                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2005

USA v. Otero
Precedential or Non-Precedential: Precedential

Docket No. 02-2624




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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
