UNPUBLISHED

 UNITED STATES COURT OF APPEALS 

 FOR THE FOURTH CIRCUIT 

 No. 06-6677

 

WALI FARAD MUHAMMAD BILAL, 

 Petitioner - Appellant, 

versus 

STATE OF NORTH CAROLINA, 

 Respondent - Appellee. 

 

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Graham C. Mullen, Senior 

District Judge. (1:06-cv-00082) 

 

Argued: May 13, 2008 Decided: July 18, 2008 

Before MICHAEL and DUNCAN, Circuit Judges, and Jackson L. KISER, 

Senior United States District Judge for the Western District of 

Virginia, sitting by designation. 

Vacated and remanded by unpublished per curiam opinion. 

ARGUED: Ryan Stafford Johnson, Third Year Law Student, UNIVERSITY 

OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic, 

Charlottesville, Virginia; Neal Lawrence Walters, UNIVERSITY OF 

VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic, 

Charlottesville, Virginia, for Appellant. Mary Carla Hollis, NORTH 

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for 

Appellee. ON BRIEF: Amy L. Woolard, Third Year Law Student, 

UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic, 
2 

Charlottesville, Virginia, for Appellant. Roy Cooper, Attorney 

General of North Carolina, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
3 

PER CURIAM: 

After a series of failed attempts at obtaining relief in North 

Carolina state court, convicted felon Wali Farad Muhammad Bilal 

(“Bilal”) filed a pro se petition in federal court for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. He did so by 

completing the standard form habeas petition (“form petition”) 

adopted by the Judicial Conference for the United States and 

provided to him by the district court. One question on the form 

petition instructs would-be petitioners to provide reasons why the 

statute of limitations does not bar their petition if their 

judgment of conviction became final more than one year prior to the 

instant filing. Bilal answered simply, “N/A.” Without further 

notice to Bilal, the district court dismissed the petition sua 

sponte for untimeliness. 

On appeal, Bilal argues that he was not given sufficient 

notice and an opportunity to be heard prior to the dismissal as 

required by our precedent in Hill v. Braxton, 277 F.3d 701 (4th 

Cir. 2002). On the specific facts before us, we agree. We 

therefore vacate and remand for the district court to allow Bilal 

to clarify or correct his response.1

 

 1

We express no opinion on the merits of Bilal’s argument that 

equitable tolling or a statutory exception excuses his month-long 

delay in filing his petition. 
4 

I. 

Following a jury trial in North Carolina Superior Court, Bilal 

was convicted on October 12, 2001 of two counts of robbery with a 

dangerous weapon, two counts of second-degree kidnapping, one count 

of simple assault, and one count of assault inflicting serious 

bodily injury. He was later sentenced to 394 months’ imprisonment, 

and is currently serving out that sentence in a North Carolina 

prison. 

Since his conviction, Bilal has filed a number of appeals and 

petitions within the North Carolina state court system, all of 

which have failed.2

 Finally, on February 23, 2006, he filed this 

habeas corpus petition pursuant to 28 U.S.C. § 2254 with the 

District Court for the Western District of North Carolina, 

challenging, inter alia, the sufficiency of the evidence to support 

his convictions and alleging that both his trial and appellate 

 2

Because the timeliness of Bilal’s petition is at issue, we 

briefly recount the wending path of Bilal’s post-conviction 

challenges. First, Bilal appealed his convictions and sentence to 

the North Carolina Court of Appeals, which affirmed both on 

December 3, 2002. He then filed a petition for writ of certiorari 

with the North Carolina Supreme Court, which was denied on August 

21, 2003. Bilal next began state post-conviction proceedings by 

filing a pro se Motion for Appropriate Relief (“MAR”) on September 

30, 2004, which was denied on January 31, 2005. On March 14, 2005, 

Bilal filed a petition for a writ of certiorari with the North 

Carolina Court of Appeals, which was denied on March 28, 2005. On 

April 26, 2005, he filed a second petition for a writ of certiorari 

seeking discretionary review by the North Carolina Supreme Court. 

This petition was denied on December 1, 2005. 
5 

counsel provided him with ineffective assistance. He initiated 

this collateral attack by filling out the form petition.3

The form petition consists of questions designed to elicit the 

salient facts underlying a petitioner’s challenge to his 

confinement. Some of the questions are relatively straightforward, 

calling for a simple “yes” or “no” answer or soliciting easily 

ascertained facts such as dates and names. Others are more openended. The question giving rise to this appeal, question 18, is of 

the latter variety. Question 18 reads: 

TIMELINESS OF PETITION: If your judgment of conviction 

became final over one year ago, you must explain why the 

one-year statute of limitations as contained in 28 U.S.C. 

§ 2244(d) does not bar your petition. 

J.A. 26. The questions ends with a footnote setting forth the text 

of 28 U.S.C. § 2244(d)(1)-(2).4

 Bilal wrote only “N/A” on the 

 3

The form petition currently in effect was adopted by the 

Judicial Conference in 2003. See Report of the Proceedings of the 

Judicial Conference of the United States 36 (Sept. 23, 2003), 

available at http://www.uscourts.gov/judconf/sept03proc.pdf; see 

also 5B West’s Federal Forms, District Courts, Criminal § 8959 

(2007) (adopting the current version of the form petition). 

4

Section 2244(d) provides: 

(1) A 1-year period of limitation shall apply to an 

application for a writ of habeas corpus by a person in 

custody pursuant to the judgment of a State court. The 

limitation period shall run from the latest of-- 

(A) the date on which the judgment became final by the 

conclusion of direct review or the expiration of the time 

for seeking such review; 

(B) the date on which the impediment to filing an 

application created by State action in violation of the 
6 

first of twenty-two lines provided to answer the question. His 

petition was otherwise complete. 

 Upon receipt of the petition, the district court concluded on 

the face of the filing that Bilal’s § 2254 claims were barred by 

the one-year limitations period imposed by § 2244(d),5

 dismissing 

the petition sua sponte without first discussing with Bilal the 

limitations period or any applicable tolling provisions. In a 

 

Constitution or laws of the United States is removed, if 

the applicant was prevented from filing by such State 

action; 

(C) the date on which the constitutional right asserted 

was initially recognized by the Supreme Court, if the 

right has been newly recognized by the Supreme Court and 

made retroactively applicable to cases on collateral 

review; or 

(D) the date on which the factual predicate of the claim 

or claims presented could have been discovered through 

the exercise of due diligence. 

(2) The time during which a properly filed application 

for State post-conviction or other collateral review with 

respect to the pertinent judgment or claim is pending 

shall not be counted toward any period of limitation 

under this subsection. 

28 U.S.C. § 2244(d). 

5

The court determined that the limitations period began to run 

when Bilal’s “conviction became final on November 19, 2003. [It] 

then ran for 316 days until he filed his MAR on September 30, 

2004.” J.A. 62. Next, the period was tolled while Bilal’s 

post-conviction proceedings were pending, but began again on 

December 1, 2005 when his petition for writ of certiorari was 

denied by the North Carolina Supreme Court. The period finally 

expired 49 days later, on January 19, 2006. Bilal’s habeas 

petition was not filed until February 23, 2006. 
7 

footnote at the end of the order, the district court acknowledged 

that, under this court’s holding in Hill v. Braxton, it was 

required to warn Bilal, prior to sua sponte dismissal of the 

petition, “‘that the case is subject to dismissal . . . absent a 

sufficient explanation’” for its seeming untimeliness. J.A. 62 n.2 

(quoting Hill, 277 F.3d at 706). The district court determined, 

however, that Bilal’s case was distinguishable from Hill because 

Bilal “had an opportunity in his form petition to address the 

timeliness of his petition and declined to do so.” Id. Thus, the 

court determined that “it need not provide [him] with any 

additional opportunities to address such matters.” Id.

Bilal filed a pro se notice of appeal, arguing that the 

district court “dismissed [his] federal habeas corpus [petition] 

without affording [him] notice or an opportunity to be heard . . . 

[and that] had he been permitted to [respond], he could have 

demonstrated that either a statutory exception or equitable tolling 

principles protected his § 2254 petition from dismissal.” J.A. 65. 

This court subsequently granted a certificate of appealability and 

appointed Bilal counsel to assist in the appeal. 

II. 

We review de novo the legal question of whether Bilal was 

afforded adequate notice and an opportunity to be heard prior to 
8 

the sua sponte dismissal of his § 2254 habeas petition. See United 

States v. Hopkins, 268 F.3d 222, 224 (4th Cir. 2001). 

A. 

We begin our analysis with a discussion of this court’s 

decisions in Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002), and 

McMillan v. Jarvis, 332 F.3d 244 (4th Cir. 2003), upon which both 

parties extensively rely. 

Hill presented the question of whether a federal habeas court 

had the power to dismiss sua sponte a pro se petition on the ground 

that it was not filed within the one-year limitations period 

established by 28 U.S.C. § 2244(d). This court began with the 

general principle that “the one-year limitation period contained in 

§ 2244(d) is an affirmative defense that the state bears the burden 

of asserting.” Hill, 277 F.3d at 705. Nonetheless, this court 

held that because § 2254 habeas actions, more so than ordinary 

civil actions, “implicate considerations of comity, federalism, and 

judicial efficiency,” a district court has the authority to raise 

certain affirmative defenses sua sponte in this context. Id. Such 

“discretion to raise an affirmative defense to a § 2254 petition 

sua sponte and then dismiss the petition based on that affirmative 

defense is not completely unfettered,” this court cautioned, and 

should not be “automatic.” Id. at 706 (internal quotations 

omitted); cf. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th 

Cir. 2006) (“[W]e have recognized that a statute of limitations 
9 

defense may properly be raised sua sponte by a district court in 

certain narrow circumstances.” (emphasis added)). Instead, in each 

instance, a court should balance the federal interests listed above 

against “the petitioner’s substantial interest in justice.” Id.

(internal quotations omitted). 

When balancing those interests in Hill, this court reasoned: 

Because the statute of limitations is an affirmative 

defense, a habeas petitioner is not likely to plead 

detailed facts to refute this defense in the initial 

§ 2254 petition. . . . Any facts relating to [statutory 

or equitable tolling] are [therefore] unlikely to be part 

of the record . . . . Thus, when a federal habeas court, 

acting sua sponte, dismisses a § 2254 action as untimely 

without notice to or input from the petitioner, the court 

cannot be certain that there are no circumstances that 

would cause the petition to be timely. 

Id. at 706-07. This court noted that this problem was compounded 

because a pro se petitioner like Hill was unlikely to anticipate 

the affirmative defense of untimeliness, especially because the 

form petition in use at the time did not direct petitioners to 

address the issue. See id. at 707 (“[N]otice and an opportunity to 

respond are particularly appropriate when the prisoner is pro se . 

. . and the long-standing practice is to construe pro se pleadings 

liberally.”). This court therefore held that, 

when a federal habeas court, prior to trial, perceives a 

pro se § 2254 petition to be untimely and the state has 

not filed a motion to dismiss based on the one-year 

limitations period, the court must warn the prisoner that 

the case is subject to dismissal pursuant to § 2244(d) 

absent a sufficient explanation, unless it is 

indisputably clear from the materials presented to the 

district court that the petition is untimely and cannot 
10 

be salvaged by equitable tolling principles or any of the 

circumstances enumerated in § 2244(d)(1). 

Id. (emphasis added); see also Day v. McDonough, 547 U.S. 198, 210 

(2006) (“Of course, before acting on its own initiative, a court 

must accord the parties fair notice and an opportunity to present 

their positions.”). 

The following year, this court issued its decision in McMillan 

v. Jarvis, 332 F.3d 244 (4th Cir. 2003), which recognized that the 

right to notice and an opportunity to be heard extends to counseled

habeas petitioners. In McMillan, this court found no reasonable 

basis for distinguishing between pro se and counseled petitioners, 

because “[i]n either case, facts supporting a statutory exception 

to the one-year limitation period . . . or equitable tolling, are 

not likely to be facts included in the habeas record before the 

district court. And, in neither case will we require the 

petitioner to anticipate a potential statute of limitations 

defense.” Id. at 249 (emphasis added). 

This court explained that counsel in a habeas case is entitled 

to the “legitimate strategic option of not pleading facts in 

anticipation of a statute of limitations defense and [instead] 

forcing the respondent to bear its own burden of identifying and 

raising potentially applicable affirmative defenses.” Id. at 248. 

Because counsel could rightfully choose to omit such facts, the 

primary concern in Hill remained: a district court that dismisses 

a petition as untimely “based solely on the petition” and “‘without 
11 

notice to or input from the petitioner . . . cannot be certain that 

there are no circumstances that would cause the petition to be 

timely.’” Id. at 249-50 (quoting Hill, 277 F.3d at 707). 

After Hill and McMillan, and similar decisions by courts in 

other circuits, see, e.g., Acosta v. Artuz, 221 F.3d 117 (2d Cir. 

2000), the United States Judicial Conference adopted the form 

petition at issue in this case, which took effect on December 1, 

2004. Among other changes, the amended form petition added 

question 18 which, as noted above, instructs petitioners to explain 

why the § 2244(d) limitations period does not bar their petition if 

their judgment of conviction became final over one year prior to 

the petition’s filing, setting forth the text of § 2244(d) in a 

footnote. It is the interplay between Hill and McMillan on the one 

hand and the revised form petition on the other, in the context of 

the facts before us, that forms the crux of this appeal. 

B. 

As a habeas petitioner filing in the Western District of North 

Carolina, Bilal was required to “substantially follow” the revised 

form petition.6 He claims that question 18 did not provide him 

with the notice and opportunity to respond required by Hill. He 

 6

According to the Rules Governing § 2254 cases, a habeas 

“petition must substantially follow either [the form petition] or a 

form prescribed by a local district-court rule.” Rules Governing 

Habeas Cases, Rule 2(d), 28 U.S.C. foll. § 2254. The Western 

District of North Carolina requires that pro se petitioners comply 

with the form petition. See Western District of North Carolina Pro 

Se Litigant Guide 15 (2006). 
12 

contends that a contrary finding would oblige petitioners to plead 

facts in anticipation of the affirmative defense of untimeliness, 

an outcome specifically prohibited by this court in both Hill and 

McMillan.7 

The government counters, however, that “[t]he notice contained 

in the new form § 2254 petition addresses the concerns” of this 

court in Hill and McMillan--a petitioner no longer need 

“anticipate” the statute of limitations defense because the form 

puts a petitioner on notice that he must address the timeliness of 

his petition if it is in question. Appellee=s Br. at 5. The 

government argues that question 18 adequately informs a petitioner 

that his petition is subject to dismissal for untimeliness and that 

its inclusion of the text of 28 U.S.C. § 2244(d)--the statute that 

sets forth the one year limitations period applicable to § 2254 

habeas petitions--makes the statutory bar immediately apparent. 

 7

Bilal also notes that while the form petition directs 

petitioners to the statutory tolling provisions in § 2244(d) and 

even includes the text of the statute, it makes no explicit 

reference to the availability of equitable tolling, which may 

revive an untimely petition “where--due to circumstances external 

to the party’s own conduct--it would be unconscionable to enforce 

the limitation against the party.” Hill, 277 F.3d at 704 (internal 

quotations omitted). 

We agree with the government that Hill’s notice requirement is 

not particularly onerous. See Hill, 277 F.3d at 708 (“A 

particularly detailed notice is not necessary nor is a hearing 

necessarily required.”). And, in the ordinary scheme of things, 
13 

the revised form petition probably serves the twin goals of 

achieving increased efficiency for courts and providing notice of 

the need to address the statute of limitations issue to 

petitioners. On these facts, however, the district court 

prematurely pretermitted an inquiry into the facts the form was 

designed to elicit on the basis of a response that can only fairly 

be described as ambiguous. Used in this way, the form seems in 

some tension with Hill in that Bilal was not provided with any 

guidance on the timeliness of his particular petition beyond the 

mere recitation of the statutory text of § 2244(d). The court’s 

failure to clarify Bilal’s confused response is especially 

problematic given the notorious complexity of § 2244(d). See id.

at 708 (citing Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 

1975) (“[B]efore entering summary judgment . . ., the District 

Court, as a bare minimum, should have provided [the pro se party] 

with fair notice of the requirements of the summary judgment rule. 

We stress the need for a form of notice sufficiently understandable 

to one in appellant’s circumstances fairly to apprise him of what 

is required.” (internal quotations omitted) (emphasis added)). 

Applying the statute to Bilal’s petition illustrates the point. 

The one-year limitations period of § 2244(d) begins to run 

from the latest of (a) “the date on which the [petitioner’s] 

judgment became final,” § 2244(d)(1)(A); (b) “the date on which the 

impediment to filing an application created by State action in 
14 

violation of the Constitution or laws of the United States is 

removed, § 2244(d)(1)(B); (c) “the date on which the constitutional 

right asserted was initially recognized by the Supreme Court,” 

§ 2244(d)(1)(C); or (d) “the date on which the factual predicate of 

the claim or claims presented could have been discovered through 

the exercise of due diligence,” § 2244(d)(1)(D). The district 

court here assumed that § 2244(d)(1)(B), § 2244(d)(1)(C), and 

§ 2244(d)(1)(D) were inapplicable to Bilal’s petition; that is, 

that there was no “State action” that impeded Bilal’s filing, that 

Bilal asserted only “constitutional rights” that had long been 

recognized by the Supreme Court, and that the “factual predicate” 

underlying Bilal’s claims was immediately discoverable. Assuming 

arguendo that the district court rightfully discounted these 

alternatives,8

 the limitations period for Bilal’s petition began to 

run on “the date on which [his] judgment became final.” 

§ 2244(d)(1)(A). 

 8

Bilal refutes the district court’s conclusion with respect to 

§ 2244(d)(1)(B), claiming that the district court failed to provide 

him with the form petition in a timely manner. 

Even this prescription presents a moving target, however, 

because a judgment is not “final” until the later of the date on 

which direct review of the petitioner’s case concluded or “the 

expiration of the time for seeking such review.” Id. The last 

stage of direct review is the filing of a petition for writ of 

certiorari with the United States Supreme Court. See Harris v. 
15 

Hutchinson, 209 F.3d 325, 328 n.1 (4th Cir. 2000). Because Bilal 

did not file a petition for writ of certiorari with the Court, his 

judgment of conviction became final when “the time for seeking such 

review” expired. See § 2244(d)(1)(A). According to Supreme Court 

rules, the review period expires ninety days from the denial of a 

petition for writ of certiorari with the highest court in the state 

of conviction. See Sup. Ct. R. 13(1). Thus, Bilal’s limitation 

period began to run on November 19, 2003, ninety days after the 

North Carolina Supreme Court denied his first certiorari petition 

on August 21, 2003. 

Instead of the limitations period expiring one year later on 

November 19, 2004, however, the tolling provision of § 2244(d)(2),9

which pauses the limitation period while review of a properly filed 

petition is pending, stretched the period until January 19, 2006. 

This date--the apparent expiration date of Bilal’s “one year” 

limitation period--is more than four years after Bilal’s date of 

conviction, but only 35 days prior to his filing the petition at 

issue here. 

 9

“The time during which a properly filed application for State 

post-conviction or other collateral review with respect to the 

pertinent judgment or claim is pending shall not be counted toward 

any period of limitation under this subsection.” 28 U.S.C. 

§ 2244(d)(2). 

It is in the context of this complexity that Bilal’s ambiguous 

response must be viewed. Question 18 begins by stating a 

condition: “If your judgment of conviction became final over one 
16 

year ago.” J.A. 26 (emphasis added). It then requires those who 

satisfy the condition to state why § 2244(d) does not bar their 

petition. Bilal responded “N/A,” J.A. 26, or “not applicable,” 

presumably because he thought that he did not satisfy the 

condition. Put differently, Bilal may have thought that his 

“judgment of conviction” did not “bec[o]me final over one year 

ago,” excusing any further explanation of statutory exceptions or 

equitable tolling principles that would cause his petition not to 

be barred by § 2244(d). 

The government interprets Bilal’s response differently, 

contending that Bilal simply refused to answer question 18. It 

would seem, though, that if Bilal were declining to answer the 

question he would simply have left it blank. We think it far more 

likely that Bilal’s cryptic answer spawned from his misapprehension 

of the term “final,” as his counsel suggests, or from a 

misunderstanding of question 18 entirely. Regardless of the reason 

behind it, Bilal’s answer was arguably responsive, if confused, not 

an outright refusal to answer as the government asserts. 

Rather than asking Bilal to expand or clarify his answer, or 

inquiring about any statutory exceptions or applicable equitable 

tolling principles, the district court promptly dismissed his 

petition. It concluded that Bilal “had an opportunity in his form 

petition to address the timeliness of his petition and declined to 

do so.” J.A. 62 (emphasis added). 
17 

 Though we do not fault the district court for relying on the 

form petition in general, we find its response on these facts to be 

out of step with our treatment of pro se petitioners in this and 

other contexts. See Hill, 277 F.3d at 707 (“[N]otice and an 

opportunity to respond are particularly appropriate when the 

prisoner is pro se . . . and the long-standing practice is to 

construe pro se pleadings liberally.”); cf. id. at 708 (“We also 

disagree that Rule 59(e) affords a pro se petitioner . . . an 

adequate opportunity to respond.”); Wright v. Collins, 766 F.2d 

841, 846 (4th Cir. 1985) (“[W]e hold that a pro se litigant must 

receive fair notification of the consequences of [his] failure to 

object . . . before such a procedural default will result in waiver 

of the right of appeal. The notice must be sufficiently 

understandable to one in appellant’s circumstances fairly to 

apprise him of what is required.” (internal quotations omitted) 

(emphasis added)); Carter v. Hutto, 781 F.2d 1028, 1033 (4th Cir. 

1986) (“[W]here . . . the pretrial order did not adequately inform 

[the pro se litigant] of the degree of specificity necessary . . ., 

and whereas [he] had obviously sought to comply, it was incumbent 

on the magistrate to inform [him] of the deficiency of his response 

and afford him the opportunity to cure it.”). Indeed, the very 

instructions accompanying the form petition here inform petitioners 

that if they fail to fill out the form petition properly the 

district court will notify them of the error and afford them an 
18 

opportunity to “submit additional or correct information,” not 

immediately dismiss the petition without further correspondence. 

5B West’s Federal Forms, District Courts, Criminal § 8959 (2007) 

(“If you do not fill out the form properly, you will be asked to 

submit additional or correct information.”). 

We thus find the district court’s sua sponte dismissal of 

Bilal’s petition to be premature. In doing so, we are not 

unsympathetic to the burdens that habeas petitions lade upon our 

district courts and consequently limit our holding to the narrow 

circumstances of this case. Here, the district court was faced 

with Bilal’s apparent confusion regarding the timeliness of his 

petition and an absence of evidence that he intentionally evaded 

the issue. Furthermore, the state had not yet had the opportunity 

to assert the expiration of the limitations period, an affirmative 

defense that it ordinarily bears the burden of raising. In this 

context, we read Hill and McMillan as requiring the district court 

to afford Bilal, a pro se petitioner, an opportunity to put forth a 

statutory exception or equitable tolling principle that might 

explain the relatively brief period by which his petition was late. 

See Day, 547 U.S. at 210 (requiring that parties be afforded “fair

notice and an opportunity to present their positions” prior to sua 

sponte dismissal (emphasis added)). Otherwise the district court’s 

order would once again raise the concerns present in Hill and 

McMillan: a district court dismissing a habeas petition without 
19 

first “be[ing] certain that there [we]re no circumstances that 

would cause the petition to be timely.” Hill, 277 F.3d at 707. 

III. 

For the foregoing reasons the judgment of the district court 

is 

VACATED AND REMANDED.