In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3303

ANTHONY WEDDINGTON,

Petitioner-Appellant,

v.

DUSHAN ZATECKY, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division.

No. 1:11-cv-00184-TWP-TAB — Tanya Walton Pratt, Judge.

ARGUED FEBRUARY 12, 2013 — DECIDED AUGUST 1, 2013 

Before RIPPLE and TINDER, Circuit Judges, and ZAGEL,

District Judge.*

The Honorable James B. Zagel, of the United States District Court for the *

(continued...)
2 No. 11-3303

TINDER, Circuit Judge. Anthony Weddington was convicted

in Indiana state court in two separate trials of a total of four

counts of rape, two counts of criminal confinement, one count

of criminal deviate conduct, and one count of robbery. He was

sentenced to a total of 133 years’ imprisonment. He petitioned

for a writ of habeas corpus, claiming that he was denied

effective assistance of trial and appellate counsel in his second

trial. The district court concluded that the petition was barred

by the statute of limitations, that Weddington procedurally

defaulted his claims, and that he was not entitled to relief;

therefore, the court denied his petition. For the reasons that

follow, we vacate the dismissal of the petition and remand to

the district court for further proceedings.

I. Background

In 2002, the State of Indiana charged Weddington with four

counts of rape, four counts of criminal deviate conduct, and

two counts of criminal confinement. The charges were severed

into two separate trials. The Honorable Tanya Walton Pratt

(then a Marion Superior Court Judge) presided over

Weddington’s first trial in September 2003 (Cause No. 49G01-

0202-FB-029155). A jury found him guilty of rape, robbery, and

criminal confinement, and Judge Pratt sentenced him to 73

years’ imprisonment. Weddington appealed; the Indiana Court

of Appeals affirmed. 

 (...continued) *

Northern District of Illinois, sitting by designation.
No. 11-3303 3

The remaining charges against Weddington were tried in a

March 4, 2005 bench trial before Marion Superior Court Judge

Robert Altice (Cause No. 49G02-0202-FB-23310). Prior to late

February of that year, Weddington had been proceeding pro se

with stand-by counsel. At the end of that month, however,

Weddington sought appointment of counsel and, on March 2,

2005, stand-by counsel was appointed defense counsel.Defense

counsel called no witnesses at trial. Judge Altice found

Weddington guilty of three counts of rape, one count of

criminal deviate conduct, and one count of criminal confinement, and sentenced him to 60 years’ imprisonment to run

consecutive to the sentence imposed in the 2003 case.

Weddington appealed his 2005 convictions and the Indiana

Court of Appeals affirmed. He sought transfer to the Indiana

Supreme Court, which was denied. 

In 2007, Weddington filed a state petition for post-conviction relief raising claims challenging his 2005 convictions,

claiming, inter alia, ineffective assistance of trial and appellate

counsel. The state trial court held evidentiary hearings on the

petition and on May 12, 2009, the court denied post-conviction

relief. Weddington did not appeal. 

On February 4, 2011, Weddington filed a pro se habeas

petition under 28 U.S.C. § 2254, challenging his 2005 convictions. The petition claims that the trial court erred in denying

a motion to suppress all evidence from a January 29, 2002

traffic stop. It also raises ineffective-assistance-of-counsel

claimsdirectedat trial counsel and appellate counsel, including

one related to a fourth amendment claim. And Weddington

maintains that his wife would have testified at trial and given

him an alibi to the crimes charged, yet trial counsel failed to
4 No. 11-3303

contact her or any other witness, even though counsel was told

that she wanted to testify. In his petition, Weddington asserts

that he was prevented from appealing the denial of his postconviction motion because the prison administration “confiscated all of his legal work, legal books, and pens and pencils

for over a year.” Petition 8. He asserts that the one-year

limitations period is no bar to his petition “because all of [his]

legal paper work, legal books, and even his legal mail was

confiscated by the officials at the prison...; for well over a year

these items were taken. Even [his] pens and pencils were

taken.” Id. at 14. Weddington declared under penalty of

perjury that the assertions in his petition are true and correct,

and he signed his petition February 2, 2011. 

Inanattachment to his federal habeas petition, Weddington

further states that when he was sent to segregation, “all of his

personal property and belongings were taken from him and

placed inside of a plastic gray box by the institution officials.”

Id. at 17-18. He also claims that “[he] was not allowed to

retrieve any of his legal paperwork...for well over a year,” id.

at 18, and that even though he was released from disciplinary

segregation in June 2010, the property that had been put in the

gray box was not returned to him until August 2010. Furthermore, when the property was returned, “basically all” of his

legal books and paperwork,including hishabeas petition, were

missing. Id. at 19. Weddington separately signed and dated the

attachment, but without a separate indication that the attachment, too, was signed under penalty of perjury. 

Weddington’s federal habeas case was assigned to district

judge Tanya Walton Pratt (who had been appointed to the

United States District Courtfor the Southern District of Indiana
No. 11-3303 5

as of June 2010). On September 19, 2011, Judge Pratt, as a

federal district judge, denied the petition as barred by the

statute of limitations and procedural default without addressing the merits of the claims. Weddington did not raise any

issue in the district court with respect to Judge Pratt’s participation in his federal habeas case. 

This court grantedWeddington a certificate of appealability

upon finding a substantial showing of the denial of the right to

effective assistance of trial and appellate counsel. We directed

the parties to brief the timeliness of the petition and whether

Weddington procedurally defaulted on his federal habeas

claims. We also instructed them to address whether recusal of

the district judge was required.

II. Discussion

A federal court can grant a writ of habeas corpus if a

petitioner demonstrates that he is in custody in violation of

clearly established federal law. 28 U.S.C. § 2254(a). We review

a district court’s denial of a habeas petition de novo. Resendez

v. Smith, 692 F.3d 623, 626 (7th Cir. 2012). In this case, we first

consider whether a district court judge must recuse herself

from participating in a § 2254 petition where the judge, in her

former capacity as a state court judge, presided over the

defendant’s conviction for state criminal charges that were

closely related to the state criminal charges underlying the

federal habeas action. Then we consider the state’s arguments

that Weddington failed to clear procedural hurdles erected by

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA): the one-year statute of limitations and the

exhaustion-of-state-remedies requirement.
6 No. 11-3303

A. Recusal

Our first task is to decide whether the district judge should

have recused herself. Federal law provides that “[a]ny...judge

...shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. §

455(a). The purpose of the statute “is to preserve the appearance of impartiality.” United States v. Johnson, 680 F.3d 966, 979

(7th Cir.), cert. denied, 133 S. Ct. 672 (2012). It is important to a

litigant and to the fairness and public reputation of judicial

proceedings that review of a case be conducted by “a judge

other than the judge who presided over the case at trial.”

Clemmons v. Wolfe, 377 F.3d 322, 325 (3d Cir. 2004). Indeed, 28

U.S.C. § 47 provides: “No judge shall hear or determine an

appeal from the decision of a case or issue tried by him.” This

statute is not strictly applicable here because it applies to

appeals, not federal habeas petitions. But the habeas petition is

similar to appellate review. In a federal habeas action, the

petitioner has “the opportunity to have a federal court review

the state proceedings for constitutional infirmities. In this

respect, there is no reason why the same rules governing

independence, conflict of interest, or appearance of partiality

should not apply.” Clemmons, 377 F.3d at 325-26; see also Russell

v. Lane, 890 F.2d 947, 948 (7th Cir. 1989) (noting that a federal

habeas proceeding “is addressed to a judge...who had no

emotional commitment to vindicating state justice as administered in the petitioner’s case”). 

The state argues that a § 455(a) claim of bias is not preserved for appeal unless the complaining party seeks a writ of

mandamus. See, e.g., Johnson, 680 F.3d at 980 (“Because a party
No. 11-3303 7

waives his § 455(a) recusal argument by failing to petition for

a writ of mandamus, it follows that he also waives it by failing

altogether to raise it at the district court level.” (quotation and

citation omitted)); United States v. Diekemper, 604 F.3d 345, 351

(7th Cir. 2010) (“[R]ecusal under § 455(a) must be sought

immediately through a writ of mandamus or it is waived.”).

Yet, at the same time and not as an alternative argument, the

state also asserts that we review Weddington’s claim that

Judge Pratt should have recused herself for plain error. Thus,

the state may have waived the waiver argument. But regardless of whether Weddington waived this claim for purposes of

the prior proceedings below, as we shall see, further proceedings in the district court are necessary. We review his claim

with that in mind. 

Clemmons is a closely analogous case. There, the district

judge dismissed the habeas petition as untimely, and that same

judge had been the state court judge who had presided over

the petitioner’s criminal trial. 377 F.3d at 324. The Third Circuit

reviewed for plain error because the petitioner did not object

to the judge’s failure to recuse in the habeas action. The court

stated that “the error complained of in this case—a federal

judge sitting in review of the propriety of the state proceedings

conducted by that judge—seriously affects the fairness and

public reputation of the judicial proceedings.” Id. at 325. The

court found that the district judge’s failure to recuse “has

created an appearance of impropriety that runs the risk of

undermining the public’s confidence in the judicial process.”

Id. at 328 (quotation and citation omitted). Clemmons established a broad rule requiring that each federal district judge

“recuse himself or herself from participating in a 28 U.S.C. §
8 No. 11-3303

2254 habeas corpus petition of a defendant raising any issue

concerning the trial or conviction over which the judge

presided in his or her former capacity as a state court judge.”

Id. at 329. Similarly, in Russell, we concluded that the petitioner

“was entitled to have his habeas corpus petition heard by a

judge who had not participated in his conviction.” 890 F.2d at

948 (judge who dismissed habeas petition had been a member

of the state court of appeals panel that had affirmed petitioner’s conviction on direct appeal). 

In arguing that Judge Pratt was not required to recuse

herself, the state relies on Daniels v. Wilson, No. 10-4562, 2012

WL 6176999 (3d Cir. Dec. 12, 2012) (unpublished). In that case,

the state court judge who had issued a warrant for Daniels’

arrest when he failed to appear for a preliminary hearing

ended up being the district judge who denied Daniels’ federal

habeas petition. In deciding that the judge was not required to

recuse himself based on his involvement in the state court

proceedings, the court considered Clemmons’s broad rule and

the Supreme Court’s instruction that when considering the

need for recusal under § 455(a), courts “cannot ignore the

factual realities” of the case under review. Id. at *3. The court

concluded that the district judge was not required to recuse

himself because he “did not preside over any trial or conviction

of Daniels” and only issued an arrest warrant when Daniels

failed to appear at a preliminary hearing. Id. Further, the court

reasoned that the warrant “did not concern the substantive

charges” but was nondiscretionary and ministerial, and the

habeas petition raised no issue regarding the warrant or any

conduct by that judge. Id. Thus, the district judge was not

“tasked with reviewing his past state court rulings in a federal
No. 11-3303 9

habeas case.” Id. at *4 (quoting Clemmons, 377 F.3d at 328). The

court concluded that a reasonable person would not doubt the

judge’s impartialityin deciding the habeas petition, and recusal

was not required. Id. 

Although Clemmons is not directly on point, Weddington’s

case is closer to Clemmons than to Daniels. Judge Pratt did not

preside over the trial and conviction in the 2005 case, but she

did preside over the trial and conviction in the 2003 case. In

that capacity, she denied a motion to suppress regarding the

traffic stop that led to Weddington’s arrest and the investigation that led to both criminal cases. That same traffic stop was

also challenged in a motion to suppress in the 2005 case. Thus,

the same facts and circumstances, and perhaps legal arguments, were involved in Judge Altice’s denial of the suppression motion in the 2005 case as in Judge Pratt’s denial of the

suppression motion in the 2003 case. Indeed, the state court of

appeals’ decision on appeal of the 2005 case refers to its

affirmance of Weddington’s conviction in the 2003 case, noting

that the latter “challenged the propriety of the same traffic stop

and subsequent detention.” Weddington v. State of Indiana,

Mem. Decision 9 n.9 (Ind. Ct. App. April 18, 2006) (Short App.

124 n.9). 

Furthermore, one of the ineffective-assistance claims raised

in the habeas petition involves trial and appellate counsels’

alleged failures with respect to a fourth amendment claim

concerning the traffic stop that underlies both cases. Thus, in

presiding over the habeas petition, Judge Pratt effectively

would be reviewing an issue and matter over which she had

already passed judgment as a state court judge. In addition, we

note that while still on the state trial court in 2005, after the
10 No. 11-3303

2003 conviction was affirmed on appeal, see Weddington v.

State, No. 49A02-0311-CR-1004, 815 N.E.2d 1064 (Ind. Ct. App.

2004), Judge Pratt recused herself from further proceedings in

the 2003 case. Though the reason for the state court recusal is

not disclosed in the record, Weddington does not suggest that

there is a basis for recusal in this habeas case otherthan the fact

that Judge Prattruled on his fourth amendment claim while on

the state court. (As an aside, we also note that following Judge

Pratt’s state recusal, Weddington’s 2003 case was reassigned to

the Honorable Jane E.Magnus-Stinson, then a Marion Superior

Court Judge. Judge Magnus-Stinson became a federal district

judge in 2010 and, like Judge Pratt, now sits on the United

States District Court for the Southern District of Indiana.) 

Even though the federal habeas petition does not directly

involve the 2003 criminal trial and convictions before Judge

Pratt, the criminal charges tried in the 2003 case were closely

related to the charges in the 2005 case underlying the habeas

petition. The state suggests that Judge Pratt’s dismissal of the

petition on procedural grounds makes a difference. It is true

that one has to dig pretty deeply into a long petition (169

grounds) to find the few references to the suppression ruling

in the 2003 case. So, too, the timeliness and exhaustion concerns are much more apparent from a quick look at the petition

and the relevant dates. It is certainly conceivable that Judge

Pratt’s dismissal of the petition was done without any awareness that the claims being asserted raised any issue concerning

a trial over which she had presided in her capacity as a state

court judge. It is also true that Weddington did nothing to call

the potential recusal issue to Judge Pratt’s attention. 
No. 11-3303 11

However, § 455(a) requires a judge to disqualify herself “in

any proceeding in which [her] impartiality might reasonably be

questioned” (emphasis added); this requirement is not limited

to particular issues within that proceeding. The statute aims to

avoid the appearance of impartiality, which does not necessarily

depend on the particular issues on which a decision turns.

Review of the habeas petition on the merits may require Judge

Pratt to review the 2005 proceedings with respect to a suppression motion aimed at the same stop and search as the one

involved in the suppression motion on which she ruled in the

2003 case. In our view, this could seriously affect the fairness

and public reputation of the judicial proceedings and create an

appearance of impropriety.

As explained below, this case has to be remanded for

further proceedings. Thus, unlike our cases in which it was too

late to remedy an appearance of bias because the district judge

was done with the case, see, e.g., In re Bergeron, 636 F.3d 882,

883-84 (7th Cir. 2011) (concluding that a party was not entitled

to writ of mandamus ordering the judge’s removal where “it’s

too late for us to order the judge removed from the case,

because she’s through with it”); Diekemper, 604 F.3d at 352

(observing that “[o]nce the proceedings at issue are concluded,

a post hoc motion for recusal will do little to remedy any

appearance of bias that was present” and “any remedy to the

appearance of bias that may have existed has long since

evaporated”), the appearance of bias can be remedied here

before further proceedings are conducted in the district court.

A simple application of our Circuit Rule 36 will assure that this

case will be assigned to a different district judge on remand.
12 No. 11-3303

B. Procedural Hurdles

1. Limitations Period

The state argues, and the district court found, that

Weddington’s federal habeas petition is barred because it was

filed outside the limitations period. A petitioner must seek a

federal writ of habeas corpus within one year of the date on

which the state court judgment becomes final, though the

limitations period is tolled while a “properly filed” application

forpost-conviction review is “pending” in state court. 28U.S.C.

§ 2244(d)(1)(A), (d)(2); Villanueva v. Anglin, Nos. 12-1559 & 12-

2177, 2013 WL 2992119, at *3 (7th Cir. June 17, 2013). An

untimely petition “foreclose[s] habeas relief.” Id. at *5.

AEDPA’s limitations period, however, is subject to equitable

tolling, if the petitioner shows “‘(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way.’” Holland v. Florida, 130 S. Ct. 2549,

2563 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). 

Weddington’s convictions were final September 7, 2006,

when the time to seek certiorari in the Supreme Court expired.

On February 12, 2007, 158 days later, he filed a pro se petition

for post-conviction relief in state court. (The district court and

respondent erred in finding that he filed his petition 127 days

later.) The limitations period was tolled while that petition was

pending. On May 12, 2009, the trial court denied his postconviction petition, and the federal habeas limitations period

ran on Monday, December 9, 2009. See Fed. R. Civ. P. 6(a).

Weddington’s petition was signed and deemed filed on
No. 11-3303 13

February 2, 2011. Thus, his federal habeas petition was untimely. 

According to Weddington, the district court erred in

dismissing his petition because the limitations period should

have been equitably tolled by the state’s confiscation of his

legal papers. The state responds that the record fails to support

his contention. Its argument against equitable tolling, on

appeal as in the district court, is based solely on its challenge

as to whether Weddington was prohibited access to his legal

materials while he was housed in disciplinary segregation.

“The intentional confiscation of a prisoner’s habeas corpus

petition and related legal papers by a corrections officer is

‘extraordinary’ as a matter of law.” Valverde v. Stinson, 224 F.3d

129, 133 (2d Cir. 2000) (holding that a corrections officer’s

confiscation of a prisoner’s draft habeas petition and related

legal papers can justify equitable tolling of the one-year

limitations period); see also United States v. Gabaldon, 522 F.3d

1121, 1124–27 (10th Cir. 2008) (holding that prison’s complete

confiscation of petitioner's legal materials six weeks before

filing deadline and its holding of papers until after limitations

period expired constituted an extraordinary circumstance for

purposes of equitable tolling). 

The state maintains that Weddington offers only bald

assertions in his petition to support his claim, cites no evidence,

and disregards contrary evidence. However, in his habeas

petition, Weddington asserts that when he was placed in

disciplinary segregation the prison official confiscated all of his

legal paperwork (including his petition for habeas corpus),

legal books, pens and pencils and he was not allowed to

retrieve them for over one year. The petition is declared and
14 No. 11-3303

stated under penalty of perjury and thus is considered an

affidavit. See Lafuente v. United States, 617 F.3d 944, 946 (7th Cir.

2010) (concluding that a § 2255 motion sworn under penalty of

perjury was considered an affidavit); Kafo v. United States, 467

F.3d 1063, 1068 (7th Cir. 2006) (the allegations in a motion

signed under penalty of perjury “become evidence”); Paters v.

United States, 159 F.3d 1043, 1052 (7th Cir. 1998) (“when a

petition contains language to the effect of...‘I declare (or

certify, verify, or state) under penalty of perjury that the

foregoing is true and correct,’ such petition, and the declaration(s) submitted along with it, are tantamount to affidavits.”

(footnote omitted)).

To be sure, the state has presented the affidavit of Tom

Richardson, Correctional Case Manager at Pendleton where

Weddington was housed, contradicting Weddington’s assertions. Richardson states that Weddington was never prohibited

from accessing his legal materials or the facility’s legal reference materials while he was in disciplinary segregation. But the

competing evidence simply creates a factual dispute. As for the

facility’s operational procedures which provide for access to

legal materialsby inmates in disciplinary segregation, the mere

existence of these procedures does not compel a finding that

they were followed in this case. Given Weddington’s statements to the contrary, the procedures themselves cannot

establish that he was in fact provided his legal materials.

The record presents factual issues that must be resolved

before a decision can be made regarding equitable tolling, and

it appears that an evidentiary hearing is necessary to resolve

the fact issues. The district court erred in failing to consider
No. 11-3303 15

whether the limitations period was equitably tolled by the

state’s alleged confiscation of Weddington’s legal papers.

2. Exhaustion

The state argues that Weddington has procedurally

defaulted his habeas claims and that he cannot overcome his

default. A petitioner must raise his constitutional claims in

state court “to alert fairly the state court to the federal nature

of the claim and to permit that court to adjudicate squarely that

federal issue.” Villanueva, 2013 WL 2992119, at *5 (quotation

and citation omitted). The failure to present fairly each habeas

claim in state court “leads to a default of the claim[s]” and

“bar[s] the federal court from reviewing the claim[s’] merits.”

Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

The district judge determined that Weddington procedurally defaulted his federal habeas claims by failing to appeal the

state trial court’s denial of post-conviction relief. The state trial

court issued its findings of fact and conclusions of law on May

12, 2009, when Weddington already was in disciplinary

segregation. Weddington did not appeal from the trial court’s

denial of his petition for post-conviction relief and therefore

defaulted the claims raised therein. 

However, a district court may excuse procedural default if

the petitioner “can demonstrate either (a) cause for the default

and prejudice (i.e., the errors worked to the petitioner’s ‘actual

and substantial disadvantage,’); or (b) that failure to consider

his claim would result in a fundamental miscarriage of justice

(i.e., a claim of actual innocence).” Conner v. McBride, 375 F.3d

643, 648 (7th Cir. 2004) (quoting United States v. Frady, 456 U.S.
16 No. 11-3303

152, 170 (1982)) (emphasis added). Cause is defined as “an

objective factor, external to the defense, that impeded the

defendant’s efforts to raise the claim in an earlier proceeding.

Prejudice means an error which so infected the entire trial that

the resulting conviction violates due process.” McKee, 598 F.3d

at 382 (quotationand citation omitted). Procedural default is an

affirmative defense and can be waived. Eichwedel v. Chandler,

696 F.3d 660, 669 (7th Cir. 2012). 

If Weddington’s claims are believed, by the time the state

trial court enteredjudgment on his post-conviction petition, his

habeas petition and legal papers had been taken from him and

he had no access to them. This lack of access he alleges continued for more than one year—well beyond the 30 days allowed

for appeal. See Ind. R. App. P. 9(A)(1). And if Weddington’s

claims are credited, the confiscation of his legal materials can

establish cause for his procedural default. Cf. Valverde, 224 F.3d

at 134 (“[A] person is plainly ‘prevented’ from filing a pleading

for some period of time if he is deprived of the sole copy of

that pleading.”). 

In arguing that the procedural default could not be excused, the state asserts that Weddington has not shown cause

or a fundamental miscarriage of justice; the state has not

addressed prejudice. See Resp’t’s Br. 24 (“Weddington cannot

excuse his procedural default. Weddington does not show

cause for the procedural default or that the failure to consider

the claims will result in a fundamental miscarriage of justice.”);

id. at 28 (noting that defaulted habeas claims may be reviewed

if a petitioner establishes cause and prejudice and arguing that

“Weddington has not shown ca[u]se ”). However,
No. 11-3303 17

Weddington’s procedural default may be excused if he shows

either “cause and prejudice” or a “fundamental miscarriage of

justice” if his claims are not considered. (On appeal he argues

that he can avail himself of both means of excusing his default.)

Likewise, the state failed to raise or develop any argument

about the prejudice part of the “cause and prejudice” standard

in the district court. Instead, it argued only that Weddington

had not shown cause: It attempted to refute his claims about

the confiscation of and access to his legal materials. It may be

that Weddington can show prejudice given his allegations of

counsel’s ineffectiveness in failing to investigate and call his

wife as an alibi witness.

We are, of course, aware that in this court the state has

argued that Weddington’s claims of ineffective assistance of

counsel lack merit. And we are well aware that Strickland

claims have a prejudice component. See Strickland v. Washington, 466 U.S. 668, 694-95 (1984). But the state also has argued

that the “merits of Weddington’s claims are not properly

before the Court.” Resp’t’s Br. 29. And more importantly, the

state never argued in the district court that Weddington could

not show prejudice. Thus, this is not a case in which we could

affirm on the ground that prejudice has not been shown. Cf.

Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (stating

that “we can affirm on any ground supported in the record, so

long as that ground was adequately addressed in the district

court and the nonmoving party had an opportunity to contest

the issue” (quotation and citation omitted)). As with equitable

tolling, further findings are necessary to determine whether

Weddington can overcome his procedural default. Therefore,
18 No. 11-3303

we must remand for further findings, including an evidentiary

hearing, if necessary.

III. Conclusion

We accordingly VACATE the denial of Weddington’s habeas

petition and remand for further proceedings consistent with

this opinion. Circuit Rule 36 shall apply on remand.