Bilal v. North Carolina , 287 F. App'x 241 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6677
WALI FARAD MUHAMMAD BILAL,
Petitioner - Appellant,
versus
STATE OF NORTH CAROLINA,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Senior
District Judge. (1:06-cv-00082)
Argued: May 13, 2008 Decided: July 18, 2008
Before MICHAEL and DUNCAN, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Ryan Stafford Johnson, Third Year Law Student, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia; Neal Lawrence Walters, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant. Mary Carla Hollis, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Amy L. Woolard, Third Year Law Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant. Roy Cooper, Attorney
General of North Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
After a series of failed attempts at obtaining relief in North
Carolina state court, convicted felon Wali Farad Muhammad Bilal
(“Bilal”) filed a pro se petition in federal court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He did so by
completing the standard form habeas petition (“form petition”)
adopted by the Judicial Conference for the United States and
provided to him by the district court. One question on the form
petition instructs would-be petitioners to provide reasons why the
statute of limitations does not bar their petition if their
judgment of conviction became final more than one year prior to the
instant filing. Bilal answered simply, “N/A.” Without further
notice to Bilal, the district court dismissed the petition sua
sponte for untimeliness.
On appeal, Bilal argues that he was not given sufficient
notice and an opportunity to be heard prior to the dismissal as
required by our precedent in Hill v. Braxton, 277 F.3d 701 (4th
Cir. 2002). On the specific facts before us, we agree. We
therefore vacate and remand for the district court to allow Bilal
to clarify or correct his response.1
1
We express no opinion on the merits of Bilal’s argument that
equitable tolling or a statutory exception excuses his month-long
delay in filing his petition.
3
I.
Following a jury trial in North Carolina Superior Court, Bilal
was convicted on October 12, 2001 of two counts of robbery with a
dangerous weapon, two counts of second-degree kidnapping, one count
of simple assault, and one count of assault inflicting serious
bodily injury. He was later sentenced to 394 months’ imprisonment,
and is currently serving out that sentence in a North Carolina
prison.
Since his conviction, Bilal has filed a number of appeals and
petitions within the North Carolina state court system, all of
which have failed.2 Finally, on February 23, 2006, he filed this
habeas corpus petition pursuant to 28 U.S.C. § 2254 with the
District Court for the Western District of North Carolina,
challenging, inter alia, the sufficiency of the evidence to support
his convictions and alleging that both his trial and appellate
2
Because the timeliness of Bilal’s petition is at issue, we
briefly recount the wending path of Bilal’s post-conviction
challenges. First, Bilal appealed his convictions and sentence to
the North Carolina Court of Appeals, which affirmed both on
December 3, 2002. He then filed a petition for writ of certiorari
with the North Carolina Supreme Court, which was denied on August
21, 2003. Bilal next began state post-conviction proceedings by
filing a pro se Motion for Appropriate Relief (“MAR”) on September
30, 2004, which was denied on January 31, 2005. On March 14, 2005,
Bilal filed a petition for a writ of certiorari with the North
Carolina Court of Appeals, which was denied on March 28, 2005. On
April 26, 2005, he filed a second petition for a writ of certiorari
seeking discretionary review by the North Carolina Supreme Court.
This petition was denied on December 1, 2005.
4
counsel provided him with ineffective assistance. He initiated
this collateral attack by filling out the form petition.3
The form petition consists of questions designed to elicit the
salient facts underlying a petitioner’s challenge to his
confinement. Some of the questions are relatively straightforward,
calling for a simple “yes” or “no” answer or soliciting easily
ascertained facts such as dates and names. Others are more open-
ended. The question giving rise to this appeal, question 18, is of
the latter variety. Question 18 reads:
TIMELINESS OF PETITION: If your judgment of conviction
became final over one year ago, you must explain why the
one-year statute of limitations as contained in 28 U.S.C.
§ 2244(d) does not bar your petition.
J.A. 26. The questions ends with a footnote setting forth the text
of 28 U.S.C. § 2244(d)(1)-(2).4 Bilal wrote only “N/A” on the
3
The form petition currently in effect was adopted by the
Judicial Conference in 2003. See Report of the Proceedings of the
Judicial Conference of the United States 36 (Sept. 23, 2003),
available at http://www.uscourts.gov/judconf/sept03proc.pdf; see
also 5B West’s Federal Forms, District Courts, Criminal § 8959
(2007) (adopting the current version of the form petition).
4
Section 2244(d) provides:
(1) 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--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
5
first of twenty-two lines provided to answer the question. His
petition was otherwise complete.
Upon receipt of the petition, the district court concluded on
the face of the filing that Bilal’s § 2254 claims were barred by
the one-year limitations period imposed by § 2244(d),5 dismissing
the petition sua sponte without first discussing with Bilal the
limitations period or any applicable tolling provisions. In a
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
5
The court determined that the limitations period began to run
when Bilal’s “conviction became final on November 19, 2003. [It]
then ran for 316 days until he filed his MAR on September 30,
2004.” J.A. 62. Next, the period was tolled while Bilal’s
post-conviction proceedings were pending, but began again on
December 1, 2005 when his petition for writ of certiorari was
denied by the North Carolina Supreme Court. The period finally
expired 49 days later, on January 19, 2006. Bilal’s habeas
petition was not filed until February 23, 2006.
6
footnote at the end of the order, the district court acknowledged
that, under this court’s holding in Hill v. Braxton, it was
required to warn Bilal, prior to sua sponte dismissal of the
petition, “‘that the case is subject to dismissal . . . absent a
sufficient explanation’” for its seeming untimeliness. J.A. 62 n.2
(quoting Hill, 277 F.3d at 706). The district court determined,
however, that Bilal’s case was distinguishable from Hill because
Bilal “had an opportunity in his form petition to address the
timeliness of his petition and declined to do so.” Id. Thus, the
court determined that “it need not provide [him] with any
additional opportunities to address such matters.” Id.
Bilal filed a pro se notice of appeal, arguing that the
district court “dismissed [his] federal habeas corpus [petition]
without affording [him] notice or an opportunity to be heard . . .
[and that] had he been permitted to [respond], he could have
demonstrated that either a statutory exception or equitable tolling
principles protected his § 2254 petition from dismissal.” J.A. 65.
This court subsequently granted a certificate of appealability and
appointed Bilal counsel to assist in the appeal.
II.
We review de novo the legal question of whether Bilal was
afforded adequate notice and an opportunity to be heard prior to
7
the sua sponte dismissal of his § 2254 habeas petition. See United
States v. Hopkins, 268 F.3d 222, 224 (4th Cir. 2001).
A.
We begin our analysis with a discussion of this court’s
decisions in Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002), and
McMillan v. Jarvis, 332 F.3d 244 (4th Cir. 2003), upon which both
parties extensively rely.
Hill presented the question of whether a federal habeas court
had the power to dismiss sua sponte a pro se petition on the ground
that it was not filed within the one-year limitations period
established by 28 U.S.C. § 2244(d). This court began with the
general principle that “the one-year limitation period contained in
§ 2244(d) is an affirmative defense that the state bears the burden
of asserting.” Hill, 277 F.3d at 705. Nonetheless, this court
held that because § 2254 habeas actions, more so than ordinary
civil actions, “implicate considerations of comity, federalism, and
judicial efficiency,” a district court has the authority to raise
certain affirmative defenses sua sponte in this context. Id. Such
“discretion to raise an affirmative defense to a § 2254 petition
sua sponte and then dismiss the petition based on that affirmative
defense is not completely unfettered,” this court cautioned, and
should not be “automatic.” Id. at 706 (internal quotations
omitted); cf. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th
Cir. 2006) (“[W]e have recognized that a statute of limitations
8
defense may properly be raised sua sponte by a district court in
certain narrow circumstances.” (emphasis added)). Instead, in each
instance, a court should balance the federal interests listed above
against “the petitioner’s substantial interest in justice.” Id.
(internal quotations omitted).
When balancing those interests in Hill, this court reasoned:
Because the statute of limitations is an affirmative
defense, a habeas petitioner is not likely to plead
detailed facts to refute this defense in the initial
§ 2254 petition. . . . Any facts relating to [statutory
or equitable tolling] are [therefore] unlikely to be part
of the record . . . . Thus, when a federal habeas court,
acting sua sponte, dismisses a § 2254 action as untimely
without notice to or input from the petitioner, the court
cannot be certain that there are no circumstances that
would cause the petition to be timely.
Id. at 706-07. This court noted that this problem was compounded
because a pro se petitioner like Hill was unlikely to anticipate
the affirmative defense of untimeliness, especially because the
form petition in use at the time did not direct petitioners to
address the issue. See id. at 707 (“[N]otice and an opportunity to
respond are particularly appropriate when the prisoner is pro se .
. . and the long-standing practice is to construe pro se pleadings
liberally.”). This court therefore held that,
when a federal habeas court, prior to trial, perceives a
pro se § 2254 petition to be untimely and the state has
not filed a motion to dismiss based on the one-year
limitations period, the court must warn the prisoner that
the case is subject to dismissal pursuant to § 2244(d)
absent a sufficient explanation, unless it is
indisputably clear from the materials presented to the
district court that the petition is untimely and cannot
9
be salvaged by equitable tolling principles or any of the
circumstances enumerated in § 2244(d)(1).
Id. (emphasis added); see also Day v. McDonough, 547 U.S. 198, 210
(2006) (“Of course, before acting on its own initiative, a court
must accord the parties fair notice and an opportunity to present
their positions.”).
The following year, this court issued its decision in McMillan
v. Jarvis, 332 F.3d 244 (4th Cir. 2003), which recognized that the
right to notice and an opportunity to be heard extends to counseled
habeas petitioners. In McMillan, this court found no reasonable
basis for distinguishing between pro se and counseled petitioners,
because “[i]n either case, facts supporting a statutory exception
to the one-year limitation period . . . or equitable tolling, are
not likely to be facts included in the habeas record before the
district court. And, in neither case will we require the
petitioner to anticipate a potential statute of limitations
defense.” Id. at 249 (emphasis added).
This court explained that counsel in a habeas case is entitled
to the “legitimate strategic option of not pleading facts in
anticipation of a statute of limitations defense and [instead]
forcing the respondent to bear its own burden of identifying and
raising potentially applicable affirmative defenses.” Id. at 248.
Because counsel could rightfully choose to omit such facts, the
primary concern in Hill remained: a district court that dismisses
a petition as untimely “based solely on the petition” and “‘without
10
notice to or input from the petitioner . . . cannot be certain that
there are no circumstances that would cause the petition to be
timely.’” Id. at 249-50 (quoting Hill, 277 F.3d at 707).
After Hill and McMillan, and similar decisions by courts in
other circuits, see, e.g., Acosta v. Artuz, 221 F.3d 117 (2d Cir.
2000), the United States Judicial Conference adopted the form
petition at issue in this case, which took effect on December 1,
2004. Among other changes, the amended form petition added
question 18 which, as noted above, instructs petitioners to explain
why the § 2244(d) limitations period does not bar their petition if
their judgment of conviction became final over one year prior to
the petition’s filing, setting forth the text of § 2244(d) in a
footnote. It is the interplay between Hill and McMillan on the one
hand and the revised form petition on the other, in the context of
the facts before us, that forms the crux of this appeal.
B.
As a habeas petitioner filing in the Western District of North
Carolina, Bilal was required to “substantially follow” the revised
form petition.6 He claims that question 18 did not provide him
with the notice and opportunity to respond required by Hill. He
6
According to the Rules Governing § 2254 cases, a habeas
“petition must substantially follow either [the form petition] or a
form prescribed by a local district-court rule.” Rules Governing
Habeas Cases, Rule 2(d), 28 U.S.C. foll. § 2254. The Western
District of North Carolina requires that pro se petitioners comply
with the form petition. See Western District of North Carolina Pro
Se Litigant Guide 15 (2006).
11
contends that a contrary finding would oblige petitioners to plead
facts in anticipation of the affirmative defense of untimeliness,
an outcome specifically prohibited by this court in both Hill and
McMillan.7
The government counters, however, that “[t]he notice contained
in the new form § 2254 petition addresses the concerns” of this
court in Hill and McMillan--a petitioner no longer need
“anticipate” the statute of limitations defense because the form
puts a petitioner on notice that he must address the timeliness of
his petition if it is in question. Appellee=s Br. at 5. The
government argues that question 18 adequately informs a petitioner
that his petition is subject to dismissal for untimeliness and that
its inclusion of the text of 28 U.S.C. § 2244(d)--the statute that
sets forth the one year limitations period applicable to § 2254
habeas petitions--makes the statutory bar immediately apparent.
We agree with the government that Hill’s notice requirement is
not particularly onerous. See Hill, 277 F.3d at 708 (“A
particularly detailed notice is not necessary nor is a hearing
necessarily required.”). And, in the ordinary scheme of things,
7
Bilal also notes that while the form petition directs
petitioners to the statutory tolling provisions in § 2244(d) and
even includes the text of the statute, it makes no explicit
reference to the availability of equitable tolling, which may
revive an untimely petition “where--due to circumstances external
to the party’s own conduct--it would be unconscionable to enforce
the limitation against the party.” Hill, 277 F.3d at 704 (internal
quotations omitted).
12
the revised form petition probably serves the twin goals of
achieving increased efficiency for courts and providing notice of
the need to address the statute of limitations issue to
petitioners. On these facts, however, the district court
prematurely pretermitted an inquiry into the facts the form was
designed to elicit on the basis of a response that can only fairly
be described as ambiguous. Used in this way, the form seems in
some tension with Hill in that Bilal was not provided with any
guidance on the timeliness of his particular petition beyond the
mere recitation of the statutory text of § 2244(d). The court’s
failure to clarify Bilal’s confused response is especially
problematic given the notorious complexity of § 2244(d). See id.
at 708 (citing Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975) (“[B]efore entering summary judgment . . ., the District
Court, as a bare minimum, should have provided [the pro se party]
with fair notice of the requirements of the summary judgment rule.
We stress the need for a form of notice sufficiently understandable
to one in appellant’s circumstances fairly to apprise him of what
is required.” (internal quotations omitted) (emphasis added)).
Applying the statute to Bilal’s petition illustrates the point.
The one-year limitations period of § 2244(d) begins to run
from the latest of (a) “the date on which the [petitioner’s]
judgment became final,” § 2244(d)(1)(A); (b) “the date on which the
impediment to filing an application created by State action in
13
violation of the Constitution or laws of the United States is
removed, § 2244(d)(1)(B); (c) “the date on which the constitutional
right asserted was initially recognized by the Supreme Court,”
§ 2244(d)(1)(C); or (d) “the date on which the factual predicate of
the claim or claims presented could have been discovered through
the exercise of due diligence,” § 2244(d)(1)(D). The district
court here assumed that § 2244(d)(1)(B), § 2244(d)(1)(C), and
§ 2244(d)(1)(D) were inapplicable to Bilal’s petition; that is,
that there was no “State action” that impeded Bilal’s filing, that
Bilal asserted only “constitutional rights” that had long been
recognized by the Supreme Court, and that the “factual predicate”
underlying Bilal’s claims was immediately discoverable. Assuming
arguendo that the district court rightfully discounted these
alternatives,8 the limitations period for Bilal’s petition began to
run on “the date on which [his] judgment became final.”
§ 2244(d)(1)(A).
Even this prescription presents a moving target, however,
because a judgment is not “final” until the later of the date on
which direct review of the petitioner’s case concluded or “the
expiration of the time for seeking such review.” Id. The last
stage of direct review is the filing of a petition for writ of
certiorari with the United States Supreme Court. See Harris v.
8
Bilal refutes the district court’s conclusion with respect to
§ 2244(d)(1)(B), claiming that the district court failed to provide
him with the form petition in a timely manner.
14
Hutchinson, 209 F.3d 325, 328 n.1 (4th Cir. 2000). Because Bilal
did not file a petition for writ of certiorari with the Court, his
judgment of conviction became final when “the time for seeking such
review” expired. See § 2244(d)(1)(A). According to Supreme Court
rules, the review period expires ninety days from the denial of a
petition for writ of certiorari with the highest court in the state
of conviction. See Sup. Ct. R. 13(1). Thus, Bilal’s limitation
period began to run on November 19, 2003, ninety days after the
North Carolina Supreme Court denied his first certiorari petition
on August 21, 2003.
Instead of the limitations period expiring one year later on
November 19, 2004, however, the tolling provision of § 2244(d)(2),9
which pauses the limitation period while review of a properly filed
petition is pending, stretched the period until January 19, 2006.
This date--the apparent expiration date of Bilal’s “one year”
limitation period--is more than four years after Bilal’s date of
conviction, but only 35 days prior to his filing the petition at
issue here.
It is in the context of this complexity that Bilal’s ambiguous
response must be viewed. Question 18 begins by stating a
condition: “If your judgment of conviction became final over one
9
“The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.” 28 U.S.C.
§ 2244(d)(2).
15
year ago.” J.A. 26 (emphasis added). It then requires those who
satisfy the condition to state why § 2244(d) does not bar their
petition. Bilal responded “N/A,” J.A. 26, or “not applicable,”
presumably because he thought that he did not satisfy the
condition. Put differently, Bilal may have thought that his
“judgment of conviction” did not “bec[o]me final over one year
ago,” excusing any further explanation of statutory exceptions or
equitable tolling principles that would cause his petition not to
be barred by § 2244(d).
The government interprets Bilal’s response differently,
contending that Bilal simply refused to answer question 18. It
would seem, though, that if Bilal were declining to answer the
question he would simply have left it blank. We think it far more
likely that Bilal’s cryptic answer spawned from his misapprehension
of the term “final,” as his counsel suggests, or from a
misunderstanding of question 18 entirely. Regardless of the reason
behind it, Bilal’s answer was arguably responsive, if confused, not
an outright refusal to answer as the government asserts.
Rather than asking Bilal to expand or clarify his answer, or
inquiring about any statutory exceptions or applicable equitable
tolling principles, the district court promptly dismissed his
petition. It concluded that Bilal “had an opportunity in his form
petition to address the timeliness of his petition and declined to
do so.” J.A. 62 (emphasis added).
16
Though we do not fault the district court for relying on the
form petition in general, we find its response on these facts to be
out of step with our treatment of pro se petitioners in this and
other contexts. See Hill, 277 F.3d at 707 (“[N]otice and an
opportunity to respond are particularly appropriate when the
prisoner is pro se . . . and the long-standing practice is to
construe pro se pleadings liberally.”); cf. id. at 708 (“We also
disagree that Rule 59(e) affords a pro se petitioner . . . an
adequate opportunity to respond.”); Wright v. Collins, 766 F.2d
841, 846 (4th Cir. 1985) (“[W]e hold that a pro se litigant must
receive fair notification of the consequences of [his] failure to
object . . . before such a procedural default will result in waiver
of the right of appeal. The notice must be sufficiently
understandable to one in appellant’s circumstances fairly to
apprise him of what is required.” (internal quotations omitted)
(emphasis added)); Carter v. Hutto, 781 F.2d 1028, 1033 (4th Cir.
1986) (“[W]here . . . the pretrial order did not adequately inform
[the pro se litigant] of the degree of specificity necessary . . .,
and whereas [he] had obviously sought to comply, it was incumbent
on the magistrate to inform [him] of the deficiency of his response
and afford him the opportunity to cure it.”). Indeed, the very
instructions accompanying the form petition here inform petitioners
that if they fail to fill out the form petition properly the
district court will notify them of the error and afford them an
17
opportunity to “submit additional or correct information,” not
immediately dismiss the petition without further correspondence.
5B West’s Federal Forms, District Courts, Criminal § 8959 (2007)
(“If you do not fill out the form properly, you will be asked to
submit additional or correct information.”).
We thus find the district court’s sua sponte dismissal of
Bilal’s petition to be premature. In doing so, we are not
unsympathetic to the burdens that habeas petitions lade upon our
district courts and consequently limit our holding to the narrow
circumstances of this case. Here, the district court was faced
with Bilal’s apparent confusion regarding the timeliness of his
petition and an absence of evidence that he intentionally evaded
the issue. Furthermore, the state had not yet had the opportunity
to assert the expiration of the limitations period, an affirmative
defense that it ordinarily bears the burden of raising. In this
context, we read Hill and McMillan as requiring the district court
to afford Bilal, a pro se petitioner, an opportunity to put forth a
statutory exception or equitable tolling principle that might
explain the relatively brief period by which his petition was late.
See Day, 547 U.S. at 210 (requiring that parties be afforded “fair
notice and an opportunity to present their positions” prior to sua
sponte dismissal (emphasis added)). Otherwise the district court’s
order would once again raise the concerns present in Hill and
McMillan: a district court dismissing a habeas petition without
18
first “be[ing] certain that there [we]re no circumstances that
would cause the petition to be timely.” Hill, 277 F.3d at 707.
III.
For the foregoing reasons the judgment of the district court
is
VACATED AND REMANDED.
19