2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Robinson v. Johnson" (2002). 2002 Decisions. Paper 165.

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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 postconviction 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 timebarred, 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. 

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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. 

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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 

 22