United States v. Bendolph ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-16-2005
    USA v. Bendolph
    Precedential or Non-Precedential: Precedential
    Docket No. 01-2468
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    Recommended Citation
    "USA v. Bendolph" (2005). 2005 Decisions. Paper 1096.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1096
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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