                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2002

Robinson v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 00-1979




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PRECEDENTIAL

       Filed November 18, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1979

ERIC ROBINSON,
       Appellant

v.

PHILIP L. JOHNSON; THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL
OF THE STATE OF PENNSYLVANIA, MIKE FISHER

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 98-cv-05095)
District Judge: The Hon. Herbert J. Hutton

Argued October 29, 2001

Before: SLOVITER, NYGAARD, and AMBRO,
Circuit Judges.

Sur Panel Rehearing Submitted July 19, 2002

Before: SLOVITER, NYGAARD, and AMBRO, Circuit   Judges

(Filed: November 18, 2002)

       Paul Rosenzweig (Argued)
       Washington, DC 20002

        Attorney for Appellant




       David C. Glebe (Argued)
       Office of the District Attorney
       Philadelphia, PA 19102

        Attorney for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge:

INTRODUCTION

When this appeal originally came before this panel of the
court, we decided that state officials (hereafter"the
Commonwealth"), against whom a habeas corpus
proceeding had been filed, can waive the state’s defense of
the statute of limitations that is set forth in the Anti-
Terrorism and Effective Death Penalty Act ("AEDPA"). The
members of the panel were unanimous on that issue. Judge
Nygaard authored the opinion of the court, which was filed
March 11, 2002. The factual background, and the portion
of that earlier opinion reflecting the views of the court on
that issue, are incorporated here as Part I with only such
changes as are required in light of the different posture of
the appeals.

The remainder of the opinion considered the application
of waiver under the facts of this case. Judge Nygaard, in
the portion of the opinion writing for a majority of the
panel, held that the Commonwealth waived its limitations
defense. I dissented on the ground that under the
procedural background in this case, the Commonwealth
had not waived the statute of limitations defense because it
had appropriately asserted it in its first relevant pleading
(after remand from this court) before the District Court.

The Commonwealth filed a Petition for Rehearing en
banc. On April 8, 2002, the court entered an order granting
rehearing en banc and vacating the opinion and judgment
filed March 11, 2002. Thereafter, on May 8, 2002, the court
vacated the April 8 order granting rehearing en banc and
remanded the case to the original three-judge panel for
panel rehearing.

                                2


At the direction of the court, Robinson, the appellant,
then filed his Answer to the Petition for Rehearing, and the
Commonwealth, with the permission of the court, filed its
Reply to Robinson’s Answer.

The opinion of the court follows, Part I taken from Judge
Nygaard’s original opinion as explained above, and Parts II
and III authored by Judge Sloviter sur rehearing.

I.

Appellant, Eric Robinson, was convicted in a bench trial
before the Court of Common Pleas of Philadelphia of first
degree murder, conspiracy, theft by unlawful taking,
robbery, and possession of an instrument of crime. He was
sentenced to life imprisonment for the murder conviction
and a concurrent aggregate sentence of twenty to thirty-five
years imprisonment on the remaining counts.

Robinson filed a direct appeal in the Pennsylvania
Superior Court, which affirmed the judgment. See
Commonwealth v. Robinson, 481 A.2d 1376 (Pa. Super.
1984) (table). The Pennsylvania Supreme Court denied
Robinson’s request for discretionary review. This ended the
direct review of Robinson’s case.

Robinson then filed a pro se petition for collateral relief
under the Pennsylvania Post Conviction Hearing Act
("PCHA"),1 42 Pa. Cons. Stat. Ann. SS 9541 et seq. (1984),
alleging ineffective assistance of counsel. The court
appointed counsel to represent Robinson, and it
subsequently denied his petition for relief. This denial of
collateral relief was affirmed by the Pennsylvania Superior
Court. See Commonwealth v. Robinson, 563 A.2d 194 (Pa.
Super. 1989) (table). Robinson did not petition for allocatur
with the Pennsylvania Supreme Court.

On August 29, 1991, Robinson filed his first federal
habeas petition alleging ineffective assistance of trial
counsel, insufficiency of evidence, and violation of the
_________________________________________________________________

1. The Post Conviction Hearing Act has since been substantially
amended and is now titled the Post Conviction Relief Act ("PCRA"), 42 Pa.
Cons. Stat. Ann. SS 9541 et seq. (2000).

                                3


Fourth Amendment. A Magistrate Judge issued a Report
and Recommendation which concluded that Robinson’s
failure to pursue discretionary review in the Pennsylvania
Supreme Court of the ineffective assistance of counsel
claim constituted a procedural default. The District Court
adopted the Magistrate’s Report and Recommendation,
concluding that the ineffectiveness claim had been
procedurally defaulted. See Order, Robinson v. Vaughn, No.
91-5422 (E.D. Pa. Dec. 17, 1991). Robinson appealed that
decision, and we denied Robinson’s request for issuance of
a certificate of probable cause because of Robinson’s failure
to exhaust his state remedies. See Order, Robinson v.
Vaughn, No. 91-2107 (3d Cir. Apr. 8, 1992). Thus, as to the
ineffectiveness claim, Robinson’s first federal habeas
petition was dismissed so that he could exhaust his
remedies in the Commonwealth.

Robinson returned to the Commonwealth courts and filed
a second petition under the PCRA, again alleging ineffective
assistance of his trial counsel and now also alleging the
ineffectiveness of his appellate counsel. This application
was denied, and Robinson did not appeal.

Robinson filed a third state application for post-
conviction relief. That petition was denied by the Court of
Common Pleas. Robinson then appealed to the
Pennsylvania Superior Court, which affirmed the denial.
See Commonwealth v. Robinson, No. 03093 Phila. 1994,
679 A.2d 257 (Pa. Super. 1996) (table). Robinson petitioned
for, and was denied, allocatur by the Pennsylvania Supreme
Court. See Commonwealth v. Robinson, 683 A.2d 880 (Pa.
1996) (table).

Robinson filed his second federal habeas petition, which
is the one at issue in this appeal, on September 25, 1998,
alleging ineffective assistance of counsel as a ground for
habeas relief. His petition also reasserts as grounds for
habeas relief the insufficiency of the evidence against him
and the allegedly unlawful seizure of evidence in violation of
the Fourth Amendment.

Robinson’s petition was referred to a Magistrate Judge
who ordered a responsive pleading including "specific and
detailed answers and a brief or memorandum of law in

                                4


support thereof " from the Office of the District Attorney of
Philadelphia on November 10, 1998. On January 27, 1999,
the District Attorney filed a letter pleading which argued
that Robinson’s petition should be transferred to the Court
of Appeals for the Third Circuit because it was a successive
petition. The District Attorney contended that the denial of
Robinson’s first federal habeas petition in 1991 precluded
relief because he had not received permission for a
successive petition from this Court as is required by the
Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),
28 U.S.C. SS 2241 et seq. The Magistrate Judge
recommended denying Robinson’s second federal habeas
petition, and on April 26, 1999, the District Court accepted
the Magistrate Judge’s recommendation and denied the
petition.

Robinson appealed that decision, and we ordered the
District Attorney to show cause why the order dismissing
the petition should not be summarily reversed in light of
our decision in Christy v. Horn, 115 F.3d 201, 208 (3d Cir.
1997), where we held that when a federal habeas petition
has been dismissed without prejudice for failure to exhaust
state remedies, a petitioner, after exhausting his state
remedies, need not apply to the court of appeals for
authorization to file a federal habeas action, but may file
his petition in the district court as if it were his first such
filing. On December 23, 1999, the District Attorney filed a
letter brief conceding that Robinson’s second federal habeas
petition indeed was not successive. The District Attorney
did not present any alternative legal grounds for affirming
the District Court’s conclusion. Thus, we accepted the
Commonwealth’s concession and summarily reversed and
remanded.

On remand, Robinson filed a motion to strike his original
petition and for permission to file an amended petition
which the Magistrate Judge granted. The District Attorney
moved for reconsideration of the order permitting Robinson
to amend his petition. Then on March 30, 2000, the District
Attorney asserted that Robinson’s second federal habeas
petition was time-barred by the limitations provision of the
AEDPA, 28 U.S.C. S 2244(d). Robinson, in return, argued
that the Commonwealth’s statute of limitations defense was
untimely.

                                5


The Magistrate Judge vacated his initial order granting
Robinson leave to amend his petition, and instead
substituted a Report and Recommendation adopting the
District Attorney’s argument that Robinson’s second federal
habeas petition should be dismissed on statute of
limitations grounds. In particular, the Magistrate Judge
concluded that (1) Robinson’s third state petition had not
been "properly filed" because it involved claims subject to a
state procedural default rule and did not toll the period of
limitations; (2) therefore, Robinson’s second federal habeas
petition was required to be filed on or before April 23, 1997;
(3) alternatively, if the third state habeas petition had been
"properly filed," then Robinson’s second federal habeas
petition should have been filed on or before September 25,
1997; and (4) finally, because Robinson had access to his
legal papers for eleven of the twelve months prior to the
expiration of the September 1997 limitations period, the
period of limitations should not be equitably tolled.

The District Court adopted the Magistrate Judge’s Report
and Recommendation over Robinson’s renewed objection
that the Commonwealth had waived its limitations defense
and Robinson’s further proffer regarding the efforts he had
made to acquire his legal papers. Robinson noted a timely
appeal, and the District Court granted his request for a
certificate of appealability.2 Robinson was granted leave to
proceed in forma pauperis, and we appointed counsel to
represent him.

A.

Our first question is whether it is even possible for a
State to waive its AEDPA limitations defense, an issue
which we have not yet specifically addressed. The statute of
limitations provision of the AEDPA provides, in pertinent
part:
_________________________________________________________________

2. Although Robinson moved in the Court of Appeals for a certificate of
appealability, it was the District Court which granted the request. This
is not a problem since the District Court may grant sua sponte a
certificate of appealability. See Dunn v. Colleran, 247 F.3d 450, 456 (3d
Cir. 2001).

                                6


       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 . . . the
       date on which the judgment became final by the
       conclusion of direct review or the expiration of the time
       for seeking such review.

28 U.S.C. S 2244(d)(1)(A). The District Court dismissed
Robinson’s habeas petition because it was filed beyond this
1-year period of limitation.

The law of this Circuit clearly holds that the limitations
provision of the AEDPA is not jurisdictional in nature. See
Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616,
617-18 (3d Cir. 1998). As such, it is subject to equitable
modifications such as tolling. Id. (citing Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.
1994)).
Other courts of appeals (which, like us, do not view the
AEDPA limitations period as jurisdictional) have held that a
limitations defense may be waived by a State defendant in
a habeas proceeding. See, e.g., Green v. United States, 260
F.3d 78, 85 (2d Cir. 2001) (finding that "the government
[had] expressly waive[d] its [AEDPA] statute of limitations
defense by advocating a remand and ‘suggesting’ the
conditions for that remand"); Saucier v. Warden, N.H. State
Prison, 215 F.3d 1312 (table), 2000 WL 739713 (1st Cir.
2000) (unpublished opinion) (finding that government did
not waive its AEDPA statute of limitations defense, even
though it did not assert the defense in its answer, where
the petitioner showed no prejudice; thus implying that
government waiver is possible); Scott v. Johnson , 227 F.3d
260 (5th Cir. 2000) (finding that the government did not
waive its AEDPA statute of limitations defense, thus
implying that government waiver is possible); Samuel v.
Duncan, 92 F.3d 1194 (9th Cir. 1996) (table) (unpublished
opinion) (AEDPA statute of limitations defense can be
waived).

We join these courts of appeals and now hold that
because the AEDPA limitations period is subject to
equitable modifications such as tolling, it is also subject to

                                7


other non-jurisdictional, equitable considerations, such as
waiver.

B.

Parties are generally required to assert affirmative
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. Rule 11 of
the Rules Governing Section 2254 Cases in the United
States District Courts (the "Habeas Rules") makes the
Federal Rules of Civil Procedure applicable to habeas
petitions to the extent they are not inconsistent with the
Habeas Rules. Federal Rule of Civil Procedure 8(c) requires
that a defendant plead an affirmative defense, such as a
statute of limitations defense, in his answer. Rule 8(c)
states:

       Affirmative Defenses. In pleading to a preceding
       pleading, a party shall set forth affirmatively . . .
       statute of limitations . . . and any other matter
       constituting an avoidance or affirmative defense.

Fed. R. Civ. P. 8(c).

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. See Blonder-Tongue Labs., Inc. v. Univ.
of Ill. Found., 402 U.S. 313, 350 (1971); see also Williams
v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir. 1995)
("The purpose of Rule 8(c) is to give the court and the other
parties fair warning that a particular line of defense will be
pursued."); Grant v. Preferred Research, Inc. , 885 F.2d 795,
797 (11th Cir. 1989) ("The Supreme Court has held that the
purpose of Rule 8(c) is to give the opposing party notice of
the affirmative defense and a chance to rebut it.") (citing
Blonder-Tongue); Marino v. Otis Eng’g Corp. , 839 F.2d 1404,
1408 (10th Cir. 1988) ("The purpose behind rule 8(c) . . . [is
to] put[ ] ‘plaintiff on notice well in advance of trial that
defendant intends to present a defense in the nature of an
avoidance.’ ") (citations omitted); Perez v. United States, 830
F.2d 54, 57 (5th Cir. 1987) ("The central purpose of the

                                8


Rule 8(c) requirement that affirmative defenses be pled is to
prevent unfair surprise. ‘A defendant should not be
permitted to ‘lie behind a log’ and ambush a plaintiff with
an unexpected defense.’ ").

Technically, the Federal Rules of Civil Procedure require
that affirmative defenses be pleaded in the answer. Rule
12(b) states that "[e]very defense . . . shall be asserted in
the responsive pleading thereto if one is required, except
that the following defenses may at the option of the pleader
be made by motion . . . ." The defenses listed in Rule 12(b)
do not include limitations defenses. Thus, a limitations
defense must be raised in the answer, since Rule 12(b) does
not permit it to be raised by motion. However, the law of
this Circuit (the so-called "Third Circuit Rule") permits a
limitations defense to be raised by a motion under Rule
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."3 Hanna v. U.S. Veterans’
Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975). "If the
bar is not apparent on the face of the complaint, then it
may not afford the basis for a dismissal of the complaint
_________________________________________________________________

3. The "Third Circuit Rule" dates back at least to 1948 when we
recognized in Hartmann v. Time, Inc., 166 F.2d 127, 139 (3d Cir. 1948),
that affirmative defenses are ordinarily pleaded pursuant to Fed. R. Civ.
P. 8(c), but that the defense could be raised in other ways. See also
Williams v. Murdoch, 330 F.2d 745, 749 (3d Cir. 1964) (affirmative
defense of res judicata may be raised by a motion to dismiss or by an
answer); Cito v. Bridgewater Twp. Police Dep’t , 892 F.2d 23, 25 (3d Cir.
1989) ("When reviewing a Rule 12(b)(6) dismissal on statute of
limitations grounds, we must determine whether ‘the time alleged in the
statement of a claim shows that the cause of action has not been
brought within the statute of limitations.’ " (citations omitted)); Davis v.
Grusemeyer, 996 F.2d 617, 623 (3d Cir. 1993) (quoting Cito); Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir.
1994) ("While the language of Fed. R. Civ. P. 8(c) indicates that a statute
of limitations defense cannot be used in the context of Rule 12(b)(6)
motion to dismiss, an exception is made where the complaint facially
shows noncompliance with the limitations period and the affirmative
defense clearly appears on the face of the pleading."); Rycoline Prods.,
Inc. v. C&W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997) (affirmative
defense must be apparent on the face of the complaint to be subject to
a Rule 12(b)(6) motion to dismiss).

                                9


under Rule 12(b)(6)." Bethel v. Jendoco Constr. Corp., 570
F.2d 1168, 1174 (3d Cir. 1978).

The Commonwealth argues, and we agree, that a
limitations defense does not necessarily have to be raised in
the answer. But it does not follow that a limitations defense
can be raised at any time. Consistent with the purpose of
Rule 8(c), courts require that defendants assert a
limitations defense as early as reasonably possible. See
Davis v. Bryan, 810 F.2d 42 (2d Cir. 1987) ("The statute of
limitations is an affirmative defense under Fed. R. Civ. P.
8(c) that must be asserted in a party’s responsive pleading
‘at the earliest possible moment’ and is a personal defense
that is waived if not promptly pleaded.") (citations omitted);
Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416
(D.C. Cir. 1986); Paetz v. United States, 795 F.2d 1533
(11th Cir. 1986); Hopkins v. Andaya, 958 F.2d 881 (9th Cir.
1992); Day v. Liberty Nat. Life Ins. Co., 122 F.3d 1012,
1015-16 (11th Cir. 1997) (employer waived statute of
limitations defense to AEDPA claim by not raising it until
after a jury verdict in its motion to alter or amend
judgment).

Courts routinely consider the timeliness of a limitations
defense. Although some have adhered to the strict language
of Rule 8(c), which requires that a limitations defense be
raised in the answer, others have considered the stage of
the proceedings at which the limitations defense is first
raised. For example, the Seventh Circuit in Venters v. City
of Delphi, 123 F.3d 956 (7th Cir. 1997), found that the
defendants waived their statute of limitations defense when
they did not raise it until late in the proceedings. In
Venters, the defendants did not include their statute of
limitations defense in their answer to the original and
amended complaints. Id. at 968. Instead,"the first and only
mention of the statute of limitations came in their reply
memorandum in support of the motion for summary
judgment, submitted a year after the case was filed." Id.
The court acknowledged that many cases "recognize that
the failure to plead an affirmative defense can be harmless,
notwithstanding the terms of Rule 8(c)," id. , but found that
in this case the defendants had deprived the plaintiff of fair
notice and a reasonable opportunity to respond to their

                                10


affirmative defense by not raising it until "the parties had
largely completed an exhaustive discovery process, and the
scheduled trial date was only a month away." Id. See also
Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155 (2d
Cir. 1968) ("[W]here the party seeking to amend [the
answer] wishes to raise a defense of limitations long after
the answer was first filed, a court would be remiss if it did
not carefully balance the effects of such action for it is
manifest that risk of substantial prejudice increases in
proportion to the length of defendant’s delay in seeking the
amendment. . . . In sum, the party wishing to raise the
defense is obliged to plead the Statute of Limitations at the
earliest possible moment."); Hayden v. Ford Motor Co., 497
F.2d 1292, 1295 (6th Cir. 1974) ("Whatever the motives
behind the plaintiff ’s and defendant’s pleading strategy, to
allow the defendant to raise the bar of the statute of
limitations after so long a delay [thirty months] and after so
many intervening acts had occurred, would make a
mockery of the intent and purpose of the statute of
limitations."); Int’l Bhd. of Boilermakers, Local 1603 v.
Transue & Williams Corp., 879 F.2d 1388, 1396 n.3 (6th
Cir. 1989) (rejecting limitations defense as untimely when
first raised in a motion to amend the district court’s
judgment over a year after the suit was filed).

We have even found a limitations defense to be waived
where it was pleaded in the answer, but where it was not
pursued before trial. In Bradford-White Corp. v. Ernst &
Whinney, 872 F.2d 1153 (3d Cir. 1989), the defendant
raised the statute of limitations defense in its answer, but
"it did not file a motion or present argument before the
district court on the statute of limitations issue at any time
before or at the trial." Id. Then, following a trial and jury
verdict, the defendant attempted to raise its statute of
limitations defense in post-trial motions. Id. at 1154. We
did not permit this, finding that "it would be grossly unfair
to allow a plaintiff to go to the expense of trying a case only
to be met by a new defense after trial." Id. at 1161.

All of these cases reflect, in one form or another,
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). Affirmative

                                11


defenses must be raised as early as practicable, not only to
avoid prejudice, but also to promote judicial economy. 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.

We hold, therefore, that affirmative defenses under the
AEDPA should be 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.

II.

The issue before us on rehearing is whether the
Commonwealth’s assertion of its affirmative defense of the
statute of limitations was untimely.

To recapitulate the sequence of events, Robinson’s
relevant federal habeas petition was filed September 25,
1998. On November 10, 1998, the Magistrate Judge
ordered that the Commonwealth file a responsive pleading
and memorandum. In its letter response, the
Commonwealth sought transfer to this court, arguing that
the petition was successive because Robinson had filed an
earlier federal habeas petition that had been dismissed.4
The Commonwealth’s successiveness argument persuaded
the District Court, which dismissed the complaint.
However, under the holding of Christy v. Horn, "when a
prior petition [for habeas corpus] has been dismissed
without prejudice for failure to exhaust state remedies, no
[court] authorization is necessary and the petitioner may
file his petition in the district court as if it were the first
such filing." 115 F.3d at 208.

Although Robinson relied on the decision in Christy in
his objections to the Magistrate Judge’s Report and
_________________________________________________________________

4. The Commonwealth argued at the time that Robinson’s first petition
was dismissed on the merits, but, in fact, the docket entry for our order
dated April 8, 1992 states that Robinson’s request for a certificate of
probable cause was denied because "of a failure to exhaust state
remedies."

                                12


Recommendation, the District Court, in a brief order that
did not refer to Christy, adopted the Magistrate Judge’s
recommendation that the habeas petition be dismissed.
Thereafter, on December 13, 1999 we ordered the
Commonwealth to show cause why we should not
summarily reverse the District Court’s dismissal of
Robinson’s habeas petition in light of Christy . The
Commonwealth filed a letter brief conceding that under
Christy the petition was not successive because the earlier
petition had been dismissed on exhaustion grounds. On
February 2, 2000, we reversed the dismissal and remanded
the case to the District Court "for consideration as if [the
petition] were [Robinson’s] first habeas petition." Order,
Robinson v. Johnson, No. 99-1434 (3d Cir. Feb. 2, 2000).

On February 18, 2000, the Magistrate Judge ordered the
Commonwealth to file a response on the merits of the
petition. On March 2, 2000, Robinson filed a motion in the
District Court to strike his petition for habeas corpus relief
and to permit him to file an amended petition. On March
14, 2000, the Magistrate Judge granted Robinson’s motion
and gave him 45 days to amend his petition. On March 30,
2000, the Commonwealth filed a response to the petition,
there asserting for the first time its argument that
Robinson’s habeas petition was barred by AEDPA’s statute
of limitations. In the same document, the Commonwealth
moved for reconsideration of the order granting leave to
amend. The Magistrate Judge vacated his prior order
allowing Robinson to amend his petition and issued a
report and recommendation that the habeas petition be
dismissed as untimely, which the District Court adopted.
Robinson argues that the Commonwealth’s assertion of
the statute of limitations defense was too late and that it
should have been asserted at the same time as the
Commonwealth’s challenge to the petition on
successiveness grounds. He contends that nothing in the
Federal Rules of Civil Procedure prevented the
Commonwealth from asserting all of its defenses in its
initial answer. On reconsideration of this argument, we do
not agree with Robinson’s waiver argument.

Because Fed. R. Civ. P. 12 was promulgated before the
enactment of AEDPA, the rule does not refer to the

                                13


successiveness issue and it therefore does not categorize
that issue among the defenses referred to in the rule. Most
courts that have considered the issue treat the
successiveness issue as comparable to the defense that the
court lacks jurisdiction of the subject matter. See Spivey v.
State Bd. of Pardons & Paroles, 279 F.3d 1301, 1303 (11th
Cir. 2002) (per curiam) (holding that where prisoner’s
S 1983 claim was the "functional equivalent" of a second
habeas petition, and "he did not first apply with this Court
for permission to file a second or successive petition as
required by 28 U.S.C. S 2244(b)(3)(A), the district court
lacked jurisdiction to entertain [his] claim"); United States v.
Gallegos, 142 F.3d 1211, 1212 (10th Cir. 1998) (per
curiam) (concluding that when petitioner failed to obtain
"prior authorization" from the court of appeals before filing
his third habeas petition in the district court, the"district
court lacked subject matter jurisdiction" to decide the
petition and its order on the merits "must be vacated");
Nelson v. United States, 115 F.3d 136, 136 (2d Cir. 1997)
("to the extent the district court dealt with the[successive]
S 2255 motion on its merits, the judgment of that court be
and it hereby is vacated for lack of jurisdiction in that court
to entertain the motion" because petitioner had not
obtained an order authorizing such a petition from the
court of appeals).

Rule 12(g) requires the consolidation of all defenses
"which th[e] rule permits to be raised by motion." Fed. R.
Civ. P. 12(g). Although, as discussed earlier, the so-called
Third Circuit Rule permits a limitations defense to be raised
by motion, Rule 12 does not list it among the enumerated
defenses deemed waived if not consolidated with other
defenses. See Fed. R. Civ. P. 12(h) (setting forth defenses
waived if omitted from motion in circumstances described
in Rule 12(g)).

A somewhat comparable situation arose in Perry v.
Sullivan, 207 F.3d 379 (7th Cir. 2000), where the defendant
filed a motion to dismiss the second amended complaint for
failure to state a claim, which was granted in part. In
response to the third amended complaint, defendant filed a
motion to dismiss on the ground that the statute of
limitations had run. The district court granted the motion,
                                14


and the court of appeals affirmed, holding that defendant
had not waived the statute of limitations defense because
he had not filed an answer. The court stated, "[defendant]
did not waive his statute of limitations defense by waiting
to file it until after the 12(b)(6) motions had run their
course." Id. at 383.

The Commonwealth’s letter response to Robinson’s
habeas petition seeking transfer to this court was
equivalent to a motion to dismiss for lack of subject matter
jurisdiction. A motion to dismiss for lack of subject matter
jurisdiction is an even more favored affirmative defense
than a motion to dismiss for failure to state a claim. See
Fed. R. Civ. P. 12(h). It follows that in initially seeking
transfer to this court the Commonwealth did not act
inconsistently with Rule 12’s requirements as to the
presentation of defenses.

Equally important is the recognition that AEDPA places
the defense of successiveness on a different level than other
affirmative defenses, such as the statute of limitations.
Practically speaking, it is unique. Second or successive
petitions for habeas relief have always faced significant
obstacles to consideration in the federal courts because
they are, for the most part, wasteful of judicial time and
effort. The passage of AEDPA in 1996 strengthened these
obstacles by creating a special screening process for the
consideration of second or successive petitions, often
referred to as a " ‘gatekeeping’ mechanism." Felker v.
Turpin, 518 U.S. 651, 657 (1996). Section 2244(b) provides
both procedural and substantive limits on the filing of
second or successive petitions. One of the most significant
changes is the requirement that the applicant must secure
approval from the court of appeals to file a successive
petition. 28 U.S.C. S 2244(b)(3)(A) (2001); H.R. Conf. Rep.
No. 104-518, at 111 (1996). Unless the court of appeals
grants such permission, the district court may not consider
the second or successive petition.

Review of the language of S 2244(b)(3)(A) makes apparent
the threshold nature of the inquiry into successiveness. The
statute provides:

       Before a second or successive application permitted by
       this section is filed in the district court, the applicant

                                15


       shall move in the appropriate court of appeals for an
       order authorizing the district court to consider the
       application.

28 U.S.C. S 2244(b)(3)(A) (emphasis added).

Robinson argues that there is no significance to the
statute’s introduction to this requirement with the word
"before." We are not persuaded. No other defense is
accompanied by this statutory imperative, and it is
apparent that the statutory structure gives priority to the
successiveness challenge.

It is true, as Robinson argues, that the Commonwealth
could have raised its statute of limitations defense in the
District Court when it raised the successiveness issue in
response to Robinson’s 1998 petition for habeas, but
imposing such a requirement is contrary to the procedure
established by AEDPA. When a second or successive
habeas petition is erroneously filed in a district court
without the permission of a court of appeals, the district
court’s only option is to dismiss the petition or transfer it
to the court of appeals pursuant to 28 U.S.C. S 1631. The
statute limits the authority of the district court to consider
second or successive petitions without an order of the court
of appeals. The district courts recognize this limitation. In
United States v. Enigwe, No. 92-00257, 1998 U.S. Dist.
LEXIS 15149, at *11-*12 (E.D. Pa. Sept. 28, 1998) (citations
omitted) (quoting Pratt v. United States, 129 F.3d 54, 57
(1st Cir. 1997)), aff ’d 248 F.3d 1131 (3d Cir. 2000)
(unpublished), the court stated: "Th[e] statutory directive
means that a district court, faced with an unapproved
second or successive habeas petition, must either dismiss
it or transfer it to the appropriate court of appeals."

As the Court of Appeals for the Seventh Circuit has
stated when considering a similar issue:

       [O]nly this court may authorize the commencement of
       a second or successive petition. . . . From the district
       court’s perspective, it is an allocation of subject-matter
       jurisdiction to the court of appeals. A district court
       must dismiss a second or successive petition, without
       awaiting any response from the government, unless the
       court of appeals has given approval for its filing. Even

                                16


       an explicit consent by the government to beginning the
       case in the district court would be ineffectual; the
       power to authorize its commencement does not reside
       in either the district court or the executive branch of
       government.

Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)
(emphasis in original).

There is no practical opportunity for a district court to
consider merits defenses, such as the statute of limitations
defense, before this court grants authorization to do so
under 28 U.S.C. S 2244(b)(3)(A). It would circumvent the
intent of the gatekeeping function of S 2244 for a district
court to proceed to rule on the merits of a second or
successive petition or on any affirmative defense before the
court of appeals has made a decision whether to let the
petition for habeas corpus proceed in the district court.
Defenses such as the statute of limitations would be
premature at this stage. We therefore reject Robinson’s
argument that the Commonwealth waived its statute of
limitations defense by not raising it in the District Court
when it challenged Robinson’s petition on the ground of
successiveness.

Robinson next argues that the Commonwealth was
obliged to raise its statute of limitations defense in this
court in response to his appeal from the District Court’s
dismissal of his petition for habeas corpus. Although
Robinson is correct that AEDPA does not preclude a court
of appeals from considering the statute of limitations
defense in deciding whether to grant permission to file a
successive habeas petition, and it may well choose to do so,
there is no rule that requires the Commonwealth to raise
that issue at the appellate level. And, of course, Rule 12
governing waiver of defenses and consolidation of
affirmative defenses in a motion applies only to pleadings in
the district court. Moreover, it is not the usual practice of
this court to consider and determine a defense that has not
been considered in the first instance by the district court.
Often, such defenses require submission of evidentiary
material which appellate courts are not in a position to
consider in the first instance. It follows that the
Commonwealth was not obliged to raise its statute of

                                17


limitations defense on appeal and therefore cannot be
deemed to have waived the defense for failure to raise it on
appeal.

Indeed, as the Commonwealth points out, there was no
appeal of the District Court’s dismissal as that term is
ordinarily construed. Instead, Robinson sought a certificate
of appealability from this court under 28 U.S.C.
S 2253(c)(1). We granted a certificate of appealability limited
to "[w]hether the District Court erred by dismissing
Appellant’s petition for writ of habeas corpus under 28
U.S.C. S 2254 as a second or successive petition for which
Appellant did not obtain authorization from this Court to
file under 28 U.S.C. S 2244(b)(3)." Order, Robinson v.
Johnson, No. 99-1434 (3d Cir. Dec. 13, 1999). 5

The Commonwealth was directed to show cause within
fourteen days why the District Court’s dismissal should not
be summarily reversed and remanded for consideration as
if it were Robinson’s first petition. The Commonwealth
limited its response to the issue identified.

This court’s order was directed specifically to the
Commonwealth filing an answer as to whether the habeas
petition was successive. As proceedings were directed solely
to determining whether the petition would be allowed under
the successiveness rules, there would have been no reason
for the Commonwealth to raise an alternate ground to
uphold the dismissal, which might require the development
of a record. Ordinarily, the court of appeals’ consideration
of a request for authorization to file a second or successive
petition is limited to whether the applicant has made a
prima facie showing that the petition complies with the
habeas statute’s substantive successive petition standards.
28 U.S.C. S 2244(b)(3)(C). Because of this limited scope of
review, the Commonwealth appropriately limited its
response to the issue of successiveness.
_________________________________________________________________

5. In support of this argument, Robinson relies on the principle that a
party who failed to raise an argument in its initial appeal is held to have
waived its right to raise that argument on remand or on a second appeal.
That principle must be limited to issues appropriate to be raised on
appeal. It does not require a party to raise an issue that had not been
previously treated or even raised in the district court.

                                18


After the Commonwealth conceded that Robinson’s
petition was not successive in light of the development of
the law, this court remanded the petition to the District
Court "for consideration as if it were [Robinson’s] first
habeas petition." Order, Robinson v. Johnson , No. 99-1434
(3d Cir. Feb. 2, 2000). This language mirrors that in our
decision in Christy where we held that "when a prior
petition has been dismissed without prejudice for failure to
exhaust state remedies, no [prior] authorization is
necessary and the petitioner may file his petition in the
district court as if it were the first such filing." 115 F.3d at
208 (emphasis added). Once the issue of successiveness
was disposed of, the Commonwealth could then move
beyond that threshold issue to present defenses to the
petition, such as the statute of limitations. It was only at
this point that the normal rules regarding the waiver of
defenses under Fed. R. Civ. P. 8(c) applied. Because the
Commonwealth raised the statute of limitations in its first
pleading that was filed in the District Court on remand, we
hold that it did not waive this defense.

It follows that we must reject Robinson’s suggestion that
the Commonwealth’s failure to raise its statute of
limitations defense in this court constituted a waiver.

III.

Robinson suggests that if the Commonwealth did not
waive the statute of limitations defense, then this court
should hold that his case warrants equitable tolling and
should be remanded to the District Court for an evidentiary
hearing on that question. We have held that the statutes of
limitations in AEDPA are subject to tolling in light of
equitable considerations. Miller, 145 F.3d at 617. In Miller,
we explained that "equitable tolling is proper only when the
‘principles of equity would make [the] rigid application [of a
limitation period] unfair.’ " Id. at 618 (quoting Shendock v.
Director, Office of Workers’ Compensation Programs , 893
F.2d 1458, 1462 (3d Cir. 1990) (in banc) (alteration in
original)). "Generally, this will occur when the petitioner
has ‘in some extraordinary way . . . been prevented from
asserting his or her rights.’ " Id. (quoting Oshiver v. Levin,

                                19


Fishbein, Sedran & Berman, 38 F.3d 1380, 1380 (3d Cir.
1994)).

To be successful in asserting this exception to the statute
of limitations, the petitioner must "show that he or she
‘exercised reasonable diligence in investigating and bringing
[the] claims’ . . . . Mere excusable neglect is not sufficient."
Id. at 618-19 (quotation omitted). In addition, we have
cautioned that "a statute of limitations should be tolled
only in the rare situation where equitable tolling is
demanded by sound legal principles as well as the interests
of justice." Jones v. Morton, 195 F.3d 153, 159 (3d Cir.
1999) (quotation omitted). See also Nara v. Frank, 264 F.3d
310 (3d Cir. 2001) (remand for evidentiary hearing on
whether equitable tolling is warranted because of
defendant’s mental health problems and failures by his
attorney).

Robinson argues that his circumstances warrant an
evidentiary hearing on the availability of equitable tolling.
Robinson states that he was transferred to a different unit
at his correctional institution just under five weeks before
the expiration of the statute of limitations for his petition.
Br. of Appellant at 31. He contends that at the time of the
transfer in August 1997, all of his personal belongings,
including his legal papers, were taken from him and never
returned. Br. of Appellant at 31. He asserts that without
those legal papers he could not submit a timely petition.

The record shows that Robinson filed a grievance in
December 1997, over two months after the limitations
period had expired, stating that he had asked prison staff
members to obtain his documents in September 1997. See
Robinson’s 3/2/00 motion for an order mandating District
Attorney to provide records. He states that his papers were
never returned, Br. of Appellant at 31-32, but that on an
undisclosed date, he acquired a copy of his 1991 habeas
petition from a former cellmate and, with the aid of this
copy, he was able to write his new petition. Br. of Appellant
at 32. As we previously noted, Robinson filed this petition
with the District Court in September 1998.

The facts of this case do not present a basis for equitable
tolling. Robinson was only deprived of his legal papers for

                                20


a few weeks of the year-long statute of limitations. He
argues, based on the disposition in Miller, that an
evidentiary hearing is required. However, Miller was the first
case in which this court held that AEDPA’s statute of
limitations may be equitably tolled in appropriate
circumstances. Thus, the court remanded so that the
District Court could consider the issue in the first instance.
In contrast to the facts in Miller, here Robinson had raised
equitable tolling in the District Court, and was
unsuccessful. Miller neither holds nor states that an
evidentiary hearing must be held in every case where the
petitioner alleges deprivation of access to legal papers.

In addition, Robinson has not shown that he exercised
adequate diligence in attempting to file a timely petition.
Although he did informally request return of his papers
after his August 19, 1997 transfer, the grievance filed in
December 1997, after the expiration of his federal
limitations period, stated that he needed the documents for
his state court filings. While he ultimately received a copy
of his old habeas petition, he filed his petition without the
benefit of his removed legal papers, suggesting, if not
demonstrating, that they were not necessary to his federal
filing.

Several other courts that have considered this issue
under similar circumstances have held that deprivation of
legal material for a relatively brief time period is not
sufficient to warrant tolling. See Fisher v. Johnson, 174
F.3d 710 (5th Cir. 1999) (equitable tolling not warranted
when prisoner restricted to psychiatric ward for seventeen
days without access to legal materials, but holding that it
might have been a stronger case if the incapacitation
occurred closer to the filing deadline); Allen v. Lewis, 255
F.3d 798, 801 (9th Cir. 2001) (per curiam) (denial of access
to legal materials for one month near beginning of the
statute of limitations did not warrant application of
equitable tolling) (rehearing en banc on other grounds, 295
F.3d 1046 (9th Cir. 2002)); but see Valverde v. Stinson, 224
F.3d 129, 133-35 (2d Cir. 2000) (finding confiscation of
legal papers "extraordinary" and sufficient to warrant an
evidentiary hearing, and rejecting argument that petitioner
should be faulted for failing to file earlier to protect against
possible confiscation).

                                21


Admittedly, in Allen and Fisher the petitioners were
deprived of their materials early in the limitations period
when there was adequate time to correct the problem.
Robinson’s deprivation occurred at the very end of the
limitations period. His case more closely resembles that in
Valverde where the papers were confiscated at the end of
the limitations period. But Robinson still has not
demonstrated the diligence necessary to warrant an
evidentiary hearing on his claim. For example, Robinson
does not claim that he was working on the habeas petition
before his papers were removed, although there was
adequate time to have done so. Summarizing, he had the
majority of the limitations period to work on his petition,
filed his formal grievance long after the limitations period
expired, ultimately filed his petition without the benefit of
the removed papers, and did not seek to file a timely
petition and then clarify it once he had access to his
materials as 28 U.S.C. S 2242 and Fed. R. Civ. P. 15(a)
would allow. See United States v. Duffus, 174 F.3d 333, 337
(3d Cir. 1999). Robinson has not alleged facts sufficient to
show that "sound legal principles as well as the interests of
justice" demand pursuit of the "sparing" doctrine of
equitable tolling. Jones, 195 F.3d at 159. 6

CONCLUSION

For the reasons set forth, we will affirm the order of the
_________________________________________________________________

6. Robinson argues that the equities favor him because he has been
waiting for more than 3 years for a determination of the merits of his
habeas petition. Robinson, a convicted first-degree murderer, has been
exceedingly lax throughout in his adherence to the procedural
requirements. There would have been no issue of exhaustion with
respect to his first habeas petition had he filed the petition for allocatur
in 1989 with the Pennsylvania Supreme Court, which he did not. He did
not appeal the denial of his second petition under the PCRA. It was only
with his third PCRA application, filed in 1994, that he proceeded to
exhaust all of the Pennsylvania procedures. He is hardly in the position
of a clean hands petitioner. Moreover, because Robinson’s petition was
untimely, as the District Court found and we have affirmed, the delay in
hearing the merits of the habeas petition cannot have caused him any
prejudice.

                                22


District Court dismissing Robinson’s petition for a writ of
habeas.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                23
