CURTIS LONG, Appellant v. HARRY WILSON, SUPERINTENDENT
No. 03-2898
United States Court of Appeals for the Third Circuit
December 29, 2004
2004 Decisions, Paper 4
SCIRICA, Chief Judge, FISHER and BECKER, Circuit Judges
PRECEDENTIAL. On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 02-cv-00728). District Judge: Honorable Arthur J. Schwab. Argued October 26, 2004.
Kenneth M. Argentieri, Esquire
Melissa L. Irr, Esquire
Maureen E. Geary, Esquire
Kirkpatrick & Lockhart LLP
535 Smithfield Street
Pittsburgh, Pennsylvania 15222
Attorneys for Appellant
MICHAEL HANDLER, ESQUIRE (ARGUED)
Assistant District Attorney for Appeals and Legal Research
Office of the District Attorney of Indiana County
3rd Floor, Indiana County Courthouse
Indiana, Pennsylvania 15701
Attorney for Appellee
BECKER, Circuit Judge.
Curtis Long appeals from an order of the District Court which denied his petition for a writ of habeas corpus after concluding that, even though the Commonwealth failed to raise the statute of limitations defense,
I. Facts and Procedural History
Long was found guilty by a jury in Indiana County, Pennsylvania, of involuntary manslaughter in violation of
In August 1995 new counsel was appointed under the Pennsylvania Post Conviction Relief Act,
Long then filed, pro se, an in forma pauperis petition for writ of habeas corpus pursuant to
On June 11, 2002, the Commonwealth answered the habeas petition, provided a complete state procedural history of Long‘s claims, and asserted, citing appropriate authority, that any habeas claim that could fairly be said to have been raised at all levels either on direct appeal or in the first state post-conviction petition was exhausted. Any habeas claim that was raised for the first time in the state habeas/untimely second post-conviction petition or was omitted on appeal to the Superior Court during the original post-
Long filed a reply, in which he urged the court to address his claims notwithstanding his state procedural defaults. Thereafter, there was no activity on the docket until January 2003, when Long‘s case was reassigned to a new United States District Judge following the original judge‘s retirement. In May 2003, the Magistrate Judge filed a Report and Recommendation, in which she recommended that the habeas petition be denied as untimely under
Section
The state habeas petition had no effect on tolling, because an untimely state post-conviction petition is not “properly filed” for purposes of tolling, Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir.), cert. denied, 124 S. Ct. 317 (2003), and, in any event, the limitations period had already run when it was filed. In addition, no other statutory exceptions applied, and there was no basis under our decisions in Miller v. New Jersey State Dep‘t of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998), Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir. 2001), or Johnson v. Hendricks, 314 F.3d 159, 162-63 (3d Cir. 2002), cert. denied, 538 U.S. 1022 (2003), for equitable tolling.
The Magistrate Judge then addressed the issue we are required to decide in this appeal. She noted that the Commonwealth had not raised the statute of limitations as an affirmative defense, which presented the question whether the defense was waived under our decision in Robinson v. Johnson, 313 F.3d 128. Relying on Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000), she concluded that a federal magistrate judge could raise the habeas corpus statute of limitations issue sua sponte because it implicated values “beyond the concerns of the parties.” She cited a footnote in our decision in Banks v. Horn, 271 F.3d 527, 533 n.4 (3d Cir. 2001), rev‘d on other grounds, 536 U.S. 266 (2002), which predates Robinson, wherein we noted, in reliance upon Acosta, among other cases, that a court of appeals could review the AEDPA statute of limitations issue sua sponte even if it were not properly before the court. She further observed that we stressed in Robinson that there is more than one reason why affirmative defenses should be raised as early as is practicable, and one of them is to promote judicial economy, to which she clearly believed she was contributing.
Long, who was not represented by counsel in the District Court, timely filed objections, in which he argued that the court
The District Court did just that. In a Memorandum Order entered on June 4, 2003, the District Court denied the habeas petition as untimely and adopted the Report and Recommendation as the Opinion of the Court. The court stated:
The magistrate judge‘s report and recommendation, filed May 12, 2003, recommended that the Petition be denied as untimely and that a certificate of appealability be denied. Petitioner has filed objections to the report and recommendation in which he asserts that he has demonstrated cause for his procedural default and prejudice therefrom . . . . The magistrate judge recommended that the petition be dismissed because it was not timely filed within the one-year limitations period provided for under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
28 U.S.C. § 2244(d) . The magistrate judge did not find any procedural default so the “cause and prejudice” standard does not apply to this case . . . . In her report and recommendation the magistrate judge discussed the doctrine of equitable tolling which can toll the running of the AEDPA statute of limitations, and properlydetermined that petitioner has not shown a basis for tolling. After de novo review of the pleadings and documents in the case, together with the objections to [the] report and recommendation . . . IT IS HEREBY ORDERED that the Petition be denied as untimely.
Memorandum Order of the District Court, at 1-3 (citation omitted).
Long appealed, and we appointed counsel and granted a certificate of appealability as follows:
[W]hether the respondent to a habeas petition must raise the statute of limitations defense,
28 U.S.C. § 2244(d) , in the answer to the habeas petition or be deemed to have waived it. Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002). Put another way, may the Magistrate Judge in a Report and Recommendation recommend dismissal on the basis of untimeliness when the respondent has failed to raise the defense in its answer, id., and may the state thereafter raise the statute of limitations defense in a supplemental pleading to avoid being deemed to have waived the defense, [and] whether the respondent here may be deemed to have raised the statute of limitations defense in its Answer to Petitioner‘s Objections to the Magistrate Judge‘s Report and Recommendation.
Order of Court (Feb. 20, 2004).6
We have jurisdiction pursuant to
II. The Amendment to the Answer
A. Robinson v. Johnson
Robinson appealed, and we ordered the Commonwealth to show cause why the order dismissing the petition should not be summarily reversed in light of Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997) (where federal habeas petition has been dismissed without prejudice for failure to exhaust state remedies, petitioner need not apply to court of appeals for authorization to file a second habeas action.) The Commonwealth filed a letter brief, in which it conceded that Robinson‘s second federal habeas petition was not successive. The Commonwealth did not present any alternative legal grounds for affirming the district court. We then summarily reversed and remanded.
On remand, Robinson filed a motion to strike his original petition and for permission to file an amended petition. The Commonwealth then filed a pleading, asserting for the first time that Robinson‘s second federal habeas petition was time-barred by AEDPA‘s statute of limitations,
On appeal, we held first that, because the statute of limitations is not jurisdictional in nature, see Miller v. New Jersey State Dep‘t of Corr., 145 F.3d at 617-18, the state may waive the defense. Robinson, 313 F.3d at 134. Because the Federal Rules of Civil Procedure are applicable to habeas petitions to the extent that they are not inconsistent with the habeas rules, we then considered whether
Nevertheless, we expressly held that “a limitations defense does not necessarily have to be raised in the answer.” Id. at 135. We surveyed several cases involving
After discussing Venters and other cases, the panel explained that all of the cases surveyed reflected “attempts by the courts to keep the consideration of affirmative defenses consistent with at least the purpose, if not necessarily the language, of
Applying this rule, we went on to hold that the Commonwealth‘s assertion of its affirmative defense of the statute of limitations was not untimely. We opined that the Commonwealth‘s letter response to Robinson‘s habeas petition seeking transfer to the court of appeals was equivalent to a motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction is a favored defense, id. at 139 (citing
This reference to the “first” pleading on remand was descriptive of the procedural circumstances of Robinson‘s case, i.e., a construction of our holding that the AEDPA statute of limitations defense should, if not pleaded in the answer, be raised at the earliest practicable, or possible, or feasible, moment thereafter. Robinson, 313 F.3d at 137. What the earliest practicable or possible or feasible moment after an answer has been filed might be in another case where the procedural circumstances were different we necessarily left open.
B. Federal Rule of Civil Procedure 15(a): Prejudice and the Role of Delay and Inadvertence
We turn to Long‘s arguments on appeal. Long concedes that Robinson does not impose an absolute requirement that the AEDPA statute of limitations defense be asserted in the answer. However, he argues that he suffered undue prejudice as a result of the delay in raising the defense, and that the Commonwealth should have a compelling reason for failing to assert the defense in the answer. Long argues that Robinson was not meant to grant extra time to those litigants who fail to assert the defense in the answer as a result of inadvertence.
Long relies on a decision from the Second Circuit, Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1156-57 (2d Cir. 1968), which we cited in Robinson, 313 F.3d at 136. In Strauss, the district court granted the defendant leave to amend the answer to plead the statute of limitations defense. On appeal the court reversed, holding that, since the complaint had apprised the defendant of an implied warranty claim, and since the defendant from prior experience should have been aware of the choice of forum issue inherent in the case, the limitations defense should have been raised in the original answer, or at a minimum, within a reasonable time thereafter. The court found that the defendant‘s conduct in raising the defense four years late was inexcusable, and that the plaintiff was substantially prejudiced in that, had the statute been timely pleaded, he might have been able to bring another action in a jurisdiction where his suit would not have been time-barred.
We do not doubt that Strauss correctly states the law, but it provides only general support for Long‘s argument. First, it does not hold that inadvertence on the part of a defendant establishes undue prejudice sufficient to deny an amendment under
The delay here presents a closer question. As Long points out, the Commonwealth took 14 months to assert the defense. Long filed his habeas petition in April 2002, and the Commonwealth did not raise the statute of limitations defense until June 2003. The passage of time factors into the analysis of whether a plaintiff has suffered prejudice by a delay in amending an answer to assert an affirmative defense. See Robinson, 313 F.3d at 136 (citing Venters, 123 F.3d at 968-69; Strauss, 404 F.2d at 1155-56; Hayden v. Ford Motor Co., 497 F.2d 1292, 1295 (6th Cir. 1974); and Int‘l Bhd. of Boilermakers, Local 1603 v. Transue & Williams Corp., 879 F.2d 1388, 1396 n.3 (6th Cir. 1989)). We conclude, however, that the Commonwealth cannot fairly be said to have unduly delayed in raising the AEDPA statute of limitations
The Commonwealth answered the complaint one month after being ordered to do so, and raised the statute of limitations defense one week after Long filed his objections and three weeks after the Magistrate Judge filed her Report and Recommendation. The inactivity on the docket from July 2002 until January 2003 when a new District Judge was assigned, and again from January 2003 until May 2003 when the Magistrate Judge filed her Report and Recommendation, is not attributable to the Commonwealth under the circumstances; indeed, in a case referred to a magistrate judge, once a habeas petition is filed and answered, it seems reasonable for the parties to wait for a Report and Recommendation to be filed before engaging in further pleading. With respect to the question of inadvertence, the Commonwealth concedes in its brief on appeal that it made a mistake in not raising the defense in the answer. It argues, however, that it in effect made a timely and proper amendment of its answer in accordance with
The Commonwealth relies on Block v. First Blood Associates, 988 F.2d 344 (2d Cir. 1993), also from the Second Circuit, where the defendants first raised a statute of limitations defense in a motion for summary judgment four years after the complaint was filed. The district court treated the motion for summary judgment as a motion to amend the pleadings and dismissed the action as time-barred. On appeal the Second Circuit affirmed, holding that there was no showing of prejudice to the plaintiff and no bad faith on the part of the defendant. The court noted in particular the complete absence of bad faith and the fact that the suit “was untimely on the day it was commenced.” Id. at 351. The court rejected the plaintiff‘s argument that his frustrated expectations constituted undue prejudice sufficient to overcome the
Block elaborates a standard for judging prejudice that is compatible with Robinson, 313 F.3d at 136-37, and
We believe that Heyl is instructive here for its treatment of the question of delay as it relates to the larger issue of prejudice, and for its rejection of the argument that a respondent or defendant must supply a compelling reason for the delay even if there is no prejudice. Such a rule, if adopted, would certainly run counter to the well-established rule that amendments should be liberally allowed. Heyl also is instructive for what it teaches about flexibility and the formalities of
C. Summary
Robinson, 313 F.3d at 136-37, the
III. The Sua Sponte Flagging of the Statute of Limitations Issue by the Magistrate Judge
The question that remains is the effect of the Magistrate Judge‘s flagging of the statute of limitations defense once an answer had been filed, and of the Commonwealth‘s response thereto. Our answer to that question was foreshadowed by Banks v. Horn, 271 F.3d 527, a death penalty case which touched preliminarily on the AEDPA statute of limitations before reaching the merits of the petitioner‘s habeas claims. In the footnote cited by the Magistrate Judge, 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 this issue sua sponte. “While ordinarily we do not take note of errors not called to the attention of the Court of Appeals nor properly raised here, that rule is not without exception. 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.‘” Silber [v. United States], 370 U.S. [717,] 717-18, 82 S. Ct. 1287, 8 L. Ed. 2d 798 [(1962)] (internal citations omitted). See also Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000); Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
The Commonwealth had argued unsuccessfully in the district court that Bank‘s federal habeas petition was untimely. Id. at 532. On appeal Banks argued that the timeliness of his habeas petition was not before us because the Commonwealth had not challenged the district court‘s ruling in its counterstatement of issues, and had failed to discuss the issue in its brief except for a conclusory reference to its position in a footnote. We disagreed,
Thus we observed prior to Robinson that the AEDPA statute of limitations is an important issue, the raising of which may not necessarily be left completely to the state. The Banks footnote refers to public interest policies underlying the AEDPA statute of limitations, in terms and by its reliance on Acosta v. Artuz, 221 F.3d 117, a decision also cited by the Magistrate Judge in this case. In Artuz, where a responsive pleading had not yet been filed, the Second Circuit held that, even though the statute of limitations is an affirmative defense, a district court on its own motion may raise the time bar, because AEDPA‘s statute of limitations “implicates values beyond the concerns of the parties” having to do with the finality of convictions. 221 F.3d at 123. The court explained:
The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time. Like the other procedural bars to habeas review of state court judgments, the statute of limitation implicates the interests of both the federal and state courts, as well as the interests of society, and therefore it is not inappropriate for the court, on its own motion, to invoke the doctrine.
Id. (internal quotations and citations omitted). We agree. While civil in nature, habeas corpus cases are different from ordinary civil cases where only the interests of the parties are involved.
In Artuz, the Second Circuit reasoned that the authority of a district judge to raise procedural defenses sua sponte is consistent with Rule 4 of the rules governing habeas corpus, which gives the district court the power to review and dismiss habeas petitions prior to any responsive pleading by the state. Id. Artuz correctly states the law, see also Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002); Herbst v. Cook, 260 F.3d 1039, 1042 & n.3 (9th Cir. 2001); Kiser, 163 F.3d 326, 328-29 (5th Cir. 1999), and is instructive, but
We think it plain that a federal magistrate judge may raise the AEDPA statute of limitations issue in a Report and Recommendation after an answer has been filed. In Granberry v. Greer, 481 U.S. 129, 134-35 (1987), the Supreme Court held that a court has the discretion, in the interests of comity and federalism, to decide whether justice would be better served by insisting that a claim be fully exhausted or by rejecting it if it is plainly lacking in merit. It is now widely recognized that judges have discretion to raise procedural issues in habeas cases. See, e.g., Sweger v. Chesney, 294 F.3d 506, 520-21 (3d Cir. 2002) (whether claim is barred due to procedural default may be considered sua sponte), cert. denied, 538 U.S. 1002 (2003); Smith v. Horn, 120 F.3d 400, 407 (3d Cir. 1997) (discretion to consider exhaustion question afforded by Granberry). For one thing, judicial economy is promoted when a magistrate judge identifies the issue early in the course of a case. The limitations issue here was flagged by the Magistrate Judge as part of the preliminary consideration of the matter. See
Most importantly, however, raising procedural habeas issues furthers the interests of comity and federalism. See Sweger, 294 F.3d at 521; Artuz, 221 F.2d at 123. We have stated that, because these concerns are so important, it is not exclusively up to the parties to decide whether habeas procedural issues should be raised or waived. See, e.g., Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir. 2001).7 Because we see no difference between the habeas corpus statute of limitations and other habeas procedural issues,8
we hold that our decision in Robinson, 313 F.3d 128, does not prevent a magistrate judge from raising the AEDPA statute of limitations defense sua sponte even after an answer has been filed.
There are decisions contra. The Sixth Circuit has held in a 2-1 decision that the state waived the statute of limitations defense by failing to raise it in the answer. Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). The court reasoned that a district court‘s power to sua sponte raise the AEDPA statute of limitations is limited to
The Scott and Nardi decisions are at odds with Robinson and our
IV. Conclusion
In sum, we hold that, consistent with Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002), and our
Notes
(d)(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 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.