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


3-11-2002

Robinson v. Johnson
Precedential or Non-Precedential:

Docket 0-1979




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PRECEDENTIAL

       Filed March 11, 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

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 98-cv-05095)
District Judge: The Honorable Herbert J. Hutton

ARGUED OCTOBER 29, 2001

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

(Filed: March 11, 2002)
       Paul Rosenzweig, Esq. (Argued)
       Suite 300
       516 C Street, N.E.
       Washington, DC 20002

        Counsel for Appellant

       David C. Glebe, Esq. (Argued)
       Office of the District Attorney
       1421 Arch Street
       Philadelphia, PA 19102

        Counsel for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

This case arises out of a federal habeas corpus action
brought by a prisoner in state custody. The Commonwealth1
originally argued that the prisoner's petition was successive
and should therefore be dismissed. The District Court
dismissed the petition as successive, and the prisoner
appealed. On appeal, the Commonwealth conceded that the
petition actually was not successive, but offered no
alternative legal grounds upon which we could have
affirmed the District Court's decision. Thus, we remanded.
On remand, the Commonwealth argued for the first time
that the prisoner's petition was barred by the applicable
one-year statute of limitations. The prisoner objected to the
untimeliness of the Commonwealth's assertion of its
limitations defense, but the District Court dismissed the
habeas petition as time-barred.

On appeal, the prisoner argues (1) that the
Commonwealth waived its limitations defense, or in the
alternative, (2) that if the Commonwealth did not waive its
limitations defense, then he is entitled to an evidentiary
hearing to determine if the statute of limitations should be
equitably tolled because the Commonwealth allegedly
_________________________________________________________________

1. "Commonwealth" will be used throughout this opinion to refer to the
Appellees collectively.

                                2
deprived him of the legal papers necessary to file his
petition in a timely fashion. Because we find that the
Commonwealth did not raise its affirmative defense at the
earliest practicable moment, we hold that the
Commonwealth waived its limitations defense.2 We will
therefore reverse and remand.

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"),3 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
Fourth Amendment. A Magistrate Judge issued a Report
_________________________________________________________________

2. Thus, we will not address the equitable tolling argument.

3. 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
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 5, 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
support thereof" from the Office of the District Attorney of

                                4
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.4 Robinson was granted leave to
proceed in forma pauperis, and we appointed counsel to
represent him.

II.

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
_________________________________________________________________

4. 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
limitations provision of the AEDPA provides, in pertinent
part:

       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,
Fishbeign, 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).

                               7
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
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

                               8
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
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."5 Hanna v. U.S. Veterans'
_________________________________________________________________

5. 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, Fishbeign, 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
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
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,

                                10
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
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

                               11
affirmative defenses consistent with at least the purpose, if
not necessarily the language, of Rule 8(c). Affirmative
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.

The Commonwealth argues that the question of whether
Robinson's petition was successive was "logically and
conceptually prior" to the question of whether the petition
was time-barred. In support, the Commonwealth points out
that if Robinson's petition were successive, then no matter
what it contained nor whether or not it was timely, the
petition could have been dismissed. We disagree. Although
the Commonwealth is correct that if the petition were
successive then it could be disposed of no matter if it were
timely or not, the Commonwealth fails to recognize that the
converse is equally true -- that is, if the petition were time-
barred, it did not matter whether the petition were
successive or not. There is no logical or conceptual priority
to the limitations defense.

The Commonwealth took this argument one step further
during oral argument by pointing to statutory language
which supports its position that successivity defenses
should be addressed before limitations defenses. This is not
an argument that the successivity defense is logically or
conceptually prior to the limitations defense, but is an
argument that successivity is statutorily prior to
limitations. As we will explain, there is some merit to this
argument, but even accepting it as true does not save the
Commonwealth's defense.

The Commonwealth's argument rests upon the statutory
language of 28 U.S.C. S 2244(b)(3)(A). That section states:

                                12
       Before a second or successive application permitted by
       this section is filed in the district court, the applicant
       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). The Commonwealth placed great
reliance during oral argument upon the statute's use of the
word "before." Because a successive petition may not be
filed in the district court "before" the habeas petitioner
obtains an order from a court of appeals, the
Commonwealth argues that successivity defenses must be
considered before limitations defenses; thus, there is a
priority between the two created by the text of the statute
itself. We agree. But the Commonwealth's larger argument
still fails for two reasons: one textual and one equitable.

First, the language of S 2244(b)(3)(A) places a limitation
upon habeas petitioners, and, by implication, upon district
courts. That subsection does not permit a habeas petitioner
to file a successive petition in a district court without first
obtaining an authorizing order from a court of appeals.
Since a successive petition may not be filed in the district
court without such an order, the statute also impliedly
limits the ability of a district court to consider a successive
petition. While the text of the statute thus limits habeas
petitioners and district courts, it does not limit in any way
the Commonwealth or a court of appeals. There is nothing
whatsoever in S 2244(b)(3)(A) which prohibits the
Commonwealth from complying with the standard practice
of asserting all affirmative defenses early in litigation. The
Commonwealth could have raised its limitations defense in
the District Court along with its successivity defense;
nothing in the statute prevented it from doing so.
Furthermore, nothing in S 2244(b)(3)(A) limits a court of
appeals from considering a limitations defense as an
alternative legal ground supporting a District Court's
decision. Here, at minimum, when the Commonwealth
conceded before us that Robinson's petition was not
successive, it could have asserted its limitations defense as
an alternative legal ground upon which we could have
affirmed the District Court's order dismissing Robinson's
habeas petition. Doing so would not have contravened

                               13
S 2244(b)(3)(A) in any way. Thus, the Commonwealth could
have raised its limitations defense at the earliest practicable
moment before the District Court or, at the latest, before us
on its first appeal from the District Court's order without
offending any statutory provision.

The second reason why the Commonwealth's position
fails is equitable. We must not forget that while all of this
legal wrangling goes on, Robinson has been waiting for
someone to hear the merits of his habeas petition.
Robinson's ordeal has been prolonged only because of the
Commonwealth's mistake. Robinson filed a habeas petition.
It was not successive, but the Commonwealth argued that
it was. The District Court agreed with the Commonwealth,
and Robinson was forced to appeal to vindicate his
position. When asked on appeal to show cause why the
District Court's order should not be summarily reversed,
the Commonwealth suddenly saw the light and realized
that Robinson's petition actually was not successive. The
Commonwealth had erred. After the case was remanded,
and after Robinson had been granted permission to file an
amended complaint, the Commonwealth finally raised its
limitations defense. This appeal ensued. Meanwhile,
Robinson has been waiting in prison. If the Commonwealth
had successfully raised its limitations defense in a timely
manner, Robinson's equitable tolling argument may have
been addressed, and if he were successful, there may well
have been by now a hearing on the merits of Robinson's
petition. We think it would be patently unfair to penalize
Robinson for the Commonwealth's error. A rule requiring
the Commonwealth to raise all its affirmative defenses at
the earliest practicable moment will prevent unfairness of
this kind.

C.

We must now apply the rule to the facts of this case. The
following facts are undisputed:

       1. Robinson filed this habeas action on September 25,
       1998.

       2. The Commonwealth filed its responsive pleading on
       January 27, 1999, in which it argued that

                               14
       Robinson's petition was successive and should not
       be heard by the District Court, but the
       Commonwealth did not argue in the alternative
       that the petition was time-barred.

       3. On April 26, 1999, the District Court accepted the
       Commonwealth's argument and denied the petition
       as successive.

       4. Robinson appealed to this Court.

       5. On December 23, 1999, the Commonwealth
       conceded in its response before this Court that
       Robinson's petition was not successive, but the
       Commonwealth did not offer its statute of
       limitations defense as an alternative ground upon
       which to affirm to the District Court.

       6. The case was remanded, and the Magistrate Judge
       granted Robinson's motion to amend his petition.

       7. On March 30, 2000, in a motion to reconsider the
       order granting permission to amend, the
       Commonwealth asserted for the first time that
       Robinson's petition was time barred.

These facts show that the Commonwealth did not raise
its affirmative limitations defense at the earliest practicable
moment, as we require. There were at least three points at
which the Commonwealth could have easily asserted its
limitations defense, but it failed to do so each time: (1)
when it defended against the petition before the Magistrate
Judge only on exhaustion grounds; (2) when it defended
against the petition before the District Court only on
exhaustion grounds; and (3) when it withdrew its
exhaustion defense before this Court without asserting any
alternative legal grounds upon which the District Court's
order could have been affirmed.

The Commonwealth waited until after the Magistrate
Judge had granted Robinson's motion to amend his petition
before finally asserting its limitations defense-- over one
and a half years after Robinson`s petition was first filed.
This was hardly the earliest practicable moment. It is not
simply the passage of one and a half years that makes the
Commonwealth's defense untimely, but it is the fact that

                               15
court proceedings were on-going during that time where
the Commonwealth was presented with numerous
opportunities to raise its limitations defense, and it failed to
do so each time. The Commonwealth did not raise its
affirmative limitations defense at the earliest practicable
moment; therefore, we hold that it waived that defense.

III.

In sum, and for the above reasons, we hold that the
Commonwealth waived its limitations defense to Robinson's
habeas petition. Therefore, we will reverse the District
Court's order dismissing Robinson's petition and will
remand for further proceedings not inconsistent with this
opinion and judgment.

                               16
SLOVITER, Circuit Judge, dissenting.

I am pleased to join most of Judge Nygaard's fine opinion
for the majority. He writes persuasively that a defense of
the statute of limitations may be waived by a state
defendant and that the statute of limitations for a habeas
petition is a defense that can be waived by the state if not
promptly raised at the earliest practicable moment.

I part company with my colleagues when they hold that
the Commonwealth waived its statute of limitations defense
because it had previously challenged Robinson's habeas
petition as an impermissible second or successive petition.
I am unpersuaded that as a general rule a habeas
defendant may not preliminarily raise a successivity
challenge without losing the opportunity to raise the
defense of statute of limitations. I believe that AEDPA
places the defense of successivity on a different level than
affirmative defenses, such as statute of limitations.

Moreover, even if we were ordinarily to put the
successivity challenge on the same plane as the other
defenses, I believe that in the circumstances of this case,
the Commonwealth should not be held to have waived the
statute of limitations defense when it sought to address as
a preliminary matter the successive nature of the petition.

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 was 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. Rep. No. 104-518, at 111 (1996). Unless the court of
appeals grants such permission, the district court may not
consider his or her second or successive petition.

                               17
Review of the language of S 2244(b)(3)(A) makes apparent
the threshold nature of the inquiry into successivity. The
statute provides:

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

I do not agree with the majority that there is no
significance to the section's introduction to this
requirement with the word "before." No other defense is
accompanied by this statutory imperative, and therefore the
statutory structure gives priority to the successivity
challenge. The majority agrees that S 2244(b)(3)(A)
establishes a priority between a successivity defense and a
limitations defense, which limits the habeas petitioner and
the district court. Maj. Typescript Op. at 13. It reconciles
this with its holding that the limitations defense is waived
because it was not raised at the same time as the
successivity defense by stating that the statute"does not
limit in any way the Commonwealth or a court of appeals."
Maj. Typescript Op. at 13. The majority reasons that"the
Commonwealth could have raised its limitations defense in
the District Court along with its successivity defense." Maj.
Typescript Op. at 13. That is not the way I understand the
process to work.

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. Neither the district court nor the government has
the authority to permit the consideration of a successive
petition in the district court without prior approval from
this court:

       [O]nly this court may authorize the commencement of
       a second or successive petition. . . . From the district

                                18
       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
       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
       the government.

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

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. As has been explained:

       AEDPA's prior approval provision allocates subject-
       matter jurisdiction to the court of appeals by stripping
       the district court of jurisdiction over a second or
       successive habeas petition unless and until the court
       of appeals has decreed that it may go forward. This
       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.

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
(2d Cir. 1997)), aff'd 248 F.3d 1131 (3d Cir. 2000)
(unpublished). Defenses such as the statute of limitations
would be premature, particularly since successivity is
reasonably treated as an issue of subject matter
jurisdiction. See Spivey v. State Bd. of Pardons & Paroles,
No. 02-10416, 2002 U.S. App. LEXIS 976, at *5 (11th Cir.
Jan. 24, 2002) (finding 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.

                               19
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) (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);
Pratt, 129 F.3d at 57 (same).

I find similarly unpersuasive the majority's suggestion
that the Commonwealth's failure to raise its statute of
limitations defense in this court constituted a waiver. I do
not suggest that a court of appeals would not consider the
statute of limitations defense in deciding whether to grant
permission to file a successive habeas, but I know of no
rule, nor does the majority cite one, that requires the
Commonwealth to raise it at the appellate level. The rules
governing raising of affirmative defenses apply only to
pleadings in the district court. Moreover, it is not the
practice of this court to consider and determine a defense
that had not been considered in the first instance by the
district court.

The majority also finds an equitable reason for its
decision that the Commonwealth waived the statute of
limitations defense. It refers to the lengthy period Robinson
has waited for the court to consider the merits of his
habeas petition, and places that responsibility on the
Commonwealth. However, under the circumstances here, I
do not believe the Commonwealth was unreasonable in
challenging Robinson's habeas petition as successive.

Robinson's initial federal habeas petition that was filed in
1991 (before AEDPA) was dismissed in the District Court
for procedural default, and this court denied his request for
the issuance of a certificate of probable cause because of
his failure to exhaust state remedies. Thus, when Robinson

                               20
filed another federal habeas petition in 1998, the
Commonwealth argued in the District Court that the
petition was a second petition under AEDPA which should
not have been submitted to the District Court without an
order from this court. The District Court agreed and
dismissed the petition. Robinson appealed, and this court
ordered the Commonwealth to show cause why the District
Court's dismissal should not be reversed in light of Christy
v. Horn, 115 F.3d 201 (3d Cir. 1997), the decision of this
court holding that dismissals of habeas petitions for failure
to exhaust state claims are not dismissals on the merits
and do not render a subsequent petition second or
successive under the statute.

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 or not the petition would be allowed
under the successivity rules, there would have been no
reason for the Commonwealth, as the majority suggests, to
raise an alternate ground to uphold the dismissal, which
might require the development of a record. The scope of
review in the court of appeals upon 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 limited its response to the issue
of successivity.

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." App. at 17. 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 successivity was
disposed of, the Commonwealth could then move beyond

                               21
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) came into effect. Because the
Commonwealth raised the statute of limitations in its first
pleading before the District Court on remand, I do not
believe it has waived this defense. Therefore, I respectfully
dissent.

A True Copy:
Teste:

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

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