawful seizure of evidence in violation of
    the Fourth Amendment.
    Robinson's petition was referred to a Magistrate Judge
    who ordered a responsive pleading including "specific and
    detailed answers and a brief or memorandum of law in
    support thereof" from the Office of the District Attorney of
    4
    Philadelphia on November 10, 1998. On January 27, 1999,
    the District Attorney filed a letter pleading which argued
    that Robinson's petition should be transferred to the Court
    of Appeals for the Third Circuit because it was a successive
    petition. The District Attorney contended that the denial of
    Robinson's first federal habeas petition in 1991 precluded
    relief because he had not received permission for a
    successive petition from this Court as is required by the
    Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),
    28 U.S.C. SS 2241 et seq. The Magistrate Judge
    recommended denying Robinson's second federal habeas
    petition, and on April 26, 1999, the District Court accepted
    the Magistrate Judge's recommendation and denied the
    petition.
    Robinson appealed that decision, and we ordered the
    District Attorney to show cause why the order dismissing
    the petition should not be summarily reversed in light of
    our decision in Christy v. Horn, 
    115 F.3d 201
    , 208 (3d Cir.
    1997), where we held that when a federal habeas petition
    has been dismissed without prejudice for failure to exhaust
    state remedies, a petitioner, after exhausting his state
    remedies, need not apply to the court of appeals for
    authorization to file a federal habeas action, but may file
    his petition in the district court as if it were his first such
    filing. On December 23, 1999, the District Attorney filed a
    letter brief conceding that Robinson's second federal habeas
    petition indeed was not successive. The District Attorney
    did not present any alternative legal grounds for affirming
    the District Court's conclusion. Thus, we accepted the
    Commonwealth's concession and summarily reversed and
    remanded.
    On remand, Robinson filed a motion to strike his original
    petition and for permission to file an amended petition
    which the Magistrate Judge granted. The District Attorney
    moved for reconsideration of the order permitting Robinson
    to amend his petition. Then on March 30, 2000, the District
    Attorney asserted that Robinson's second federal habeas
    petition was time-barred by the limitations provision of the
    AEDPA, 28 U.S.C. S 2244(d). Robinson, in return, argued
    that the Commonwealth's statute of limitations defense was
    untimely.
    5
    The Magistrate Judge vacated his initial order granting
    Robinson leave to amend his petition, and instead
    substituted a Report and Recommendation adopting the
    District Attorney's argument that Robinson's second federal
    habeas petition should be dismissed on statute of
    limitations grounds. In particular, the Magistrate Judge
    concluded that (1) Robinson's third state petition had not
    been "properly filed" because it involved claims subject to a
    state procedural default rule and did not toll the period of
    limitations; (2) therefore, Robinson's second federal habeas
    petition was required to be filed on or before April 23, 1997;
    (3) alternatively, if the third state habeas petition had been
    "properly filed," then Robinson's second federal habeas
    petition should have been filed on or before September 25,
    1997; and (4) finally, because Robinson had access to his
    legal papers for eleven of the twelve months prior to the
    expiration of the September 1997 limitations period, the
    period of limitations should not be equitably tolled.
    The District Court adopted the Magistrate Judge's Report
    and Recommendation over Robinson's renewed objection
    that the Commonwealth had waived its limitations defense
    and Robinson's further proffer regarding the efforts he had
    made to acquire his legal papers. Robinson noted a timely
    appeal, and the District Court granted his request for a
    certificate of appealability.4 Robinson was granted leave to
    proceed in forma pauperis, and we appointed counsel to
    represent him.
    II.
    A.
    Our first question is whether it is even possible for a
    State to waive its AEDPA limitations defense, an issue
    which we have not yet specifically addressed. The statute of
    _________________________________________________________________
    4. Although Robinson moved in the Court of Appeals for a certificate of
    appealability, it was the District Court which granted the request. This
    is not a problem since the District Court may grant sua sponte a
    certificate of appealability. See Dunn v. Colleran, 
    247 F.3d 450
    , 456 (3d
    Cir. 2001).
    6
    limitations provision of the AEDPA provides, in pertinent
    part:
    A 1-year period of limitation shall apply to an
    application for a writ of habeas corpus by a person in
    custody pursuant to the judgment of a State court. The
    limitation period shall run from the latest of . . . the
    date on which the judgment became final by the
    conclusion of direct review or the expiration of the time
    for seeking such review.
    28 U.S.C. S 2244(d)(1)(A). The District Court dismissed
    Robinson's habeas petition because it was filed beyond this
    1-year period of limitation.
    The law of this Circuit clearly holds that the limitations
    provision of the AEDPA is not jurisdictional in nature. See
    Miller v. New Jersey State Dep't of Corr., 
    145 F.3d 616
    ,
    617-18 (3d Cir. 1998). As such, it is subject to equitable
    modifications such as tolling. 
    Id.
     (citing Oshiver v. Levin,
    Fishbeign, Sedran & Berman, 
    38 F.3d 1380
    , 1387 (3d Cir.
    1994)).
    Other courts of appeals (which, like us, do not view the
    AEDPA limitations period as jurisdictional) have held that a
    limitations defense may be waived by a State defendant in
    a habeas proceeding. See, e.g., Green v. United States, 
    260 F.3d 78
    , 85 (2d Cir. 2001) (finding that "the government
    [had] expressly waive[d] its [AEDPA] statute of limitations
    defense by advocating a remand and ``suggesting' the
    conditions for that remand"); Saucier v. Warden, N.H. State
    Prison, 
    215 F.3d 1312
     (table), 
    2000 WL 739713
     (1st Cir.
    2000) (unpublished opinion) (finding that government did
    not waive its AEDPA statute of limitations defense, even
    though it did not assert the defense in its answer, where
    the petitioner showed no prejudice; thus implying that
    government waiver is possible); Scott v. Johnson , 
    227 F.3d 260
     (5th Cir. 2000) (finding that the government did not
    waive its AEDPA statute of limitations defense, thus
    implying that government waiver is possible); Samuel v.
    Duncan, 
    92 F.3d 1194
     (9th Cir. 1996) (table) (unpublished
    opinion) (AEDPA statute of limitations defense can be
    waived).
    7
    We join these courts of appeals and now hold that
    because the AEDPA limitations period is subject to
    equitable modifications such as tolling, it is also subject to
    other non-jurisdictional, equitable considerations, such as
    waiver.
    B.
    Parties are generally required to assert affirmative
    defenses early in litigation, so they may be ruled upon,
    prejudice may be avoided, and judicial resources may be
    conserved. Habeas proceedings are no exception. Rule 11 of
    the Rules Governing Section 2254 Cases in the United
    States District Courts (the "Habeas Rules") makes the
    Federal Rules of Civil Procedure applicable to habeas
    petitions to the extent they are not inconsistent with the
    Habeas Rules. Federal Rule of Civil Procedure 8(c) requires
    that a defendant plead an affirmative defense, such as a
    statute of limitations defense, in his answer. Rule 8(c)
    states:
    Affirmative Defenses. In pleading to a preceding
    pleading, a party shall set forth affirmatively . . .
    statute of limitations . . . and any other matter
    constituting an avoidance or affirmative defense.
    Fed. R. Civ. P. 8(c).
    The purpose of requiring the defendant to plead available
    affirmative defenses in his answer 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. See Blonder-Tongue Labs., Inc. v. Univ.
    of Ill. Found., 
    402 U.S. 313
    , 350 (1971); see also Williams
    v. Ashland Eng'g Co., 
    45 F.3d 588
    , 593 (1st Cir. 1995)
    ("The purpose of Rule 8(c) is to give the court and the other
    parties fair warning that a particular line of defense will be
    pursued."); Grant v. Preferred Research, Inc. , 
    885 F.2d 795
    ,
    797 (11th Cir. 1989) ("The Supreme Court has held that the
    purpose of Rule 8(c) is to give the opposing party notice of
    the affirmative defense and a chance to rebut it.") (citing
    Blonder-Tongue); Marino v. Otis Eng'g Corp. , 
    839 F.2d 1404
    ,
    1408 (10th Cir. 1988) ("The purpose behind rule 8(c) . . . [is
    to] put[ ] ``plaintiff on notice well in advance of trial that
    8
    defendant intends to present a defense in the nature of an
    avoidance.") (citations omitted); Perez v. United States, 
    830 F.2d 54
    , 57 (5th Cir. 1987) ("The central purpose of the
    Rule 8(c) requirement that affirmative defenses be pled is to
    prevent unfair surprise. ``A defendant should not be
    permitted to ``lie behind a log' and ambush a plaintiff with
    an unexpected defense.' ").
    Technically, the Federal Rules of Civil Procedure require
    that affirmative defenses be pleaded in the answer. Rule
    12(b) states that "[e]very defense . . . shall be asserted in
    the responsive pleading thereto if one is required, except
    that the following defenses may at the option of the pleader
    be made by motion . . . ." The defenses listed in Rule 12(b)
    do not include limitations defenses. Thus, a limitations
    defense must be raised in the answer, since Rule 12(b) does
    not permit it to be raised by motion. However, the law of
    this Circuit (the so-called "Third Circuit Rule") permits a
    limitations defense to be raised by a motion under Rule
    12(b)(6), but only if "the time alleged in the statement of a
    claim shows that the cause of action has not been brought
    within the statute of limitations."5 Hanna v. U.S. Veterans'
    _________________________________________________________________
    5. The "Third Circuit Rule" dates back at least to 1948 when we
    recognized in Hartmann v. Time, Inc., 
    166 F.2d 127
    , 139 (3d Cir. 1948),
    that affirmative defenses are ordinarily pleaded pursuant to Fed. R. Civ.
    P. 8(c), but that the defense could be raised in other ways. See also
    Williams v. Murdoch, 
    330 F.2d 745
    , 749 (3d Cir. 1964) (affirmative
    defense of res judicata may be raised by a motion to dismiss or by an
    answer); Cito v. Bridgewater Twp. Police Dep't , 
    892 F.2d 23
    , 25 (3d Cir.
    1989) ("When reviewing a Rule 12(b)(6) dismissal on statute of
    limitations grounds, we must determine whether ``the time alleged in the
    statement of a claim shows that the cause of action has not been
    brought within the statute of limitations.' " (citations omitted)); Davis
    v.
    Grusemeyer, 
    996 F.2d 617
    , 623 (3d Cir. 1993) (quoting Cito); Oshiver v.
    Levin, Fishbeign, Sedran & Berman, 
    38 F.3d 1380
    , 1385 n.1 (3d Cir.
    1994) ("While the language of Fed. R. Civ. P. 8(c) indicates that a
    statute
    of limitations defense cannot be used in the context of Rule 12(b)(6)
    motion to dismiss, an exception is made where the complaint facially
    shows noncompliance with the limitations period and the affirmative
    defense clearly appears on the face of the pleading."); Rycoline Prods.,
    Inc. v. C&W Unlimited, 
    109 F.3d 883
    , 886 (3d Cir. 1997) (affirmative
    defense must be apparent on the face of the complaint to be subject to
    a Rule 12(b)(6) motion to dismiss).
    9
    Admin. Hosp., 
    514 F.2d 1092
    , 1094 (3d Cir. 1975). "If the
    bar is not apparent on the face of the complaint, then it
    may not afford the basis for a dismissal of the complaint
    under Rule 12(b)(6)." Bethel v. Jendoco Constr. Corp., 
    570 F.2d 1168
    , 1174 (3d Cir. 1978).
    The Commonwealth argues, and we agree, that a
    limitations defense does not necessarily have to be raised in
    the answer. But it does not follow that a limitations defense
    can be raised at any time. Consistent with the purpose of
    Rule 8(c), courts require that defendants assert a
    limitations defense as early as reasonably possible. See
    Davis v. Bryan, 
    810 F.2d 42
     (2d Cir. 1987) ("The statute of
    limitations is an affirmative defense under Fed. R. Civ. P.
    8(c) that must be asserted in a party's responsive pleading
    ``at the earliest possible moment' and is a personal defense
    that is waived if not promptly pleaded.") (citations omitted);
    Banks v. Chesapeake & Potomac Tel. Co., 
    802 F.2d 1416
    (D.C. Cir. 1986); Paetz v. United States, 
    795 F.2d 1533
    (11th Cir. 1986); Hopkins v. Andaya, 
    958 F.2d 881
     (9th Cir.
    1992); Day v. Liberty Nat. Life Ins. Co., 
    122 F.3d 1012
    ,
    1015-16 (11th Cir. 1997) (employer waived statute of
    limitations defense to AEDPA claim by not raising it until
    after a jury verdict in its motion to alter or amend
    judgment).
    Courts routinely consider the timeliness of a limitations
    defense. Although some have adhered to the strict language
    of Rule 8(c), which requires that a limitations defense be
    raised in the answer, others have considered the stage of
    the proceedings at which the limitations defense is first
    raised. For example, the Seventh Circuit in Venters v. City
    of Delphi, 
    123 F.3d 956
     (7th Cir. 1997), found that the
    defendants waived their statute of limitations defense when
    they did not raise it until late in the proceedings. In
    Venters, the defendants did not include their statute of
    limitations defense in their answer to the original and
    amended complaints. 
    Id. at 968
    . Instead,"the first and only
    mention of the statute of limitations came in their reply
    memorandum in support of the motion for summary
    judgment, submitted a year after the case was filed." 
    Id.
    The court acknowledged that many cases "recognize that
    the failure to plead an affirmative defense can be harmless,
    10
    notwithstanding the terms of Rule 8(c)," 
    id.
     , but found that
    in this case the defendants had deprived the plaintiff of fair
    notice and a reasonable opportunity to respond to their
    affirmative defense by not raising it until "the parties had
    largely completed an exhaustive discovery process, and the
    scheduled trial date was only a month away." 
    Id.
     See also
    Strauss v. Douglas Aircraft Co., 
    404 F.2d 1152
    , 1155 (2d
    Cir. 1968) ("[W]here the party seeking to amend [the
    answer] wishes to raise a defense of limitations long after
    the answer was first filed, a court would be remiss if it did
    not carefully balance the effects of such action for it is
    manifest that risk of substantial prejudice increases in
    proportion to the length of defendant's delay in seeking the
    amendment. . . . In sum, the party wishing to raise the
    defense is obliged to plead the Statute of Limitations at the
    earliest possible moment."); Hayden v. Ford Motor Co., 
    497 F.2d 1292
    , 1295 (6th Cir. 1974) ("Whatever the motives
    behind the plaintiff's and defendant's pleading strategy, to
    allow the defendant to raise the bar of the statute of
    limitations after so long a delay [thirty months] and after so
    many intervening acts had occurred, would make a
    mockery of the intent and purpose of the statute of
    limitations."); Int'l Bhd. of Boilermakers, Local 1603 v.
    Transue & Williams Corp., 
    879 F.2d 1388
    , 1396 n.3 (6th
    Cir. 1989) (rejecting limitations defense as untimely when
    first raised in a motion to amend the district court's
    judgment over a year after the suit was filed).
    We have even found a limitations defense to be waived
    where it was pleaded in the answer, but where it was not
    pursued before trial. In Bradford-White Corp. v. Ernst &
    Whinney, 
    872 F.2d 1153
     (3d Cir. 1989), the defendant
    raised the statute of limitations defense in its answer, but
    "it did not file a motion or present argument before the
    district court on the statute of limitations issue at any time
    before or at the trial." 
    Id.
     Then, following a trial and jury
    verdict, the defendant attempted to raise its statute of
    limitations defense in post-trial motions. 
    Id. at 1154
    . We
    did not permit this, finding that "it would be grossly unfair
    to allow a plaintiff to go to the expense of trying a case only
    to be met by a new defense after trial." 
    Id. at 1161
    .
    All of these cases reflect, in one form or another,
    attempts by the courts to keep the consideration of
    11
    affirmative defenses consistent with at least the purpose, if
    not necessarily the language, of Rule 8(c). Affirmative
    defenses must be raised as early as practicable, not only to
    avoid prejudice, but also to promote judicial economy. If a
    party has a successful affirmative defense, raising that
    defense as early as possible, and permitting a court to rule
    on it, may terminate the proceedings at that point without
    wasting precious legal and judicial resources.
    We hold, therefore, that affirmative defenses under the
    AEDPA should be treated the same as affirmative defenses
    in other contexts, and, if not pleaded in the answer, they
    must be raised at the earliest practicable moment
    thereafter.
    The Commonwealth argues that the question of whether
    Robinson's petition was successive was "logically and
    conceptually prior" to the question of whether the petition
    was time-barred. In support, the Commonwealth points out
    that if Robinson's petition were successive, then no matter
    what it contained nor whether or not it was timely, the
    petition could have been dismissed. We disagree. Although
    the Commonwealth is correct that if the petition were
    successive then it could be disposed of no matter if it were
    timely or not, the Commonwealth fails to recognize that the
    converse is equally true -- that is, if the petition were time-
    barred, it did not matter whether the petition were
    successive or not. There is no logical or conceptual priority
    to the limitations defense.
    The Commonwealth took this argument one step further
    during oral argument by pointing to statutory language
    which supports its position that successivity defenses
    should be addressed before limitations defenses. This is not
    an argument that the successivity defense is logically or
    conceptually prior to the limitations defense, but is an
    argument that successivity is statutorily prior to
    limitations. As we will explain, there is some merit to this
    argument, but even accepting it as true does not save the
    Commonwealth's defense.
    The Commonwealth's argument rests upon the statutory
    language of 28 U.S.C. S 2244(b)(3)(A). That section states:
    12
    Before a second or successive application permitted by
    this section is filed in the district court, the applicant
    shall move in the appropriate court of appeals for an
    order authorizing the district court to consider the
    application.
    28 U.S.C. S 2244(b)(3)(A). The Commonwealth placed great
    reliance during oral argument upon the statute's use of the
    word "before." Because a successive petition may not be
    filed in the district court "before" the habeas petitioner
    obtains an order from a court of appeals, the
    Commonwealth argues that successivity defenses must be
    considered before limitations defenses; thus, there is a
    priority between the two created by the text of the statute
    itself. We agree. But the Commonwealth's larger argument
    still fails for two reasons: one textual and one equitable.
    First, the language of S 2244(b)(3)(A) places a limitation
    upon habeas petitioners, and, by implication, upon district
    courts. That subsection does not permit a habeas petitioner
    to file a successive petition in a district court without first
    obtaining an authorizing order from a court of appeals.
    Since a successive petition may not be filed in the district
    court without such an order, the statute also impliedly
    limits the ability of a district court to consider a successive
    petition. While the text of the statute thus limits habeas
    petitioners and district courts, it does not limit in any way
    the Commonwealth or a court of appeals. There is nothing
    whatsoever in S 2244(b)(3)(A) which prohibits the
    Commonwealth from complying with the standard practice
    of asserting all affirmative defenses early in litigation. The
    Commonwealth could have raised its limitations defense in
    the District Court along with its successivity defense;
    nothing in the statute prevented it from doing so.
    Furthermore, nothing in S 2244(b)(3)(A) limits a court of
    appeals from considering a limitations defense as an
    alternative legal ground supporting a District Court's
    decision. Here, at minimum, when the Commonwealth
    conceded before us that Robinson's petition was not
    successive, it could have asserted its limitations defense as
    an alternative legal ground upon which we could have
    affirmed the District Court's order dismissing Robinson's
    habeas petition. Doing so would not have contravened
    13
    S 2244(b)(3)(A) in any way. Thus, the Commonwealth could
    have raised its limitations defense at the earliest practicable
    moment before the District Court or, at the latest, before us
    on its first appeal from the District Court's order without
    offending any statutory provision.
    The second reason why the Commonwealth's position
    fails is equitable. We must not forget that while all of this
    legal wrangling goes on, Robinson has been waiting for
    someone to hear the merits of his habeas petition.
    Robinson's ordeal has been prolonged only because of the
    Commonwealth's mistake. Robinson filed a habeas petition.
    It was not successive, but the Commonwealth argued that
    it was. The District Court agreed with the Commonwealth,
    and Robinson was forced to appeal to vindicate his
    position. When asked on appeal to show cause why the
    District Court's order should not be summarily reversed,
    the Commonwealth suddenly saw the light and realized
    that Robinson's petition actually was not successive. The
    Commonwealth had erred. After the case was remanded,
    and after Robinson had been granted permission to file an
    amended complaint, the Commonwealth finally raised its
    limitations defense. This appeal ensued. Meanwhile,
    Robinson has been waiting in prison. If the Commonwealth
    had successfully raised its limitations defense in a timely
    manner, Robinson's equitable tolling argument may have
    been addressed, and if he were successful, there may well
    have been by now a hearing on the merits of Robinson's
    petition. We think it would be patently unfair to penalize
    Robinson for the Commonwealth's error. A rule requiring
    the Commonwealth to raise all its affirmative defenses at
    the earliest practicable moment will prevent unfairness of
    this kind.
    C.
    We must now apply the rule to the facts of this case. The
    following facts are undisputed:
    1. Robinson filed this habeas action on September 25,
    1998.
    2. The Commonwealth filed its responsive pleading on
    January 27, 1999, in which it argued that
    14
    Robinson's petition was successive and should not
    be heard by the District Court, but the
    Commonwealth did not argue in the alternative
    that the petition was time-barred.
    3. On April 26, 1999, the District Court accepted the
    Commonwealth's argument and denied the petition
    as successive.
    4. Robinson appealed to this Court.
    5. On December 23, 1999, the Commonwealth
    conceded in its response before this Court that
    Robinson's petition was not successive, but the
    Commonwealth did not offer its statute of
    limitations defense as an alternative ground upon
    which to affirm to the District Court.
    6. The case was remanded, and the Magistrate Judge
    granted Robinson's motion to amend his petition.
    7. On March 30, 2000, in a motion to reconsider the
    order granting permission to amend, the
    Commonwealth asserted for the first time that
    Robinson's petition was time barred.
    These facts show that the Commonwealth did not raise
    its affirmative limitations defense at the earliest practicable
    moment, as we require. There were at least three points at
    which the Commonwealth could have easily asserted its
    limitations defense, but it failed to do so each time: (1)
    when it defended against the petition before the Magistrate
    Judge only on exhaustion grounds; (2) when it defended
    against the petition before the District Court only on
    exhaustion grounds; and (3) when it withdrew its
    exhaustion defense before this Court without asserting any
    alternative legal grounds upon which the District Court's
    order could have been affirmed.
    The Commonwealth waited until after the Magistrate
    Judge had granted Robinson's motion to amend his petition
    before finally asserting its limitations defense-- over one
    and a half years after Robinson``s petition was first filed.
    This was hardly the earliest practicable moment. It is not
    simply the passage of one and a half years that makes the
    Commonwealth's defense untimely, but it is the fact that
    15
    court proceedings were on-going during that time where
    the Commonwealth was presented with numerous
    opportunities to raise its limitations defense, and it failed to
    do so each time. The Commonwealth did not raise its
    affirmative limitations defense at the earliest practicable
    moment; therefore, we hold that it waived that defense.
    III.
    In sum, and for the above reasons, we hold that the
    Commonwealth waived its limitations defense to Robinson's
    habeas petition. Therefore, we will reverse the District
    Court's order dismissing Robinson's petition and will
    remand for further proceedings not inconsistent with this
    opinion and judgment.
    16
    SLOVITER, Circuit Judge, dissenting.
    I am pleased to join most of Judge Nygaard's fine opinion
    for the majority. He writes persuasively that a defense of
    the statute of limitations may be waived by a state
    defendant and that the statute of limitations for a habeas
    petition is a defense that can be waived by the state if not
    promptly raised at the earliest practicable moment.
    I part company with my colleagues when they hold that
    the Commonwealth waived its statute of limitations defense
    because it had previously challenged Robinson's habeas
    petition as an impermissible second or successive petition.
    I am unpersuaded that as a general rule a habeas
    defendant may not preliminarily raise a successivity
    challenge without losing the opportunity to raise the
    defense of statute of limitations. I believe that AEDPA
    places the defense of successivity on a different level than
    affirmative defenses, such as statute of limitations.
    Moreover, even if we were ordinarily to put the
    successivity challenge on the same plane as the other
    defenses, I believe that in the circumstances of this case,
    the Commonwealth should not be held to have waived the
    statute of limitations defense when it sought to address as
    a preliminary matter the successive nature of the petition.
    Second or successive petitions for habeas relief have
    always faced significant obstacles to consideration in the
    federal courts because they are, for the most part, wasteful
    of judicial time and effort. The passage of AEDPA in 1996
    strengthened these obstacles by creating a special
    screening process for the consideration of second or
    successive petitions, often referred to as a "gatekeeping
    mechanism." Felker v. Turpin, 
    518 U.S. 651
    , 657 (1996).
    Section 2244(b) provides both procedural and substantive
    limits on the filing of second or successive petitions. One of
    the most significant changes was the requirement that the
    applicant must secure approval from the court of appeals to
    file a successive petition. 28 U.S.C. S 2244(b)(3)(A) (2001);
    H.R. Rep. No. 104-518, at 111 (1996). Unless the court of
    appeals grants such permission, the district court may not
    consider his or her second or successive petition.
    17
    Review of the language of S 2244(b)(3)(A) makes apparent
    the threshold nature of the inquiry into successivity. The
    statute provides:
    Before a second or successive application permitted by
    this section is filed in the district court, the applicant
    shall move in the appropriate court of appeals for an
    order authorizing the district court to consider the
    application.
    28 U.S.C. S 2244(b)(3)(A) (emphasis added).
    I do not agree with the majority that there is no
    significance to the section's introduction to this
    requirement with the word "before." No other defense is
    accompanied by this statutory imperative, and therefore the
    statutory structure gives priority to the successivity
    challenge. The majority agrees that S 2244(b)(3)(A)
    establishes a priority between a successivity defense and a
    limitations defense, which limits the habeas petitioner and
    the district court. Maj. Typescript Op. at 13. It reconciles
    this with its holding that the limitations defense is waived
    because it was not raised at the same time as the
    successivity defense by stating that the statute"does not
    limit in any way the Commonwealth or a court of appeals."
    Maj. Typescript Op. at 13. The majority reasons that"the
    Commonwealth could have raised its limitations defense in
    the District Court along with its successivity defense." Maj.
    Typescript Op. at 13. That is not the way I understand the
    process to work.
    When a second or successive habeas petition is
    erroneously filed in a district court without the permission
    of a court of appeals, the district court's only option is to
    dismiss the petition or transfer it to the court of appeals
    pursuant to 28 U.S.C. S 1631. The statute limits the
    authority of the district court to consider second or
    successive petitions without an order of the court of
    appeals. Neither the district court nor the government has
    the authority to permit the consideration of a successive
    petition in the district court without prior approval from
    this court:
    [O]nly this court may authorize the commencement of
    a second or successive petition. . . . From the district
    18
    court's perspective, it is an allocation of subject-matter
    jurisdiction to the court of appeals. A district court
    must dismiss a second or successive petition, without
    awaiting any response from the government, unless the
    court of appeals has given approval for its filing. Even
    an explicit consent by the government to beginning the
    case in the district court would be ineffectual; the
    power to authorize its commencement does not reside
    in either the district court or the executive branch of
    the government.
    Nunez v. United States, 
    96 F.3d 990
    , 991 (7th Cir. 1996)
    (emphasis in original).
    It would circumvent the intent of the gatekeeping
    function of S 2244 for a district court to proceed to rule on
    the merits of a second or successive petition or on any
    affirmative defense before the court of appeals has made a
    decision whether to let the petition for habeas corpus
    proceed in the district court. As has been explained:
    AEDPA's prior approval provision allocates subject-
    matter jurisdiction to the court of appeals by stripping
    the district court of jurisdiction over a second or
    successive habeas petition unless and until the court
    of appeals has decreed that it may go forward. This
    statutory directive means that a district court, faced
    with an unapproved second or successive habeas
    petition, must either dismiss it or transfer it to the
    appropriate court of appeals.
    United States v. Enigwe, No. 92-00257, 
    1998 U.S. Dist. LEXIS 15149
    , at *11-*12 (E.D. Pa. Sept. 28, 1998) (citations
    omitted) (quoting Pratt v. United States, 
    129 F.3d 54
    , 57
    (2d Cir. 1997)), aff'd 
    248 F.3d 1131
     (3d Cir. 2000)
    (unpublished). Defenses such as the statute of limitations
    would be premature, particularly since successivity is
    reasonably treated as an issue of subject matter
    jurisdiction. See Spivey v. State Bd. of Pardons & Paroles,
    No. 02-10416, 
    2002 U.S. App. LEXIS 976
    , at *5 (11th Cir.
    Jan. 24, 2002) (finding that where prisoner's S 1983 claim
    was the "functional equivalent" of a second habeas petition,
    and "he did not first apply with this Court for permission to
    file a second or successive petition as required by 28 U.S.C.
    19
    S 2244(b)(3)(A), the district court lacked jurisdiction to
    entertain [his] claim"); United States v. Gallegos, 
    142 F.3d 1211
    , 1212 (10th Cir. 1998) (concluding that when
    petitioner failed to obtain "prior authorization" from the
    court of appeals before filing his third habeas petition in
    the district court, the "district court lacked subject matter
    jurisdiction" to decide the petition and its order on the
    merits "must be vacated"); Nelson v. United States, 
    115 F.3d 136
    , 136 (2d Cir. 1997) ("to the extent the district
    court dealt with the [successive] S 2255 motion on its
    merits, the judgment of that court be and it hereby is
    vacated for lack of jurisdiction in that court to entertain the
    motion" because petitioner had not obtained an order
    authorizing such a petition from the court of appeals);
    Pratt, 129 F.3d at 57 (same).
    I find similarly unpersuasive the majority's suggestion
    that the Commonwealth's failure to raise its statute of
    limitations defense in this court constituted a waiver. I do
    not suggest that a court of appeals would not consider the
    statute of limitations defense in deciding whether to grant
    permission to file a successive habeas, but I know of no
    rule, nor does the majority cite one, that requires the
    Commonwealth to raise it at the appellate level. The rules
    governing raising of affirmative defenses apply only to
    pleadings in the district court. Moreover, it is not the
    practice of this court to consider and determine a defense
    that had not been considered in the first instance by the
    district court.
    The majority also finds an equitable reason for its
    decision that the Commonwealth waived the statute of
    limitations defense. It refers to the lengthy period Robinson
    has waited for the court to consider the merits of his
    habeas petition, and places that responsibility on the
    Commonwealth. However, under the circumstances here, I
    do not believe the Commonwealth was unreasonable in
    challenging Robinson's habeas petition as successive.
    Robinson's initial federal habeas petition that was filed in
    1991 (before AEDPA) was dismissed in the District Court
    for procedural default, and this court denied his request for
    the issuance of a certificate of probable cause because of
    his failure to exhaust state remedies. Thus, when Robinson
    20
    filed another federal habeas petition in 1998, the
    Commonwealth argued in the District Court that the
    petition was a second petition under AEDPA which should
    not have been submitted to the District Court without an
    order from this court. The District Court agreed and
    dismissed the petition. Robinson appealed, and this court
    ordered the Commonwealth to show cause why the District
    Court's dismissal should not be reversed in light of Christy
    v. Horn, 
    115 F.3d 201
     (3d Cir. 1997), the decision of this
    court holding that dismissals of habeas petitions for failure
    to exhaust state claims are not dismissals on the merits
    and do not render a subsequent petition second or
    successive under the statute.
    This court's order was directed specifically to the
    Commonwealth filing an answer as to whether the habeas
    petition was successive. As proceedings were directed solely
    to determining whether or not the petition would be allowed
    under the successivity rules, there would have been no
    reason for the Commonwealth, as the majority suggests, to
    raise an alternate ground to uphold the dismissal, which
    might require the development of a record. The scope of
    review in the court of appeals upon a request for
    authorization to file a second or successive petition is
    limited to whether the applicant has made a prima facie
    showing that the petition complies with the habeas
    statute's substantive successive petition standards. 28
    U.S.C. S 2244(b)(3)(C). Because of this limited scope of
    review, the Commonwealth limited its response to the issue
    of successivity.
    After the Commonwealth conceded that Robinson's
    petition was not successive in light of the development of
    the law, this court remanded the petition to the District
    Court "for consideration as if it were [Robinson's] first
    habeas petition." App. at 17. This language mirrors that in
    our decision in Christy where we held that"when a prior
    petition has been dismissed without prejudice for failure to
    exhaust state remedies, no [prior] authorization is
    necessary and the petitioner may file his petition in the
    district court as if it were the first such filing." 
    115 F.3d at 208
     (emphasis added). Once the issue of successivity was
    disposed of, the Commonwealth could then move beyond
    21
    that threshold issue to present defenses to the petition
    such as the statute of limitations. It was only at this point
    that the normal rules regarding the waiver of defenses
    under Fed. R. Civ. P. 8(c) came into effect. Because the
    Commonwealth raised the statute of limitations in its first
    pleading before the District Court on remand, I do not
    believe it has waived this defense. Therefore, I respectfully
    dissent.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    22
    

Document Info

Docket Number: 0-1979

Filed Date: 3/11/2002

Precedential Status: Precedential

Modified Date: 10/13/2015

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