On Appeal from the United States District Court for the District of Delaware (D.C. No. 95-cr-00068) District Judge: Honorable Sue L. Robinson On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 96-cr-00005-3) District Judge: Honorable Sylvia H. Rambo
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge *fn1
Reargued En Banc February 23, 2005
This en banc court is presented with two cases consolidated on appeal. In the first case, Herbert Bendolph appeals from an order of the District Court which dismissed his motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 ("§ 2255 motion") as untimely. In the second case, Julio Otero appeals from an order of the District Court denying him appointed counsel for an ineffectiveness of counsel evidentiary hearing held pursuant to his § 2255 motion. The District Courts had jurisdiction over these matters pursuant to 28 §§ U.S.C. 1331 and 2255. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2255.
Both cases raise issues concerning whether, under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), courts may raise the timeliness of § 2255 motions sua sponte, and, if so, under what circumstances. Neither case falls within the summary dismissal period of Rule 4 of the Rules Governing Section 2255 Cases for the United States District Courts ("Rule 4 period") because in both cases the government has filed answers that did not raise the AEDPA statute of limitations as a defense.
We asked the parties and amici *fn2 to brief four main issues.
First, may the government waive the AEDPA statute of limitations as a defense? Second, may a district court raise it sua sponte ? Third, if so, at what stages in a habeas case may a district court raise the limitations issue? Fourth, may a district court still raise the issue even if the government concedes waiver?
For the reasons discussed herein, we answer the first, second, and fourth issues in the affirmative. As to the third, we answer by concluding that (i) during the Rule 4 period, after giving notice and an opportunity to respond, *fn3 courts may raise the AEDPA statute of limitations issue sua sponte without analysis of prejudice; and (ii) after the Rule 4 period has ended, courts may continue to raise the AEDPA statute of limitations issue sua sponte, but only after providing, consistent with our prior decisions in Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002), and Long v. Wilson, 393 F.3d 390 (3d Cir. 2004), notice, an opportunity to respond, and an analysis of prejudice.
Accordingly, we will affirm the District Court's order in Bendolph. In Otero, we will reverse and remand to the District Court, with instructions to the District Court that it has discretion to raise the AEDPA limitations issue sua sponte.
The relevant facts of these cases may be summarized as follows. A jury in the United States District Court for the District of Delaware convicted Herbert Bendolph of being a felon in possession of a firearm. We affirmed his conviction, 116 F.3d 470, entering judgment on May 5, 1997. The Delaware Federal Defender, acting as Bendolph's counsel, then filed a petition with the Supreme Court of the United States for a writ of certiorari on August 25, 1997. Under Supreme Court Rule 13.1, which requires the filing of such petitions within 90 days of judgment, Bendolph's petition was untimely. The Clerk of the Supreme Court was unaware of this, however, because someone involved in the filing of the petition impermissibly altered the date of this Court's judgment. On the copy filed with the Supreme Court, someone had typed the number "27" over the "5" in the judgment date of May 5, 1997. As a result, the Clerk of the Supreme Court mistakenly believed the petition for certiorari was timely.*fn4
A year later, on October 18, 1998, Bendolph filed a pro se motion under 28 U.S.C. § 2255. This too was untimely: Bendolph was obligated under the AEDPA's one-year statute of limitations to have filed his motion by August 4, 1997, one year from the date on which the 90 day period to file a petition for certiorari had ended. See U.S. Supr. Ct. R. 13; Kapral v. United States, 166 F.3d 565, 575, 577 (3d Cir. 1999) (holding that a judgment may become "final" in the context of §§ 2254 and 2255 when "the date on which the defendant's time for filing a timely petition for certiorari review expires").*fn5 Two weeks after Bendolph filed his § 2255 motion, the District Court ordered the government to file an answer. It did so on December 17, 1998, and did not raise the AEDPA limitations defense. *fn6 Eight months later, the District Judge retired, and the matter was reassigned to another District Judge.
One year later, on August 24, 2000,*fn7 the District Court entered an order suggesting the case was untimely under our decision in Kapral, 166 F.3d at 575-77, given that Bendolph had not timely filed a petition for certiorari by August 4, 1997, or 90 days after our May 5, 1997 judgment. In its August 24, 2000 order, the District Court identified the reasons why the case appeared to be time-barred, invited the parties to brief the issue, and set a deadline of September 21, 2000 for Bendolph to respond to the District Court's analysis. Bendolph filed a three-page memorandum almost two weeks before that deadline, on September 8, 2000. The government responded on October 5, 2000, agreeing with the District Court that the case was time-barred. The District Court subsequently dismissed Bendolph's § 2255 motion as untimely on January 3, 2001. Now, on appeal, Bendolph argues the District Court lacked the authority to raise the AEDPA limitations period sua sponte because the government had waived the defense by not raising it in its answer.*fn8
In the second case, Julio Otero pled guilty to operating a continuing criminal enterprise in violation of 21 U.S.C. § 848(a). On May 27, 1998, the United States District Court for the Middle District of Pennsylvania sentenced him to life imprisonment. In accordance with his plea agreement, Otero did not appeal his conviction. On June 25, 2001, Otero filed a pro se § 2255 motion challenging the validity of his sentence on several grounds, including ineffective assistance of counsel. The government filed its answer on September 17, 2001. It did not raise the AEDPA's statute of limitations as a defense. *fn9
The District Court initially denied all of Otero's claims except his ineffective assistance of counsel claim, for which an evidentiary hearing was scheduled. The District Court did not appoint counsel to represent Otero at that hearing, and denied his claim on the merits. Otero argues on appeal that (i) the District Court erred in failing to appoint counsel for him at his evidentiary hearing, and (ii) neither the District Court nor the government may raise the AEDPA statute of limitations issue on remand because the government has waived the defense.*fn10
We turn first to the District Court's decision not to provide counsel to Otero at his ineffective assistance of counsel evidentiary hearing. Rule 8(c) of the Rules Governing Section 2255 Cases requires that "[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel... [as an indigent]." The appointment of counsel is clearly mandatory for an indigent petitioner. See United States v. Iasiello, 166 F.3d 212, 213-14 (3d Cir. 1999) (vacating judgment and remanding to district court where district court conducted a § 2255 evidentiary hearing without appointing counsel to indigent movant). "[H]arm to [a movant] must be presumed when his statutory right to counsel is thus abridged." Id. at 214. The government does not dispute that, as a federal inmate since 1996, Otero is likely indigent; nor does it attempt to rebut the presumption of prejudice. Accordingly, we must reverse the District Court's dismissal of Otero's ineffective assistance of counsel claim. The record is unclear as to whether Otero is indigent and the District Court should inquire as to his status. Should he qualify as indigent, he must be afforded counsel for his ineffective assistance of counsel claim.
We now turn to the four main issues, supra, before us in these consolidated appeals. The analysis of the AEDPA statute of limitations issue, which in these two cases involves undisputed facts, is subject to plenary review. See, e.g., Long, 393 F.3d at 396 (citing Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000)); s ee also Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000).
As we observed in Long, our analysis necessarily begins with Robinson, 313 F.3d 128. Our prior discussion of that case in Long is thorough, see 393 F.3d at 396-98, and needs no further elaboration here. In Long we encapsulated Robinson 's holdings as follows:
[F]irst... because the statute of limitations is not jurisdictional in nature, see Miller v. New Jersey State Dep't of Corr., 145 F.3d , 617-18 [(3d Cir. 1998)], the state may waive the defense.... [W]e then considered whether Federal Rule of Civil Procedure 8(c) requires that a defendant plead... a statute of limitations in its answer.... We explained: "Parties are generally required to assert affirmative defenses early in litigation, so... prejudice may be avoided and judicial resources may be conserved. Habeas proceedings are no exception."... We further emphasized: "The purpose... is to avoid surprise and undue prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed."....
[We then] held that "a limitations defense does not necessarily have to be raised in the answer[,]" [but] must be raised "as early as practicable" thereafter.... What the earliest practicable or possible or feasible moment might be in another case... we necessarily left open.
Long, 393 F.3d at 397-98 (quoting Robinson, 313 F.3d at 134-37). Consistent with these holdings, we then analyzed in Long a Magistrate Judge's report and recommendation that flagged the limitations issue sua sponte. We used the analytical framework provided by Federal Rule of Civil Procedure 15(a) because the government had subsequently filed, in response, an "endors[ment] [of] the Magistrate Judge's view that the habeas petition was untimely." Long, 393 F.3d at 395. Under Rule 15(a), we articulated a standard for judging prejudice in the AEDPA statute of limitations context as follows:
[Our prior cases including Robinson ] counsel that, whether a habeas petitioner has been prejudiced by the assertion of the AEDPA statute of limitations defense after an answer has been filed is the ultimate issue, and that prejudice turns on such factors as how late in the proceedings the defense was raised, whether the petitioner had an opportunity to respond, and whether the respondent acted in bad faith.... Delay is related to prejudice but was not a problem here, and inadvertence does not equal bad faith.
Id. at 401 (internal citations omitted). We held that Long was not prejudiced by the government's delay in raising the limitations defense, which it had done through its express endorsement of the Magistrate Judge's analysis of the timeliness issue. We then concluded that the District Court did not abuse its discretion by construing the government's filing as an amendment to its answer. Id. at 401.
Addressing the Magistrate Judge's sua sponte flagging of the limitations issue, we said:
Our answer to [this issue] was foreshadowed by Banks v. Horn, 271 F.3d 527, 533 n.4 (3d Cir. 2001), rev'd on other grounds, 536 U.S. 266, 122 S.Ct. 2147, 1153 L.Ed.2d 301 (2002).... In a footnote... we expressed the view that a court of appeals could address the AEDPA statute of limitations defense sua sponte even if the habeas respondent had waived the issue on appeal. We wrote:
"Even if not raised, we believe we could consider the issue sua sponte.... The Court has the power to notice a 'plain error' though it is not assigned or specified.... In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings."......
Thus we observed prior to Robinson that the AEDPA statute of limitation is an important issue, the raising of which may not ...