                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2004

Long v. Wilson
Precedential or Non-Precedential: Precedential

Docket No. 03-2898




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                         NO. 03-2898
                      ________________

                       CURTIS LONG,
                                Appellant

                              v.

           HARRY WILSON, SUPERINTENDENT
          ___________________________________

       On Appeal From the United States District Court
          For the Western District of Pennsylvania
                 (D.C. Civ. No. 02-cv-00728)
         District Judge: Honorable Arthur J. Schwab
               __________________________

                   Argued October 26, 2004

   Before: SCIRICA, Chief Judge, FISHER and BECKER,
                     Circuit Judges

                  (Filed December 29, 2004)

JEREMY A. MERCER, ESQUIRE (ARGUED)
Kenneth M. Argentieri, Esquire
Melissa L. Irr, Esquire
Maureen E. Geary, Esquire
Kirkpatrick & Lockhart LLP
535 Smithfield Street
Pittsburgh, Pennsylvania 15222
       Attorneys for Appellant

MICHAEL HANDLER, ESQUIRE (ARGUED)
Assistant District Attorney for Appeals and Legal Research
Office of the District Attorney of Indiana County
3rd Floor, Indiana County Courthouse
Indiana, Pennsylvania 15701
       Attorney for Appellee
                      _________________

                   OPINION OF THE COURT
                      _________________

BECKER, Circuit Judge.

         Curtis Long appeals from an order of the District Court
which denied his petition for a writ of habeas corpus after
concluding that, even though the Commonwealth failed to raise the
statute of limitations defense, 28 U.S.C. § 2244(d)(1), in the
answer to the petition, it had not waived the defense because it
advanced it after the Magistrate Judge sua sponte flagged it in her
report. This appeal requires us to decide whether this holding is
consistent with Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002),
cert. denied, 540 U.S. 826 (2003)—a case in which we stressed the
importance of early interposition of the defense— at least where the
petitioner, as here, is not prejudiced by the delay. We hold that it
is, that the Commonwealth did not waive the statute of limitations
defense, and that the petition was untimely. We will therefore
affirm the order of the District Court denying the petition on that
ground.

                 I. Facts and Procedural History

        Long was found guilty by a jury in Indiana County,
Pennsylvania, of involuntary manslaughter in violation of 18 Pa.
Cons. Stat. Ann. § 2504(a) (West 1998), complicity to commit
second degree murder in violation of 18 Pa. Cons. Stat. Ann.
§ 2502(b), § 306(a)-(c) (West 1998), and complicity to commit
robbery in violation of 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(i)
(West 2000), § 306(a)-(c) in July 1993. His post-trial motions were
denied and he was sentenced to life in prison. The Pennsylvania
Superior Court affirmed the judgment, and the state supreme court
denied allowance of appeal on March 6, 1995. Long did not
petition for certiorari to the United States Supreme Court.
        In August 1995 new counsel was appointed under the
Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann.
§ 9542 et seq. (West 1998), and Long, through that counsel, filed
his first state post-conviction petition on December 27, 1996. It
was denied, the Superior Court affirmed, and the state supreme
court denied allocatur on August 12, 1998. Long filed a state

                                 2
petition for writ of habeas corpus on July 25, 2001. It was denied
as an untimely state post-conviction petition, 42 Pa. Cons. Stat.
Ann. § 9545(b), and as raising previously litigated claims, 42 Pa.
Cons. Stat. Ann. § 9544, on November 29, 2001. Long did not
appeal.
        Long then filed, pro se, an in forma pauperis petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 in United
States District Court for the Western District of Pennsylvania,
raising thirteen grounds for relief. As the merits of Long’s claims
are not at issue here we will not provide an exhaustive list. As a
general matter, Long alleged that: (1) he was deprived of a fair trial
in that his motion for severance was denied and in that witnesses
were not sequestered; (2) his statement to police was admitted in
violation of Miranda v. Arizona, 384 U.S. 436 (1966); (3) he
received ineffective assistance of counsel in presenting a coercion
defense; (4) the prosecutor committed misconduct in the handling
of a key witness; and (5) the police violated his constitutional rights
in stopping and arresting him. The assigned Magistrate Judge
granted Long in forma pauperis status and ordered the
Commonwealth to respond to the habeas petition. The Magistrate
Judge’s order stated that the Commonwealth shall address “both
the merits of the petition and exhaustion of state court remedies as
required by 28 U.S.C. §§ 2254(b) and (c). Picard v. Connor, 404
U.S. 270 (1971); Rose v. Lundy, 455 U.S. 509 (1982); United
States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977);
Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). The answer shall
comply with the requirements of Rule 5 of the Rules Governing
Section 2254 Cases in the United States District Courts.” The
order, however, made no mention of the habeas corpus statute of
limitations, 28 U.S.C. § 2244(d)(1). 1
        On June 11, 2002, the Commonwealth answered the habeas
petition, provided a complete state procedural history of Long’s
claims, and asserted, citing appropriate authority, that any habeas
claim that could fairly be said to have been raised at all levels
either on direct appeal or in the first state post-conviction petition
was exhausted. Any habeas claim that was raised for the first time
in the state habeas/untimely second post-conviction petition or was
omitted on appeal to the Superior Court during the original post-



         1 Habeas Rule 5 provided in pertinent part only that the answer
shall state “whether the petitioner has exhausted his state remedies . . . .”

                                     3
conviction proceedings was, of course, barred due to procedural
default, and cause and prejudice could not be shown. The
Commonwealth then addressed on the merits the severance claim
and an ineffective assistance of counsel claim.2 Although the
Commonwealth asserted that the Miranda claim was barred due to
a procedural default, it addressed this claim on the merits.
       Long filed a reply, in which he urged the court to address his
claims notwithstanding his state procedural defaults. Thereafter,
there was no activity on the docket until January 2003, when
Long’s case was reassigned to a new United States District Judge
following the original judge’s retirement. In May 2003, the
Magistrate Judge filed a Report and Recommendation, in which
she recommended that the habeas petition be denied as untimely
under 28 U.S.C. § 2244(d)(1), which is set forth in the margin, and
which provides that a petition be filed within one year of the date
on which a judgment becomes final. 3


       2 Thus the Commonwealth complied with the Magistrate
Judge’s order that it should address both exhaustion and the merits.

       3 The habeas corpus statute of limitations provides as follows:
       (d)(1) A 1-year period of limitation shall apply to an
       application for a writ of habeas corpus by a person in
       custody pursuant to the judgment of a State court. The
       limitation period shall run from the latest of—
               (A) the date on which the judgment
               became final by the conclusion of direct
               review or the expiration of the time for
               seeking such review;
               (B) the date on which the impediment to
               filing an application created by State
               action in violation of the Constitution or
               laws of the United States is removed, if
               the applicant was prevented from filing
               by such State action;
               (C) the date on which the constitutional
               right asserted was initially recognized by
               the Supreme Court, if the right has been
               newly recognized by the Supreme Court
               and made retroactively applicable to
               cases on collateral review; or
               (D) the date on which the factual
               predicate of the claim or claims presented
               could have been discovered through the

                                  4
        In deciding the timeliness issue under 28 U.S.C. § 2244(d),
the Magistrate Judge reasoned that Long’s conviction became final
90 days after March 6, 1995, when the Pennsylvania Supreme
Court denied allocatur, see 28 U.S.C. § 2244(d)(1)(A); Swartz v.
Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (judgment becomes final
after time for seeking discretionary review expires when
discretionary review is not sought); Kapral v. United States, 166
F.3d 565, 575 (3d Cir. 1999) (if defendant does not file certiorari
petition, judgment of conviction becomes final when time for
seeking certiorari review expires), and thus before the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) went
into effect on April 24, 1996. Pursuant to Burns v. Morton, 134
F.3d 109, 111 (3d Cir. 1998), Long had until April 23, 1997, to file
his habeas petition.4
        Section 2244(d)(2) provides, however, that “[t]he time
during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Thus,
the statute was tolled when Long filed his first state post-conviction
petition on December 27, 1996, started to run again on August 12,
1998, when the state supreme court denied allowance of appeal of
that petition, see Stokes v. District Attorney of County of
Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001) (time during which
state prisoner may file certiorari petition from denial of state post-
conviction petition does not toll statute of limitations), and expired
well before he filed his federal habeas petition on April 16, 2002.5


              exercise of due diligence.
28 U.S.C. § 2244(d) (West Supp. 2004).

       4 Burns held that, where a judgment became final on or before
April 24, 1996, the effective date of AEDPA, the petitioner had until
April 23, 1997, to file a federal habeas corpus petition challenging his
conviction. As noted above, Long’s judgment became final prior to April
24, 1996.

        5 The Magistrate Judge concluded that Long’s post-conviction
petition was pending as of August 10, 1995 when new counsel was
appointed to represent him, and thus the statute of limitations did not
begin to run on April 24, 1996 when AEDPA took effect. Long does not
appear to have filed pro se a petition for post-conviction relief prior to
new counsel being appointed, or even after new counsel was appointed,

                                    5
The state habeas petition had no effect on tolling, because an
untimely state post-conviction petition is not “properly filed” for
purposes of tolling, Merritt v. Blaine, 326 F.3d 157, 165-66 (3d
Cir.), cert. denied, 124 S. Ct. 317 (2003), and, in any event, the
limitations period had already run when it was filed. In addition,
no other statutory exceptions applied, and there was no basis under
our decisions in Miller v. New Jersey State Dep’t of Corr., 145
F.3d 616, 618-19 (3d Cir. 1998), Fahy v. Horn, 240 F.3d 239, 244-
45 (3d Cir. 2001), or Johnson v. Hendricks, 314 F.3d 159, 162-63
(3d Cir. 2002), cert. denied, 538 U.S. 1022 (2003), for equitable
tolling.
        The Magistrate Judge then addressed the issue we are
required to decide in this appeal.           She noted that the
Commonwealth had not raised the statute of limitations as an
affirmative defense, which presented the question whether the
defense was waived under our decision in Robinson v. Johnson,
313 F.3d 128. Relying on Acosta v. Artuz, 221 F.3d 117, 123 (2d
Cir. 2000), she concluded that a federal magistrate judge could
raise the habeas corpus statute of limitations issue sua sponte
because it implicated values “beyond the concerns of the parties.”
She cited a footnote in our decision in Banks v. Horn, 271 F.3d
527, 533 n.4 (3d Cir. 2001), rev’d on other grounds, 536 U.S. 266
(2002), which predates Robinson, wherein we noted, in reliance
upon Acosta, among other cases, that a court of appeals could
review the AEDPA statute of limitations issue sua sponte even if
it were not properly before the court. She further observed that we
stressed in Robinson that there is more than one reason why
affirmative defenses should be raised as early as is practicable, and
one of them is to promote judicial economy, to which she clearly
believed she was contributing.
        Long, who was not represented by counsel in the District
Court, timely filed objections, in which he argued that the court


and counsel did not file a petition on Long’s behalf until December 27,
1996. It thus seems that, because a petition was not pending, the statute
began to run on April 24, 1996 when AEDPA went into effect, ran for
about eight months, and then was tolled on December 27, 1996.
Whether Long had four months left in which to file his federal habeas
petition when the statute began to run again on August 12, 1998, or a full
twelve months, his filing of his federal habeas petition on April 16, 2002
was late, and Long has conceded that his habeas petition was untimely
filed.

                                    6
should apply the miscarriage of justice exception to the AEDPA
statute of limitations; in his case the putative miscarriage of justice
was a fundamentally unfair trial. Importantly for our purposes
here, the Commonwealth filed an answer to the objections a week
later (and within three weeks of the filing of the Report and
Recommendation) in which it endorsed the Magistrate Judge’s
view that the habeas petition was untimely, stating: “[The
Magistrate Judge] determined that the Petition was barred by the
one-year statute of limitation provided under 28 U.S.C. § 2244(d).
Respondents submit that [the Magistrate Judge] was correct for the
reasons set forth in the following paragraphs.” Respondent’s
Answer to Petitioner’s Objections to the M agistrate Judge’s Report
and Recommendation, at ¶ 2. The Commonwealth also expressed
its agreement with the Magistrate Judge’s analysis as it related to
calculating when the habeas petition should have been filed, id. at
¶¶ 3-6, and then asked the District Court in the final unnumbered
paragraph of this answer to dismiss the petition as untimely,
stating: “Wherefore, Respondents respectfully request your
Honorable Court to overrule Petitioner’s Objections and to adopt
[the Magistrate Judge’s] Report and Recommendation.”
        The District Court did just that. In a Memorandum Order
entered on June 4, 2003, the District Court denied the habeas
petition as untimely and adopted the Report and Recommendation
as the Opinion of the Court. The court stated:
        The magistrate judge’s report and recommendation,
        filed May 12, 2003, recommended that the Petition
        be denied as untimely and that a certificate of
        appealability be denied.          Petitioner has filed
        objections to the report and recommendation in
        which he asserts that he has demonstrated cause for
        his procedural default and prejudice therefrom . . . .
        The magistrate judge recommended that the petition
        be dismissed because it was not timely filed within
        the one-year limitations period provided for under
        the Antiterrorism and Effective Death Penalty Act of
        1996 (AEDPA), 28 U.S.C. § 2244(d).                 The
        magistrate judge did not find any procedural default
        so the “cause and prejudice” standard does not apply
        to this case . . . . In her report and recommendation
        the magistrate judge discussed the doctrine of
        equitable tolling which can toll the running of the
        AEDPA statute of limitations, and properly

                                  7
        determined that petitioner has not shown a basis for
        tolling. After de novo review of the pleadings and
        documents in the case, together with the objections
        to [the] report and recommendation . . . IT IS
        HEREBY ORDERED that the Petition be denied as
        untimely.
Memorandum Order of the District Court, at 1-3 (citation omitted).
        Long appealed, and we appointed counsel and granted a
certificate of appealability as follows:
        [W]hether the respondent to a habeas petition must
        raise the statute of limitations defense, 28 U.S.C.
        § 2244(d), in the answer to the habeas petition or be
        deemed to have waived it. Robinson v. Johnson, 313
        F.3d 128 (3d Cir. 2002). Put another way, may the
        Magistrate Judge in a Report and Recommendation
        recommend dismissal on the basis of untimeliness
        when the respondent has failed to raise the defense
        in its answer, id., and may the state thereafter raise
        the statute of limitations defense in a supplemental
        pleading to avoid being deemed to have waived the
        defense, [and] whether the respondent here may be
        deemed to have raised the statute of limitations
        defense in its Answer to Petitioner’s Objections to
        the Magistrate Judge’s Report and Recommendation.
Order of Court (Feb. 20, 2004).6
        We have jurisdiction pursuant to 28 U.S.C. § 1291. The
District Court’s analysis of the statute of limitations issue, which
in Long’s case does not involve disputed facts, is subject to plenary
review, see Swartz v. Meyers, 204 F.3d at 419, except to the extent
that the District Court impliedly permitted the Commonwealth to
amend its answer. That decision is reviewed for an abuse of
discretion. See Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing
of Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981).

                II. The Amendment to the Answer

                     A. Robinson v. Johnson




       6 We thank court-appointed counsel for his able oral
presentation and briefs, which were of great assistance.

                                 8
        Our discussion must necessarily begin with Robinson v.
Johnson, supra. Robinson, whose first federal habeas petition was
dismissed for failure to exhaust state remedies, filed a second
federal habeas petition, which was referred to a magistrate judge
who ordered a responsive pleading. The Commonwealth filed a
letter response, arguing that the petition should be transferred to the
court of appeals for authorization because it was a successive
petition. 313 F.3d at 132. The magistrate judge recommended
denying the petition on that basis, and the district court accepted
the magistrate judge's recommendation.
        Robinson appealed, and we ordered the Commonwealth to
show cause why the order dismissing the petition should not be
summarily reversed in light of Christy v. Horn, 115 F.3d 201, 208
(3d Cir. 1997) (where federal habeas petition has been dismissed
without prejudice for failure to exhaust state remedies, petitioner
need not apply to court of appeals for authorization to file a second
habeas action.) The Commonwealth filed a letter brief, in which
it conceded that Robinson’s second federal habeas petition was not
successive. The Commonwealth did not present any alternative
legal grounds for affirming the district court. We then summarily
reversed and remanded.
        On remand, Robinson filed a motion to strike his original
petition and for permission to file an amended petition. The
Commonwealth then filed a pleading, asserting for the first time
that Robinson’s second federal habeas petition was time-barred by
AEDPA’s statute of limitations, 28 U.S.C. § 2244(d)(1).
Robinson, in rebuttal, argued that the Commonwealth's statute of
limitations defense was untimely. The magistrate judge endorsed
the Commonwealth’s argument, and the district court adopted the
magistrate judge’s Report and Recommendation over Robinson's
renewed objection that the Commonwealth had waived its
limitations defense.
        On appeal, we held first that, because the statute of
limitations is not jurisdictional in nature, see Miller v. New Jersey
State Dep’t of Corr., 145 F.3d at 617-18, the state may waive the
defense. Robinson, 313 F.3d at 134. Because the Federal Rules of
Civil Procedure are applicable to habeas petitions to the extent that
they are not inconsistent with the habeas rules, we then considered
whether Federal Rule of Civil Procedure 8(c) requires that a
defendant plead an affirmative defense, such as a statute of
limitations, in its answer. Robinson, 313 F.3d at 134. We
explained: “Parties are generally required to assert affirmative

                                  9
defenses early in litigation, so they may be ruled upon, prejudice
may be avoided, and judicial resources may be conserved. Habeas
proceedings are no exception.” Id. We further emphasized: “The
purpose of requiring the defendant to plead available affirmative
defenses in his answer 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. Id.
at 134-35 (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,
402 U.S. 313, 350 (1971)).
        Nevertheless, we expressly held that “a limitations defense
does not necessarily have to be raised in the answer.” Id. at 135.
We surveyed several cases involving Federal Rule of Civil
Procedure 15(a) and amendments to answers. In Venters v. City of
Delphi, 123 F.3d 956, 967-69 (7th Cir. 1997), for example, the
Seventh Circuit held that the defendant had waived the statute of
limitations defense, and that the district court had abused its
discretion in permitting an amendment to the answer. The court
explained that, if the relevance of a statute of limitations defense
becomes apparent only after discovery, the defendant should
promptly seek leave of court to amend the answer and a district
court should grant the motion, but that the district court should not
countenance an eleventh-hour invocation of the defense, and that
raising the statute of limitations for the first time in a reply
memorandum in support of a motion for summary judgment was an
impermissible eleventh-hour invocation.           The parties had
completed an exhaustive discovery process, trial was a month
away, and the plaintiff had been denied the opportunity to file a
surreply.
        After discussing Venters and other cases, the panel
explained that all of the cases surveyed reflected “attempts by the
courts to keep the consideration of affirmative defenses consistent
with at least the purpose, if not necessarily the language, of Rule
8(c).” Robinson, 313 F.3d at 137. Thus, although an affirmative
defense need not be raised in the answer, it must be raised “as early
as practicable” thereafter. Id. We reasoned that affirmative
defenses must be raised as early as is practicable, not only to avoid
prejudice to a plaintiff or petitioner, but also to promote judicial
economy. We wrote: “If a party has a successful affirmative
defense, raising that defense as early as possible, and permitting a
court to rule on it, may terminate the proceedings at that point
without wasting precious legal and judicial resources.” Id. We
then stated that affirmative defenses under AEDPA should be

                                 10
treated the same as affirmative defenses in other contexts, and, “if
not pleaded in the answer, they must be raised at the earliest
practicable moment thereafter.” Id.
        Applying this rule, we went on to hold that the
Commonwealth’s assertion of its affirmative defense of the statute
of limitations was not untimely.             We opined that the
Commonwealth’s letter response to Robinson's habeas petition
seeking transfer to the court of appeals was equivalent to a motion
to dismiss for lack of subject matter jurisdiction. A motion to
dismiss for lack of subject matter jurisdiction is a favored defense,
id. at 139 (citing Fed. R. Civ. P. 12(h)), and we opined that: (1) the
Commonwealth did not have to include the statute of limitations
defense in its original motion to transfer, and was not required to
raise the defense when the case was on appeal for the first time, id.
at 139-40; and (2) the normal rules regarding the waiver of
defenses under Fed. R. Civ. P. 8(c) did not apply until the threshold
issue of successiveness was resolved. We then stated that the
defense was not waived because the Commonwealth raised it in its
first pleading on remand. Id. at 141.
        This reference to the “first” pleading on remand was
descriptive of the procedural circumstances of Robinson’s case,
i.e., a construction of our holding that the AEDPA statute of
limitations defense should, if not pleaded in the answer, be raised
at the earliest practicable, or possible, or feasible, moment
thereafter. Robinson, 313 F.3d at 137. What the earliest
practicable or possible or feasible moment after an answer has been
filed might be in another case where the procedural circumstances
were different we necessarily left open.

  B. Federal Rule of Civil Procedure 15(a): Prejudice and the
               Role of Delay and Inadvertence

        We turn to Long’s arguments on appeal. Long concedes
that Robinson does not impose an absolute requirement that the
AEDPA statute of limitations defense be asserted in the answer.
However, he argues that he suffered undue prejudice as a result of
the delay in raising the defense, and that the Commonwealth should
have a compelling reason for failing to assert the defense in the
answer. Long argues that Robinson was not meant to grant extra
time to those litigants who fail to assert the defense in the answer
as a result of inadvertence.
        Long relies on a decision from the Second Circuit, Strauss

                                 11
v. Douglas Aircraft Co., 404 F.2d 1152, 1156-57 (2d Cir. 1968),
which we cited in Robinson, 313 F.3d at 136. In Strauss, the
district court granted the defendant leave to amend the answer to
plead the statute of limitations defense. On appeal the court
reversed, holding that, since the complaint had apprised the
defendant of an implied warranty claim, and since the defendant
from prior experience should have been aware of the choice of
forum issue inherent in the case, the limitations defense should
have been raised in the original answer, or at a minimum, within a
reasonable time thereafter. The court found that the defendant’s
conduct in raising the defense four years late was inexcusable, and
that the plaintiff was substantially prejudiced in that, had the statute
been timely pleaded, he might have been able to bring another
action in a jurisdiction where his suit would not have been time-
barred.
        We do not doubt that Strauss correctly states the law, but it
provides only general support for Long’s argument. First, it does
not hold that inadvertence on the part of a defendant establishes
undue prejudice sufficient to deny an amendment under Rule 15(a).
Second, the length of the delay in Strauss was extremely long.
Third, and perhaps most important of all, the plaintiff suffered
actual prejudice in that his action might not have been time-barred
in another jurisdiction had he known about the statute of limitations
defense sooner. With respect to the latter basis for Strauss’s
holding, we note that Long’s habeas petition unquestionably was
untimely under 28 U.S.C. § 2244(d). Thus he suffered no prejudice
of the type discussed in Strauss. The frustrated expectation of not
having an untimely habeas petition heard on the merits does not
establish prejudice sufficient to defeat an amendment to an answer.
        The delay here presents a closer question. As Long points
out, the Commonwealth took 14 months to assert the defense.
Long filed his habeas petition in April 2002, and the
Commonwealth did not raise the statute of limitations defense until
June 2003. The passage of time factors into the analysis of whether
a plaintiff has suffered prejudice by a delay in amending an answer
to assert an affirmative defense. See Robinson, 313 F.3d at 136
(citing Venters, 123 F.3d at 968-69; Strauss, 404 F.2d at 1155-56;
Hayden v. Ford Motor Co., 497 F.2d 1292, 1295 (6th Cir. 1974);
and Int’l Bhd. of Boilermakers, Local 1603 v. Transue & Williams
Corp., 879 F.2d 1388, 1396 n.3 (6th Cir. 1989)). We conclude,
however, that the Commonwealth cannot fairly be said to have
unduly delayed in raising the AEDPA statute of limitations

                                  12
defense.
        The Commonwealth answered the complaint one month
after being ordered to do so, and raised the statute of limitations
defense one week after Long filed his objections and three weeks
after the Magistrate Judge filed her Report and Recommendation.
The inactivity on the docket from July 2002 until January 2003
when a new District Judge was assigned, and again from January
2003 until May 2003 when the Magistrate Judge filed her Report
and Recommendation, is not attributable to the Commonwealth
under the circumstances; indeed, in a case referred to a magistrate
judge, once a habeas petition is filed and answered, it seems
reasonable for the parties to wait for a Report and
Recommendation to be filed before engaging in further pleading.
With respect to the question of inadvertence, the Commonwealth
concedes in its brief on appeal that it made a mistake in not raising
the defense in the answer. It argues, however, that it in effect made
a timely and proper amendment of its answer in accordance with
Federal Rule of Procedure 15(a), and that the District Court, in
effect, allowed the amendment in its discretion. W e agree.
        The Commonwealth relies on Block v. First Blood
Associates, 988 F.2d 344 (2d Cir. 1993), also from the Second
Circuit, where the defendants first raised a statute of limitations
defense in a motion for summary judgment four years after the
complaint was filed. The district court treated the motion for
summary judgment as a motion to amend the pleadings and
dismissed the action as time-barred. On appeal the Second Circuit
affirmed, holding that there was no showing of prejudice to the
plaintiff and no bad faith on the part of the defendant. The court
noted in particular the complete absence of bad faith and the fact
that the suit “was untimely on the day it was commenced.” Id. at
351. The court rejected the plaintiff’s argument that his frustrated
expectations constituted undue prejudice sufficient to overcome the
Rule 15(a) right to amend a pleading. Id.
        Block elaborates a standard for judging prejudice that is
compatible with Robinson, 313 F.3d at 136-37, and Rule 15(a)
jurisprudence in this Circuit. The Second Circuit reasoned that,
generally, the longer the unexplained delay, the less the plaintiff
must show in terms of prejudice. 988 F.2d at 350 (citing Advocat
v. Nexus Indus., Inc., 497 F. Supp. 328, 331 (D. Del. 1980)). In
determining what constitutes prejudice, the Second Circuit
considers “whether the assertion of the new claim would: (i)
require the opponent to expend significant additional resources to

                                 13
conduct discovery and prepare for trial; (ii) significantly delay the
resolution of the dispute; or (iii) prevent the plaintiff from bringing
a timely action in another jurisdiction.” Id. (internal quotations and
citations omitted). The court also emphasized the absence of bad
faith. We endorse the Second Circuit approach. None of these
considerations are present in Long’s case. He was not forced to
undertake discovery or additional discovery, and he could not have
brought his habeas action in another jurisdiction. Moreover, the
Commonwealth’s amendment did not delay resolution of the case
and was not the product of bad faith.
        Rule 15(a) requires that leave to amend the pleadings be
granted freely “when justice so requires.” Fed. R. Civ. Pro. 15(a).
We have held that motions to amend pleadings should be liberally
granted. See, e.g., Adams v. Gould Inc., 739 F.2d 858, 867-68 (3d
Cir. 1984) (“[U]nder the liberal pleading philosophy of the federal
rules as incorporated in Rule 15(a), an amendment should be
allowed whenever there has not been undue delay, bad faith on the
part of the [movant], or prejudice to the [nonmovant] as a result of
the delay.”). In Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173
(3d Cir. 1994), we stated: “This Court has often held that, absent
undue or substantial prejudice, an amendment should be allowed
under Rule 15(a) unless ‘denial [can] be grounded in bad faith or
dilatory motive, truly undue or unexplained delay, repeated failure
to cure deficiency by amendments previously allowed or futility of
amendment.’” Id. at 1196 (quoting Bechtel v. Robinson, 886 F.2d
644, 652-53 (3d Cir. 1989) (emphasis in original).            The plain
terms of Rule 15(a) do not discriminate on the basis of type of
pleading. The liberal right to amend extends to an answer to the
complaint. Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of
Virgin Islands, Inc. V. Government of the Virgin Islands, 663 F.2d
at 425. In Heyl, the plaintiff filed a breach of contract action and
the government, in an amended answer, pleaded one specific type
of illegality as an affirmative defense. The government’s pretrial
statement contained an assertion of the same specific illegality
defense. In its opening statement at trial, however, the government
asserted three additional specific illegality defenses. Judgment was
entered in its favor. On appeal the plaintiff argued that the
government had waived the three additional illegality defenses, and
that the district court improperly treated the government’s opening
statement at trial as an implied amendment to the answer. We
disagreed, holding first that, although “procedure[s] for obtaining
leave to amend pleadings set forth in Rule 8 of the Fed.R.Civ.P.

                                  14
should generally be heeded, . . . rigid adherence to formalities and
technicalities must give way before the policies underlying Rule
15.” Id. at 426. Moreover, we did not believe that the government
had to supply a compelling reason for its delay in asserting the
three additional defenses in view of the absence of prejudice to the
plaintiff. Id. at 426-27.
        We believe that Heyl is instructive here for its treatment of
the question of delay as it relates to the larger issue of prejudice,
and for its rejection of the argument that a respondent or defendant
must supply a compelling reason for the delay even if there is no
prejudice. Such a rule, if adopted, would certainly run counter to
the well-established rule that amendments should be liberally
allowed. Heyl also is instructive for what it teaches about
flexibility and the formalities of Rule 15(a), both with respect to
how an amendment is advanced by a respondent or defendant, and
with respect to how it is given effect by a court. Consistent with
Heyl, we agree that, although the Commonwealth did not rigidly
adhere to the formalities of seeking leave to amend, it in effect
made a timely and proper amendment of its answer. In addition,
the District Court, although it did not expressly state that it was
allowing the answer to be amended, in effect, allowed the
amendment in its discretion by disposing of the petition on the
basis of untimeliness under 28 U.S.C. § 2244(d).

                           C. Summary

        Robinson, 313 F.3d at 136-37, the Rule 15(a) cases
discussed therein, and our Rule 15(a) jurisprudence, see, e.g., Heyl,
663 F.2d at 426-27, 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. See also Adams, 739 F.3d at 867-68; Lundy, 34 F.3d at 1196.
Delay is related to prejudice but was not a problem here, and
inadvertence does not equal bad faith. We hold that the
Commonwealth timely raised the habeas corpus statute of
limitations defense, 28 U.S.C. § 2244(d), by expressly endorsing
the Magistrate Judge’s analysis of the timeliness issue, and that
Long was not prejudiced thereby. The District Court impliedly
approved of the Commonwealth’s “amendment” to the answer by

                                 15
denying the petition as untimely, and did not abuse its discretion in
doing so.

   III. The Sua Sponte Flagging of the Statute of Limitations
                 Issue by the Magistrate Judge

        The question that remains is the effect of the Magistrate
Judge’s flagging of the statute of limitations defense once an
answer had been filed, and of the Commonwealth’s response
thereto. Our answer to that question was foreshadowed by Banks
v. Horn, 271 F.3d 527, a death penalty case which touched
preliminarily on the AEDPA statute of limitations before reaching
the merits of the petitioner’s habeas claims. In the footnote cited
by the Magistrate Judge, we expressed the view that a court of
appeals could address the AEDPA statute of limitations defense
sua sponte even if the habeas respondent had waived the issue on
appeal. We wrote:
        Even if not raised, we believe we could consider this
        issue sua sponte. “While ordinarily we do not take
        note of errors not called to the attention of the Court
        of Appeals nor properly raised here, that rule is not
        without exception. The Court has ‘the power to
        notice a “plain error” though it is not assigned or
        specified,’ . . . ‘In exceptional circumstances,
        especially in criminal cases, appellate courts, in the
        public interest, may, of their own motion, notice
        errors to which no exception has been taken, if the
        errors are obvious, or if they otherwise seriously
        affect the fairness, integrity or public reputation of
        judicial proceedings.’” Silber [v. United States], 370
        U.S. [717,] 717-18, 82 S. Ct. 1287, 8 L. Ed.2d 798
        [(1962)] (internal citations omitted). See also Acosta
        v. Artuz, 221 F.3d 117 (2d Cir. 2000); Kiser v.
        Johnson, 163 F.3d 326 (5th Cir. 1999).
Id. at 533 n.4.
        The Commonwealth had argued unsuccessfully in the
district court that Bank’s federal habeas petition was untimely. Id.
at 532. On appeal Banks argued that the timeliness of his habeas
petition was not before us because the Commonwealth had not
challenged the district court’s ruling in its counterstatement of
issues, and had failed to discuss the issue in its brief except for a
conclusory reference to its position in a footnote. We disagreed,

                                 16
believing that we should examine the issue “in light of the District
Court’s careful analysis of this issue and its importance, and
because the government did make reference to the issue albeit in a
footnote.” Id. at 533. The footnote quoted above followed. We
then went on to hold that the District Court appropriately applied
equitable principles to toll the one-year AEDPA statute of
limitations requirement. Id. at 534.
         Thus we observed prior to Robinson that the AEDPA statute
of limitations is an important issue, the raising of which may not
necessarily be left completely to the state. The Banks footnote
refers to public interest policies underlying the AEDPA statute of
limitations, in terms and by its reliance on Acosta v. Artuz, 221
F.3d 117, a decision also cited by the Magistrate Judge in this case.
In Artuz, where a responsive pleading had not yet been filed, the
Second Circuit held that, even though the statute of limitations is
an affirmative defense, a district court on its own motion may raise
the time bar, because AEDPA’s statute of limitations “implicates
values beyond the concerns of the parties” having to do with the
finality of convictions. 221 F.2d at 123. The court explained:
         The AEDPA statute of limitation promotes judicial
         efficiency and conservation of judicial resources,
         safeguards the accuracy of state court judgments by
         requiring resolution of constitutional questions while
         the record is fresh, and lends finality to state court
         judgments within a reasonable time. Like the other
         procedural bars to habeas review of state court
         judgments, the statute of limitation implicates the
         interests of both the federal and state courts, as well
         as the interests of society, and therefore it is not
         inappropriate for the court, on its own motion, to
         invoke the doctrine.
Id. (internal quotations and citations omitted). We agree. While
civil in nature, habeas corpus cases are different from ordinary civil
cases where only the interests of the parties are involved.
         In Artuz, the Second Circuit reasoned that the authority of
a district judge to raise procedural defenses sua sponte is consistent
with Rule 4 of the rules governing habeas corpus, which gives the
district court the power to review and dismiss habeas petitions prior
to any responsive pleading by the state. Id. Artuz correctly states
the law, see also Hill v. Braxton, 277 F.3d 701, 706 (4th Cir.
2002); Herbst v. Cook, 260 F.3d 1039, 1042 & n.3 (9th Cir. 2001);
Kiser, 163 F.3d 326, 328-29 (5th Cir. 1999), and is instructive, but

                                 17
it is not necessarily dispositive here because a responsive pleading
was filed by the Commonwealth which omitted the statute of
limitations defense. The issue in Long’s case is whether the court
can alert the respondent to the defense, and whether the answer can
be amended consistent with Rule 15(a) and Robinson, 313 F.3d at
136-37.
         We think it plain that a federal magistrate judge may raise
the AEDPA statute of limitations issue in a Report and
Recommendation after an answer has been filed. In Granberry v.
Greer, 481 U.S. 129, 134-35 (1987), the Supreme Court held that
a court has the discretion, in the interests of comity and federalism,
to decide whether justice would be better served by insisting that
a claim be fully exhausted or by rejecting it if it is plainly lacking
in merit. It is now widely recognized that judges have discretion
to raise procedural issues in habeas cases. See, e.g., Sweger v.
Chesney, 294 F.3d 506, 520-21 (3d Cir. 2002) (whether claim is
barred due to procedural default may be considered sua sponte),
cert. denied, 538 U.S. 1002 (2003); Smith v. Horn, 120 F.3d 400,
407 (3d Cir. 1997) (discretion to consider exhaustion question
afforded by Granberry). For one thing, judicial economy is
promoted when a magistrate judge identifies the issue early in the
course of a case. The limitations issue here was flagged by the
Magistrate Judge as part of the preliminary consideration of the
matter. See 28 U.S.C. § 636(b)(1).
         Most importantly, however, raising procedural habeas issues
furthers the interests of comity and federalism. See Sweger, 294
F.3d at 521; Artuz, 221 F.2d at 123. We have stated that, because
these concerns are so important, it is not exclusively up to the
parties to decide whether habeas procedural issues should be raised
or waived. See, e.g., Szuchon v. Lehman, 273 F.3d 299, 321 n.13
(3d Cir. 2001). 7 Because we see no difference between the habeas
corpus statute of limitations and other habeas procedural issues,8



       7 For this reason, the non-federal habeas cases cited by Long
holding that the statute of limitations may not be raised sua sponte are
inapposite.

        8 Habeas Rule 5, for example, has been amended, effective
December 1, 2004, to provide that the answer shall 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,” and thus
treats the AEDPA statute of limitations like other procedural habeas

                                   18
we hold that our decision in Robinson, 313 F.3d 128, does not
prevent a magistrate judge from raising the AEDPA statute of
limitations defense sua sponte even after an answer has been filed.
        There are decisions contra. The Sixth Circuit has held in a
2-1 decision that the state waived the statute of limitations defense
by failing to raise it in the answer. Scott v. Collins, 286 F.3d 923
(6th Cir. 2002). The court reasoned that a district court’s power to
sua sponte raise the AEDPA statute of limitations is limited to
habeas Rule 4, and that habeas Rule 4 applies only before a
responsive pleading is filed. Therefore, the court’s actions
amounted to an impermissible curing of the respondent’s waiver.
Id. at 929-30. The Ninth Circuit recently joined the Sixth Circuit
in Nardi v. Stewart, 354 F.3d 1134 (9th Cir. 2004). The court
agreed that a district court’s authority to raise the defense sua
sponte evaporates once a responsive pleading is filed. Id. at 1141-
42.
        The Scott and Nardi decisions are at odds with Robinson
and our Rule 15(a) jurisprudence, which do not require that
affirmative defenses be pled in the first responsive pleading.
Moreover, we believe the dissenting opinion in Scott, 286 F.3d at
931-34 (Stafford, J., dissenting), places the necessary emphasis on
the policies underlying AEDPA, and a court’s authority, in its
discretion, to raise procedural habeas issues. Noting that the
respondent's failure to raise the defense was inadvertent, and that
the petitioner was given an opportunity to respond to the limitations
issue, the Scott dissent emphasizes, as we do here today, that:
“Congress intended AEDPA to further the principles of comity,
finality, and federalism.” 286 F.3d at 932 (citing Williams v.
Taylor, 529 U.S. 420, 436 (2000)). “Consistent with such purpose,
Congress created a one-year limitations period that was meant to
streamline the habeas review process and to lend finality to state
court convictions.” Id. at 933 (citing Duncan v. Walker, 533 U.S.
167, 179 (2001)). In Duncan, the Supreme Court explained: “This
provision reduces the potential for delay on the road to finality by
restricting the time that a prospective federal habeas petitioner has
in which to seek federal habeas review.” 533 U.S. at 179. In our
view, AEDPA’s statute of limitations advances the same concerns
as those advanced by the doctrines of exhaustion and procedural
default, and must be treated the same. Scott, 286 F.3d at 934



issues.

                                 19
(Stafford, J., dissenting). See also Banks, 271 F.3d at 533 n.4.

                         IV. Conclusion

        In sum, we hold that, consistent with Robinson v. Johnson,
313 F.3d 128, and our Rule 15(a) jurisprudence, see, e.g., Heyl,
663 F.2d at 426-27, the Commonwealth timely raised the habeas
corpus statute of limitations defense, 28 U.S.C. § 2244(d), and that
Long was not prejudiced by what amounted to an amendment to
the Commonwealth’s answer. The District Court impliedly granted
leave to amend in a proper exercise of its discretion by denying the
petition as untimely. Having in mind that AEDPA’s statute of
limitations, like other procedural habeas issues, furthers the
principles of comity, finality, and federalism, see Williams, 529
U.S. at 436, we hold further that a federal magistrate judge may,
consistent with Robinson v. Johnson, 313 F.3d 128, raise sua
sponte the AEDPA statute of limitations defense even after an
answer has been filed, see Granberry, 481 U.S. at 134-35. The
order of the District Court denying the habeas petition as untimely
will be affirmed.
