*2 COLE, Before SILER and Circuit STAFFORD, Judges; Judge.* District COLE, J., opinion delivered the court, SILER, J., joined. STAFFORD, (pp. 931-934), D.J. delivered separate dissenting opinion. OPINION COLE, Judge. Circuit Petitioner-appellant Guy Scott, Billy Lee an inmate at the Ross Correctional Institu- Chillicothe, Ohio, tion in appeals the dis- court’s trict order dismissing his for a writ of corpus. The district court dismissed Scott’s habeas petition as barred under the stat- ute of imposed by 28 U.S.C. 2244(d). below, For the reasons stated we REVERSE the district court’s decision and REMAND for further consideration of * Stafford, Florida, The Honorable William H. sitting by designation. Judge States District for the Northern District Title I of lished in 101 of
I. Penalty and Effective Death Antiterrorism jury in the February On 2244(d) (West Act of 28 U.S.C.A. of Common County, Ohio Court Butler Supp.1996).” Respondent timely filed murder, anal for the convicted Scott Pleas page return of writ that did thirty-eight of Lesa *3 and misdemeanor assault rape, peti- that allegation not include an Scott’s sen- received consecutive Buckley. Scott 2244(d) § by tion was barred life for murder years fifteen to of tences After statute of limitations. rape as twenty-five years for to and fifteen of limitations failed to address statute for two concurrent sentences well as issue, issued an magistrate judge order his con- appealed charges. Scott assault explaining why Scott’s was barred assign- identified seventeen victions and 2244(d). order, In the mag- same 1, 1994, August ments of error. On to judge istrate commanded Scott “show Appeals District Court of Twelfth Ohio (20) cause, days writing, twenty in within Citing on all counts. against ruled Scott filing why of this of the date of Order Appeals’ deci- in the Court of four errors not dismiss this action as Court should sion, Supreme to the Ohio appealed Scott receiving time-barred.” After an exten- Court, to review Scott’s which declined responded respond, of time Scott sion to 14,1994. on December ease why the statute of with five reasons limita- through di- having any success Without corpus not bar his habeas tions should collaterally challenged appeal, rect Scott Unpersuaded by the reasons a motion by filing convictions his criminal offered, court the district dismissed Scott the Butler post-conviction relief with for prejudice on statute petition with of Scott’s Septem- County Pleas Court on Common grounds. limitations offered six reasons 1996. Scott ber thoroughly explained va- The district court Pleas Court should why the Common sentence, rejecting its for Scott’s habeas judgment and but basis cate the in reason on November tion on of limitations its rejected each statute petitioning of error the Unit- Citing assignments seven order. For cases decision, to for a writ appealed in Scott Court of Supreme that ed States Ap- certiorari, of District Court court reasoned that the Ohio Twelfth the district him on against begins ruled October to run peals, which of limitations (the to appealed that decision filing 1997. Scott allotted for days time ninety Court, certiorari) Supreme which declined the Ohio after the conclusion of writ of 28,1998. January sys- in appeals review the state all direct criminal Supreme Court tem. Ohio Because repeated rejections Ohio these After December appeal on declined Scott’s courts, his case into the federal Scott took that, court noted were the district 25, 1999, system. January Scott On point, the statute limita- enacted at that corpus in for a writ of habeas petitioned ninety begun running tions would have for the District Court the United States However, mid-March 1995. days later-in days af- of Ohio. Three Southern District 2244(d) did not become recognizing that petition, a federal receiving ter the habeas 24, 1996, the district court April until law (the issued an order magistrate judge of limitations concluded the statute Order”), re- “January which instructed Next, date instead. began to run on that Collins, to file return of spondent, Terry acknowledged under the district court allegation of include” an writ that “should 2244(d)(2), barred petitioner’s claims are “whether properly pendency of during tolled estab- one-year statute of limitations (iv) limitations; post-conviction applying for the statute of applications state
filed Thus, approximately five limitations Scott as a first time habeas relief. petitioner unconstitutionally suspends months had run on the statute limita- tions, corpus.2 reply Scott tolled the statute to these writ by filing post-conviction relief on arguments, state contends 20,1996. 2244(d) September The statute of limita- Scott’s is barred be- 28, 1998, January (i) tions resumed on authority cause court had the Ohio Court declined review consider sua the timeliness of the post-conviction motion for relief. and the district court did not err remaining Because the seven months holding that Scott’s was untime- expired ap- the statute of limitations (ii) ly; properly held that *4 1998, proximately August Scott was not entitled the benefits 25, January petition barred Scott’s (iii) equitable tolling; application and for habeas relief. of the statute of limitations to Scott’s case suspension is not an unconstitutional of the petition, Although dismissed Scott’s Later, corpus. writ habeas Ohio granted the district a certifi- Scott Lawyers Association of Criminal Defense (“COA”) appealability limit- cate of on the and the Ohio Public Defender filed amici ed issue of whether the statute of limita- urging briefs reversal district petition.1 tions habeas barred Scott’s court’s dismissal of Scott’s The COA, appealed timely With the Scott his question of whether district court appellate case to the Sixth Circuit. In his properly applied the statute of limitations brief, realleged Scott his actual innocence to Scott’s habeas is now before rape argued of the anal conviction and this Court. application against the the statute of limi- (i) tations to his for four reasons: II.
respondent waived the statute of limita-
defense;
(ii)
Two initial observations are neces
the court violated its
sary before
duty
impartial by
analyzing
to be fair and
the merits of Scott’s
asserting
First,
appeal.
respon-
waived defense on behalf of the
the Antiterrorism and Ef
dent; (iii)
(“AED-
Scott’s
is entitled
fective Death
Act
Penalty
to the
of 1996
PA”),
24,
equitable tolling
1996,
benefit of
of the statute of
April
became law on
decision,
COA,
intervening Supreme
only
1. An
Court
it considered
the second Slack
McDaniel,
473,
v.
Slack
prong.
evaluating
prong,
After
the first Slack
1595,
(2000), indirectly
in-
the district court concluded that the issuance
Slack,
terrupted
appeal.
Scott's
In
the Su-
proper.
of the COAwas still
preme Court held that in cases where a habe-
procedural
as
has been dismissed on
2. The dissent
interprets
the district court's
reaching
prisoner’s
without
un-
applying
only
COA as
a narrow statute of
claims,
derlying
constitutional
COA
acknowledge
issue. While we
that
(i)
showing
"jurists
after a
that
2253(c)(3)
§
requires
28 U.S.C.
that a habeas
reason would find it debatable whether the
COA,
petitioner specify
appeal
issues for
in a
petition states a valid claim of the denial of a
requirement
excluding
we do not read
(ii)
right”
"jurists
constitutional
and
of reason
arguments
Scott’s
here. The COA allowed
would find it
debatable whether
district
appeal
peti-
Scott to
the issue of whether his
procedural ruling.”
court was correct in its
2244(d)
tion was barred due to the
Id. at
light
A district
to answer and
ability
to dismiss
a habeas
answered
sponte
as an initial
was not a dismissal as an initial
(after
Instead,
giving
petitioner
matter
matter.
impermissible
notice
it was an
heard)
adequate
and an
opportunity
respondent’s
to be
curing
waiver.11
Johnson,
Scott v.
preserved
light
262-63
well
of a district court’s
Cf.
(5th Cir.2000) (explaining in dicta and with
ability
sponte
continued
to dismiss sua
a ha-
out
reference to Rule
that for habeas cases
beas
as an initial matter.
Fisher,
recognized
“we also
that in
we had
'expressly
open
possibility
left
that this
11.The
conclusion that a court cannot dismiss
circumstances,
may,
appropriate
in the
a habeas
based on an
apply
procedural
bar sua
when the
unpleaded
except
affirmative defense
as a
state has waived the defense in the district
preliminary
matter of
review is consistent
pertinent
court.’ We stated that the
concerns
holding
with the
Court's
that a
were
whether
had notice of the
appeals
'required'
"court of
to raise the
opportunity
argue
issue and reasonable
procedural
sponte."
issue of
default sua
Trest
*8
bar,
against the
and whether the state had
Cain,
87, 89, 90-91,
")
'intentionally
(citing
waived the defense.'
(1997) (refusing
to consider
Texas,
Fisher v.
301-02
question
the broader
of whether a court of
Cir.1999)).
appeals may
procedural
raise a
default sua
Fisher,
sponte);
see also
dressed in the Order being appealed.”
Congress intended AEDPA to further
did not ask this
principles
comity,
court to the
finality, and feder-
scope
broaden the
of the district
Taylor,
alism.
Williams
*10
121-122; Kiser,
(2000)
at
at
F.3d
436, 120
146 L.Ed.2d
S.Ct.
Congress
re-
is no doubt
courts have found such a
(stating
“there
329. These
that
doc
to
these
intended AEDPA
advance
consistent not
with the
sult to be
federalism]”).
[comity, finality, and
trines
but also with Rule
purposes AEDPA
purpose, Congress
such
with
Consistent
cases,
Governing
of the Rules
period that
one-year limitations
created a
power
courts the
gives
rule
district
review
to streamline
was meant
summarily
review
dismiss habeas
to
and
court
finality to
to lend
state
process and
respondent
files an
petitions, before
Walker,
Duncan
convictions.
answer,
plainly appears
it
from the
“[i]f
2120, 2128,
any
an-
face of the
and
exhibits
(2001)
year
that “the 1
limita
(recognizing
not enti-
nexed to it
is
2244(d)(1) quite plainly
period tion
Governing
Rules
tled to relief.”
in the
well-recognized interest
serves the
Cases,
duty
in “the
of the
Rule 4. Rooted
see
judgments”);
state court
finality of
applications
frivolous
court to
out
screen
104-518, at 111
Cong. Rep.
H.R.
No.
also
that would be
the burden
eliminate
(1996),
Rep. No.
reprinted in H.R. Conf.
respondent by ordering an
placed on the
(1996),
reprinted
Cong.,
104th
answer,”
unnecessary
Advisory Commit-
(1996) (ex
924, 944
in 1996 U.S.C.C.A.N.
4, the district court’s
tee’s Note
to
AEDPA,
that,
enacting
in
Con
plaining
pe-
authority
summarily
to
dismiss
“to curb
abuse
gress wanted
pol-
titions under Rule
reflects AEDPA’s
corpus” by add
statutory writ of habeas
comity, finality, and
icy considerations
one-year period
among
things, a
ing,
other
clearly “differentiates ha-
federalism and
prisoner
to the time a state
of limitation
re-
other
cases with
beas cases from
civil
from a state
to
habeas relief
has
seek
consideration of affir-
spect
to sua
conviction). Indeed,
by the
recognized
Kiser,
In Granberry v. limitations-also an affirmative defense 134-35, may respondent- be waived (1987), Supreme Court considered the differently. should be treated question appellate an ought of how Advancing important concerns no less to handle a nonexhausted habeas than those advanced the doctrines of respondent when a fails to raise the de procedural default, exhaustion and AED- fense the district court. The Court PA’s statute of limitations must be treated appellate decided that an court is not re by the just federal courts as the doctrines quired respondent’s to treat the failure to procedural of exhaustion and default are raise the defense as an absolute waiver of treated. comity the interests of that, the defense. The Court instead held federalism, a district court has the discre- comity based on the interests of and feder tion to dismiss a procedur- habeas case for alism, appellate an court has the discretion al default nonexhaustion whether or and/or to decide “whether the administration of not the respondent has filed an answer or justice would be by insisting better served exercised a waiver. In the interests of on exhaustion or reaching the merits of finality, judicial forthwith.” not to mention Granberry, economy, U.S. at S.Ct. 1671. federal court likewise should have the dis- cretion to dismiss an untimely habeas case In the of Granberry, wake it is now respondent whether or not the has filed well-recognized that a federal court-either answer or exercised a waiver. That district or circuit-may raise sua Congress what petitioner’s intended when it enacted failure to exhaust state law AEDPA, may remedies and what apply that doctrine Court has au- petitioner’s dismiss the federal situations, case even thorized in analogous and what respondent fails to assert did this case. Finding See, e.g., Johnson, defense. Graham v. error, no I would affirm. (5th Cir.1996) F.3d (rejecting the explicit state’s waiver of the exhaustion
requirement remanding for dismissal
based on petitioner’s failure to ex-
haust). Furthermore, at least nine circuits have relied reasoning on the of Granberry America, UNITED STATES of that, to find in comity, interests of Plaintiff-Appellant, judicial federalism economy, courts also have the deny discretion to relief on the petitioner’s proce- basis of a CORRADO; Tocco; Paul Jack W. Vito dural default despite the failure of the Giacalone; Tocco; Anthony W. Nove preserve properly or raise Corrado, Defendants-Appellees. J. See, e.g., defense. Angelone, Yeatts v. (4th Cir.1999) (col- 261 262 No. 98-2315. cases); lecting Magouirk Phillips, Appeals, States Court of (5th Cir.1998). 357-358 Courts Sixth Circuit. permitted are thus to sua sponte raise failure to procedural exhaust and default- April both affirmative defenses which be waived respondent-before as well as files an answer. why
There is no reason the statute of