                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2003

Stewart v. Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1656




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"Stewart v. Hendricks" (2003). 2003 Decisions. Paper 358.
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                                               NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 02-1656


                 VERNOL STEWART,
                            Appellant

                            v.

      ROY L. HENDRICKS, SUPERINTENDENT,
       NEW JERSEY STATE PRISON; JOHN J.
      FARMER, JR., THE ATTORNEY GENERAL
         OF THE STATE OF NEW JERSEY


APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE DISTRICT OF NEW JERSEY
               D.C. Civil No. 00-cv-05207
    District Judge: The Honorable Faith S. Hochberg


        Submitted Under Third Circuit LAR 34.1(a)
                     July 17, 2003


    Before: McKEE, BARRY, and W EIS, Circuit Judges


              (Opinion Filed: July 18, 2003)


                       OPINION
BARRY, Circuit Judge

       On September 27, 1993, after a jury trial in the Superior Court of New Jersey,

appellant Vernol Stewart was convicted of first degree murder, possession of a handgun

without a permit, and possession of a weapon for an unlawful purpose, and was sentenced

to thirty years incarceration without the possibility of parole. He now appeals from the

District Court’s sua sponte dismissal of his petition for a writ of habeas corpus on the

ground that it was barred by the one-year statute of limitations set forth in 28 U.S.C. §

2244(d). For the reasons set forth below, we will vacate the District Court’s order and

remand for further proceedings.




                                             I.

       Stewart filed a direct appeal to the Superior Court of New Jersey, Appellate

Division, which affirmed his conviction on January 9, 1996. On March 26, 1996, the

Supreme Court of New Jersey denied his Petition for Certification. State v. Stewart, 144

N.J. 175, 675 A.2d 1123 (N.J. 1996) (table). Having exhausted his direct appeals, on March

21, 1997, Stewart filed a petition for post-conviction relief with the Superior Court, which

was denied on July 31, 1997. The Appellate Division affirmed the denial, and on October

26, 1999, the Supreme Court denied Stewart’s Petition for Certification. State v. Stewart,

162 N.J. 199, 743 A.2d 851 (N.J. 1999) (table).

       On September 26, 2000, Stewart filed the instant habeas petition pro se, pursuant



                                             2
to 28 U.S.C. § 2254, alleging (1) that his trial and appellate counsel had rendered

constitutionally ineffective assistance; (2) prosecutorial misconduct; and (3) errors by the

trial court in instructing the jury. On April 25, 2001, the District Court ordered

respondents to file an answer to the petition, and, on June 28, 2001, they filed a 39-page

answer which addressed Stewart’s petition on the merits, but did not raise, much less raise

as an issue, the applicable statutory limitations period. Stewart filed a pro se traverse

responding to the answer on July 31, 2001.

       Six months later, on January 23, 2002, the District Court dismissed Stewart’s

petition because it had not been filed within the one-year limitations period prescribed by

28 U.S.C. § 2244(d). The District Court found that section 2244(d)’s one-year period for

filing a habeas petition began to run for Stewart on April 23, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the beginning of the one-

year grace period for claims arising prior to that date. The District Court concluded that,

even after tolling the one-year limitations period for the time that Stewart’s petition for

post-conviction relief was pending before the state courts, the limitations period had run

on November 30, 1999, ten months before Stewart filed his habeas petition. The District

Court’s dismissal of that petition was based solely on its conclusion that it was thus time-

barred, and did not address any other procedural issues or the merits of the petition or

respondents’ answer.

       On February 28, 2002, Stewart filed a notice of appeal with this Court, and on



                                              3
March 15, 2002, we remanded the matter to the District Court with instructions to either

issue a certificate of appealability or to state why such a certificate should not issue. On

March 18, 2002, the District Court issued an order which stated that Stewart was not

entitled to a certificate of appealability because he had not made a substantial showing of

the denial of a constitutional right, and for the reasons it had set forth in its January 23,

2002 order dismissing the petition.

       On November 29, 2002, we issued an order treating Stewart’s notice of appeal as a

request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1), and granted

the request as to the following question: “W hether the district court erred by sua sponte

dismissing Appellant’s petition for a writ of habeas corpus as time barred by the one year

period of limitation prescribed in 28 U.S.C. § 2244(d), where the respondents did not

assert the affirmative defense in their answer to the petition.”




                                              II.

       In our recent en banc decision in Robinson v. Johnson, 313 F.3d 128 (3d Cir.

2002), we held that “because the AEDPA limitations period [28 U.S.C. § 2244(d)] is

subject to equitable modifications such as tolling, it is also subject to other non-

jurisdictional, equitable considerations, such as waiver.” Id. at 134. Accordingly, we held

that the AEDPA’s limitations provision is an affirmative defense, which, just like any

other statute of limitations defense, will be waived if not timely raised by a state



                                               4
respondent to a habeas petition.

       In Robinson, after concluding that a state respondent could waive the limitations

defense, we went on to consider at what point in a habeas proceeding the limitations

defense will be considered waived. We noted that although Federal Rule of Civil

Procedure 8(c) requires that a defendant plead a statute of limitations defense in his or her

answer, the established rule of this Court also allows a statute of limitations defense to be

raised by motion under Federal Rule of Civil Procedure 12(b)(6), “but only if ‘the time

alleged in the statement of a claim shows that the cause of action has not been brought

within the statute of limitations.’” Id. at 135 (quoting Hanna v. U.S. Veteran’s Admin.

Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975). In accordance with these rules, we held that

“affirmative defenses under the AEDPA . . . if not pleaded in the answer . . . must be

raised at the earliest practicable moment thereafter.” Id. at 137.

       In Robinson, the state respondents’ initial response to Robinson’s habeas petition

did not mention the statute of limitations defense, but instead argued that the District

Court lacked jurisdiction to consider the petition because it was a successive petition filed

without authorization from this Court as required by 28 U.S.C. § 2244(b)(3)(A). Only

after we found that Robinson’s petition was not a successive petition precluded by section

2244(b)(3) and remanded the petition to the District Court did the state respondents raise

the limitations defense in their answer.

       Under these facts, we held that the state respondents had not waived the limitations



                                              5
defense. We reasoned that the state respondents’ initial response to Robinson’s petition

was the equivalent of a motion to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(6), and, thus, the affirmative limitations defense need not then have been

raised. Accordingly, the state respondents’ assertion of the limitations defense in their

first pleading after the petition was remanded was timely.

       In light of our analysis and holdings in Robinson, of which the District Court did

not have the benefit when it dismissed the petition, it is clear that the District Court

should not have sua sponte dismissed the petition on the ground it was time-barred under

section 2244(d). Unlike the state respondents in Robinson, respondents here never even

mentioned the limitations defense in any pleading and thereby waived the defense. As we

held in Robinson, the AEDPA’s limitations defense, if not raised in the answer, “must be

raised at the earliest practicable moment thereafter.” Robinson, 313 F.3d at 137. Here,

over six months passed between the filing of the answer to Stewart’s petition and the

District Court’s dismissal. Clearly, the “earliest practicable moment” that respondents

could have raised the limitations issue had long since passed by the time the District

Court dismissed the petition.

       We are not persuaded by respondents’ argument, citing cases decided by other

courts of appeals, that a district court may raise the AEDPA’s limitations provision sua

sponte, so long as the petitioner has notice and an opportunity to be heard. Our holding in

Robinson that the limitations defense can be waived by a state respondent effectively



                                              6
forecloses this argument. Compare Robinson, 313 F.3d at 137, with Herbst v. Cook, 260

F.3d 1039, 1043(9th Cir. 2001) (district court may raise AEDPA limitations provision sua

sponte so long as petitioner is afforded notice and an opportunity to be heard), and Acosta

v. Artuz, 221 F.3d 117, 123-24 (2d Cir. 2000) (same).




                                            III.

       For the foregoing reasons, we will vacate the order of the District Court dismissing

Stewart’s petition for a writ of habeas corpus as time-barred and remand for further

proceedings consistent with this opinion.




TO THE CLERK OF COURT:

       Kindly file the foregoing opinion.




                                      /s/ Maryanne Trump Barry
                                                Circuit Judge
