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. e du/thir dc ir c uit_2002/165PRECEDENTIAL

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 act ion brought by a prisoner in state custody. The Commonw ealth1 originally argued that the prisoner's petition was successive
and should therefore be dismissed. The District Cou rt dismissed the petition as successive, and the priso ner appealed. On appeal, the Commonwealth conceded that the petition actually was not successive, but offered n o alternative legal grounds upon which we could have affirmed the District Court's decision. Thus, we re manded. On remand, the Commonwealth argued for the first ti me that the prisoner's petition was barred by the appl icable one-year statute of limitations. The prisoner objec ted to the
untimeliness of the Commonwealth's assertion of its limitations defense, but the District Court dismiss ed 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 w aive its limitations defense, then he is entitled to an evid entiary hearing to determine if the statute of limitations should be equitably tolled because the Commonwealth allegedly

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

2deprived 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 wi ll

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 convi ction and a concurrent aggregate sentence of twenty to th irty-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 denie d Robinson's request for discretionary review. This e nded the
direct review of Robinson's case.

Robinson then filed a pro se petition for collatera l 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 cou rt appointed counsel to represent Robinson, and it subsequently denied his petition for relief. This d enial 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 federa l habeas petition alleging ineffective assistance of trial counsel, insufficiency of evidence, and violation o f the Fourth Amendment. A Magistrate Judge issued a Repor t

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

3. The Post Conviction Hearing Act has since been s ubstantially
amended and is now titled the Post Conviction Relie f Act ("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541 et seq. (2000).

3and Recommendation which concluded that Robinson's

failure to pursue discretionary review in the Penns ylvania Supreme Court of the ineffective assistance of coun sel claim constituted a procedural default. The Distric t Court adopted the Magistrate's Report and Recommendation, concluding that the ineffectiveness claim had been procedurally defaulted. See Order, Robinson v. Vaug hn, 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. 91-21 07 (3d Cir. Apr. 8, 1992). Thus, as to the ineffectiveness claim, Robinson's first federal habeas petition was dismis sed so
that he could exhaust his remedies in the Commonwea lth.

Robinson returned to the Commonwealth courts and fi led a second petition under the PCRA, again alleging in effective assistance of his trial counsel and now also allegi ng the ineffectiveness of his appellate counsel. This appl ication 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 den ial. See Commonwealth v. Robinson, No. 03093 Phila. 1994
, 679 A.2d 257 (Pa. Super. 1996) (table). Robinson pe titioned 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 gro und for habeas relief. His petition also reasserts as groun ds for habeas relief the insufficiency of the evidence aga inst him and the allegedly unlawful seizure of evidence in v iolation of

the Fourth Amendment.

Robinson's petition was referred to a Magistrate Ju dge who ordered a responsive pleading including "specif ic and
detailed answers and a brief or memorandum of law i n support thereof" from the Office of the District At torney of

4Philadelphia on November 10, 1998. On January 27, 1 999,

the District Attorney filed a letter pleading which argued that Robinson's petition should be transferred to t he Court of Appeals for the Third Circuit because it was a s uccessive petition. The District Attorney contended that the denial of Robinson's first federal habeas petition in 1991 pr ecluded 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 ("AE DPA"), 28 U.S.C. SS 2241 et seq. The Magistrate Judge recommended denying Robinson's second federal habea s petition, and on April 26, 1999, the District Court accepted the Magistrate Judge's recommendation and denied th e petition.

Robinson appealed that decision, and we ordered the District Attorney to show cause why the order dismi ssing the petition should not be summarily reversed in li ght of our decision in Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997), where we held that when a federal habeas pet ition 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 fo r authorization to file a federal habeas action, but may file his petition in the district court as if it were hi s first such filing. On December 23, 1999, the District Attorney filed a letter brief conceding that Robinson's second feder al habeas petition indeed was not successive. The District At torney did not present any alternative legal grounds for a ffirming the District Court's conclusion. Thus, we accepted the Commonwealth's concession and summarily reversed an d

remanded.

On remand, Robinson filed a motion to strike his or iginal petition and for permission to file an amended peti tion which the Magistrate Judge granted. The District At torney moved for reconsideration of the order permitting R obinson to amend his petition. Then on March 30, 2000, the District Attorney asserted that Robinson's second federal ha beas petition was time-barred by the limitations provisi on of the AEDPA, 28 U.S.C. S 2244(d). Robinson, in return, ar gued
that the Commonwealth's statute of limitations defe nse was untimely.

5The Magistrate Judge vacated his initial order gran ting

Robinson leave to amend his petition, and instead substituted a Report and Recommendation adopting th e 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 su bject to a state procedural default rule and did not toll the period of limitations; (2) therefore, Robinson's second feder al habeas petition was required to be filed on or before Apri l 23, 1997; (3) alternatively, if the third state habeas petiti on had been "properly filed," then Robinson's second federal ha beas petition should have been filed on or before Septem ber 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 tolle d.

The District Court adopted the Magistrate Judge's R eport and Recommendation over Robinson's renewed objectio n that the Commonwealth had waived its limitations de fense and Robinson's further proffer regarding the effort s 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 f or a State to waive its AEDPA limitations defense, an is sue which we have not yet specifically addressed. The s tatute of

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4. Although Robinson moved in the Court of Appeals for a certificate of appealability, it was the District Court which gran ted 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).

6limitations provision of the AEDPA provides, in per tinent

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 t he conclusion of direct review or the expiratio n of the time for seeking such review.

28 U.S.C. S 2244(d)(1)(A). The District Court dismi ssed Robinson's habeas petition because it was filed bey ond this 1-year period of limitation.

The law of this Circuit clearly holds that the limi tations provision of the AEDPA is not jurisdictional in nat ure. 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 eq uitable 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 vie w the AEDPA limitations period as jurisdictional) have he ld that a limitations defense may be waived by a State defend ant in a habeas proceeding. See, e.g., Green v. United Sta tes, 260 F.3d 78, 85 (2d Cir. 2001) (finding that "the gover nment [had] expressly waive[d] its [AEDPA] statute of lim itations 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 governmen t 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 t hat government waiver is possible); Scott v. Johnson , 227 F.3d 260 (5th Cir. 2000) (finding that the government di d not waive its AEDPA statute of limitations defense, thu s implying that government waiver is possible); Samue l v. Duncan, 92 F.3d 1194 (9th Cir. 1996) (table) (unpub lished opinion) (AEDPA statute of limitations defense can be waived).

7We 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 affirmativ e defenses early in litigation, so they may be ruled upon, prejudice may be avoided, and judicial resources ma y be conserved. Habeas proceedings are no exception. Rul e 11 of the Rules Governing Section 2254 Cases in the Unite d States District Courts (the "Habeas Rules") makes t he Federal Rules of Civil Procedure applicable to habe as petitions to the extent they are not inconsistent w ith 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 prece ding pleading, a party shall set forth affirmativ ely . . . statute of limitations . . . and any other m atter constituting an avoidance or affirmative def ense.

Fed. R. Civ. P. 8(c).

The purpose of requiring the defendant to plead ava ilable affirmative defenses in his answer is to avoid surp rise and undue prejudice by providing the plaintiff with not ice 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. 19 95) ("The purpose of Rule 8(c) is to give the court and the other parties fair warning that a particular line of defe nse will be pursued."); Grant v. Preferred Research, Inc. , 885 F.2d 795, 797 (11th Cir. 1989) ("The Supreme Court has held t hat 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

8defendant intends to present a defense in the natur e of an

avoidance.") (citations omitted); Perez v. United S tates, 830 F.2d 54, 57 (5th Cir. 1987) ("The central purpose o f 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 plaint iff with an unexpected defense.' ").

Technically, the Federal Rules of Civil Procedure r equire that affirmative defenses be pleaded in the answer. Rule 12(b) states that "[e]very defense . . . shall be a sserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of th e pleader be made by motion . . . ." The defenses listed in R ule 12(b) do not include limitations defenses. Thus, a limita tions 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") p ermits a limitations defense to be raised by a motion under Rule 12(b)(6), but only if "the time alleged in the stat ement of a
claim shows that the cause of action has not been b rought
within the statute of limitations."5 Hanna v. U.S. Veterans'

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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 pu rsuant to Fed. R. Civ. P. 8(c), but that the defense could be raised in ot her ways. See also Williams v. Murdoch, 330 F.2d 745, 749 (3d Cir. 196 4) (affirmative defense of res judicata may be raised by a motion t o dismiss or by an answer); Cito v. Bridgewater Twp. Police Dep't , 89 2 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.' " (cita tions omitted)); Davis

v. Grusemeyer, 996 F.2d 617, 623 (3d Cir. 1993) (quoti ng Cito); Oshiver v. Levin, Fishbeign, Sedran & Berman, 38 F.3d 1380, 13 85 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 contex t of Rule 12(b)(6) motion to dismiss, an exception is made where the c omplaint 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. 1 997) (affirmative defense must be apparent on the face of the complai nt to be subject to a Rule 12(b)(6) motion to dismiss).

9Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975). " If the

bar is not apparent on the face of the complaint, t hen it may not afford the basis for a dismissal of the com plaint under Rule 12(b)(6)." Bethel v. Jendoco Constr. Cor p., 570 F.2d 1168, 1174 (3d Cir. 1978).

The Commonwealth argues, and we agree, that a limitations defense does not necessarily have to b e raised in
the answer. But it does not follow that a limitatio ns defense can be raised at any time. Consistent with the purp ose 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 st atute 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.") (citation s omitted); Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 14 16 (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 o f limitations defense to AEDPA claim by not raising i t until after a jury verdict in its motion to alter or amen d judgment).

Courts routinely consider the timeliness of a limit ations defense. Although some have adhered to the strict l anguage of Rule 8(c), which requires that a limitations def ense be raised in the answer, others have considered the st age 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 defe nse when they did not raise it until late in the proceedings . In Venters, the defendants did not include their statu te 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 t hat the failure to plead an affirmative defense can be harmless,

10notwithstanding the terms of Rule 8(c)," id. , but found that

in this case the defendants had deprived the plaint iff of fair notice and a reasonable opportunity to respond to t heir affirmative defense by not raising it until "the pa rties had largely completed an exhaustive discovery process, and the scheduled trial date was only a month away." Id. Se e also Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 115 5 (2d Cir. 1968) ("[W]here the party seeking to amend [th e answer] wishes to raise a defense of limitations lo ng after the answer was first filed, a court would be remiss if it did not carefully balance the effects of such action fo r it is manifest that risk of substantial prejudice increas es in proportion to the length of defendant's delay in se eking the amendment. . . . In sum, the party wishing to raise the defense is obliged to plead the Statute of Limitati ons at the earliest possible moment."); Hayden v. Ford Motor C o., 497 F.2d 1292, 1295 (6th Cir. 1974) ("Whatever the moti ves behind the plaintiff's and defendant's pleading str ategy, to
allow the defendant to raise the bar of the statute of limitations after so long a delay [thirty months] a nd 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 1 603 v. Transue & Williams Corp., 879 F.2d 1388, 1396 n.3 ( 6th Cir. 1989) (rejecting limitations defense as untime ly when
first raised in a motion to amend the district cour t's judgment over a year after the suit was filed).

We have even found a limitations defense to be waiv ed where it was pleaded in the answer, but where it wa s not pursued before trial. In Bradford-White Corp. v. Er nst & Whinney, 872 F.2d 1153 (3d Cir. 1989), the defendan t
raised the statute of limitations defense in its an swer, but "it did not file a motion or present argument befor e the
district court on the statute of limitations issue at any time before or at the trial." Id. Then, following a tria l and jury verdict, the defendant attempted to raise its statu te of limitations defense in post-trial motions. Id. at 1154. We did not permit this, finding that "it would be gros sly 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 11 61.

All of these cases reflect, in one form or another, attempts by the courts to keep the consideration of

11affirmative defenses consistent with at least the p urpose, if

not necessarily the language, of Rule 8(c). Affirma tive defenses must be raised as early as practicable, no t only to avoid prejudice, but also to promote judicial econo my. If a party has a successful affirmative defense, raising that defense as early as possible, and permitting a cour t 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 def enses in other contexts, and, if not pleaded in the answe r, they must be raised at the earliest practicable moment

thereafter.

The Commonwealth argues that the question of whethe r Robinson's petition was successive was "logically a nd conceptually prior" to the question of whether the petition was time-barred. In support, the Commonwealth point s out that if Robinson's petition were successive, then n o matter what it contained nor whether or not it was timely, the petition could have been dismissed. We disagree. Al though the Commonwealth is correct that if the petition we re successive then it could be disposed of no matter i f it were timely or not, the Commonwealth fails to recognize that the converse is equally true -- that is, if the petitio n were timebarred, it did not matter whether the petition were successive or not. There is no logical or conceptua l priority
to the limitations defense.

The Commonwealth took this argument one step furthe r during oral argument by pointing to statutory langu age which supports its position that successivity defen ses should be addressed before limitations defenses. Th is is not an argument that the successivity defense is logica lly 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 meri t to this argument, but even accepting it as true does not sa ve the

Commonwealth's defense.

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

12Before a second or successive application pe rmitted by

this section is filed in the district court, the applicant shall move in the appropriate court of appea ls for an order authorizing the district court to cons ider the application.

28 U.S.C. S 2244(b)(3)(A). The Commonwealth placed great reliance during oral argument upon the statute's us e of the word "before." Because a successive petition may no t be filed in the district court "before" the habeas pet itioner 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 arg ument still fails for two reasons: one textual and one eq uitable.

First, the language of S 2244(b)(3)(A) places a lim itation upon habeas petitioners, and, by implication, upon district courts. That subsection does not permit a habeas pe titioner to file a successive petition in a district court w ithout first obtaining an authorizing order from a court of appe als. Since a successive petition may not be filed in the district court without such an order, the statute also impli edly 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 no thing whatsoever in S 2244(b)(3)(A) which prohibits the Commonwealth from complying with the standard pract ice of asserting all affirmative defenses early in liti gation. The
Commonwealth could have raised its limitations defe nse in the District Court along with its successivity defe nse; nothing in the statute prevented it from doing so. Furthermore, nothing in S 2244(b)(3)(A) limits a co urt of appeals from considering a limitations defense as a n alternative legal ground supporting a District Cour t'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 hav e affirmed the District Court's order dismissing Robi nson's habeas petition. Doing so would not have contravene d

13S 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 a ll 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 o f the Commonwealth's mistake. Robinson filed a habeas pet ition. It was not successive, but the Commonwealth argued that it was. The District Court agreed with the Commonwe alth, and Robinson was forced to appeal to vindicate his position. When asked on appeal to show cause why th e District Court's order should not be summarily reve rsed, the Commonwealth suddenly saw the light and realize d that Robinson's petition actually was not successiv e. The

Commonwealth had erred. After the case was remanded
, and after Robinson had been granted permission to f ile an amended complaint, the Commonwealth finally raised its limitations defense. This appeal ensued. Meanwhile, Robinson has been waiting in prison. If the Commonw ealth had successfully raised its limitations defense in a timely manner, Robinson's equitable tolling argument may h ave been addressed, and if he were successful, there ma y well have been by now a hearing on the merits of Robinso n's petition. We think it would be patently unfair to p enalize Robinson for the Commonwealth's error. A rule requi ring
the Commonwealth to raise all its affirmative defen ses at the earliest practicable moment will prevent unfair ness of
this kind.

C.

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

1. Robinson filed this habeas action on Sept ember 25,

1998.

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

14Robinson's petition was successive and shoul d not

be heard by the District Court, but the Commonwealth did not argue in the alternativ e that the petition was time-barred.

3. On April 26, 1999, the District Court acc epted the Commonwealth's argument and denied the petit ion
as successive.

4. Robinson appealed to this Court.

5. On December 23, 1999, the Commonwealth conceded in its response before this Court t hat 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 petit ion.

7. On March 30, 2000, in a motion to reconsi der the order granting permission to amend, the
Commonwealth asserted for the first time tha t Robinson's petition was time barred.

These facts show that the Commonwealth did not rais e its affirmative limitations defense at the earliest practicable moment, as we require. There were at least three po ints at which the Commonwealth could have easily asserted i ts limitations defense, but it failed to do so each ti me: (1) when it defended against the petition before the Ma gistrate Judge only on exhaustion grounds; (2) when it defen ded against the petition before the District Court only on exhaustion grounds; and (3) when it withdrew its
exhaustion defense before this Court without assert ing any alternative legal grounds upon which the District C ourt's
order could have been affirmed.

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

15court proceedings were on-going during that time wh ere

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 pra cticable moment; therefore, we hold that it waived that defe nse.

III.

In sum, and for the above reasons, we hold that the
Commonwealth waived its limitations defense to Robi nson's habeas petition. Therefore, we will reverse the Dis trict Court's order dismissing Robinson's petition and wi ll remand for further proceedings not inconsistent wit h this opinion and judgment.

16SLOVITER, Circuit Judge, dissenting.

I am pleased to join most of Judge Nygaard's fine o pinion for the majority. He writes persuasively that a def ense 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 sta te if not promptly raised at the earliest practicable moment.

I part company with my colleagues when they hold th at
the Commonwealth waived its statute of limitations defense because it had previously challenged Robinson's hab eas petition as an impermissible second or successive p etition. I am unpersuaded that as a general rule a habeas defendant may not preliminarily raise a successivit y challenge without losing the opportunity to raise t he
defense of statute of limitations. I believe that A EDPA places the defense of successivity on a different l evel than affirmative defenses, such as statute of limitation s.

Moreover, even if we were ordinarily to put the successivity challenge on the same plane as the oth er defenses, I believe that in the circumstances of th is case,
the Commonwealth should not be held to have waived the statute of limitations defense when it sought to ad dress as a preliminary matter the successive nature of the p etition.

Second or successive petitions for habeas relief ha ve 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 i n 1996 strengthened these obstacles by creating a special screening process for the consideration of second o r successive petitions, often referred to as a "gatek eeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (19 96). Section 2244(b) provides both procedural and substa ntive limits on the filing of second or successive petiti ons. One of the most significant changes was the requirement th at the applicant must secure approval from the court of ap peals 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 co urt of appeals grants such permission, the district court may not consider his or her second or successive petition.

17Review of the language of S 2244(b)(3)(A) makes app arent

the threshold nature of the inquiry into successivi ty. The statute provides:

Before a second or successive application pe rmitted by this section is filed in the district court, the applicant shall move in the appropriate court of appea ls for an order authorizing the district court to cons ider 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 defens e is accompanied by this statutory imperative, and there fore the statutory structure gives priority to the successiv ity challenge. The majority agrees that S 2244(b)(3)(A) establishes a priority between a successivity defen se and a limitations defense, which limits the habeas petiti oner and the district court. Maj. Typescript Op. at 13. It r econciles 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"do es not limit in any way the Commonwealth or a court of app eals." Maj. Typescript Op. at 13. The majority reasons tha t"the
Commonwealth could have raised its limitations defe nse in the District Court along with its successivity defe nse." Maj. Typescript Op. at 13. That is not the way I underst and the process to work.

When a second or successive habeas petition is erroneously filed in a district court without the p ermission of a court of appeals, the district court's only op tion is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. S 1631. The statute limits th e 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 governm ent has the authority to permit the consideration of a succ essive petition in the district court without prior approv al from
this court:

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

18court's perspective, it is an allocation of subject-matter

jurisdiction to the court of appeals. A dist rict court must dismiss a second or successive petition , without awaiting any response from the government, u nless the court of appeals has given approval for its filing. Even an explicit consent by the government to beg inning the
case in the district court would be ineffect ual; the power to authorize its commencement does not reside
in either the district court or the executiv e 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 cor pus proceed in the district court. As has been explaine d:

AEDPA's prior approval provision allocates s ubject- matter jurisdiction to the court of appeals by stripping the district court of jurisdiction over a se cond or successive habeas petition unless and until the court of appeals has decreed that it may go forwar d. This statutory directive means that a district co urt, faced with an unapproved second or successive habe as petition, must either dismiss it or transfer it to the appropriate court of appeals.

United States v. Enigwe, No. 92-00257, 1998 U.S. Di st. 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 limi tations 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 198 3 claim was the "functional equivalent" of a second habeas petition, and "he did not first apply with this Court for per mission to file a second or successive petition as required by 28 U.S.C.

19S 2244(b)(3)(A), the district court lacked jurisdic tion 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" f rom the court of appeals before filing his third habeas pet ition in the district court, the "district court lacked subj ect 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 di strict 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 e ntertain the motion" because petitioner had not obtained an orde r authorizing such a petition from the court of appea ls); Pratt, 129 F.3d at 57 (same).

I find similarly unpersuasive the majority's sugges tion
that the Commonwealth's failure to raise its statut e of
limitations defense in this court constituted a wai ver. I do not suggest that a court of appeals would not consi der 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. Th e rules governing raising of affirmative defenses apply onl y to pleadings in the district court. Moreover, it is no t 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 o f limitations defense. It refers to the lengthy perio d 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 successiv e.

Robinson's initial federal habeas petition that was filed in 1991 (before AEDPA) was dismissed in the District C ourt for procedural default, and this court denied his r equest for the issuance of a certificate of probable cause bec ause of his failure to exhaust state remedies. Thus, when R obinson

20filed another federal habeas petition in 1998, the

Commonwealth argued in the District Court that the petition was a second petition under AEDPA which sh ould
not have been submitted to the District Court witho ut an order from this court. The District Court agreed an d dismissed the petition. Robinson appealed, and this court ordered the Commonwealth to show cause why the Dist rict Court's dismissal should not be reversed in light o f Christy v. Horn, 115 F.3d 201 (3d Cir. 1997), the decision of this court holding that dismissals of habeas petitions f or failure
to exhaust state claims are not dismissals on the m erits 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 hab eas petition was successive. As proceedings were direct ed 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 sugges ts, to raise an alternate ground to uphold the dismissal, which might require the development of a record. The scop e of review in the court of appeals upon a request for authorization to file a second or successive petiti on is limited to whether the applicant has made a prima f acie 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 sco pe of review, the Commonwealth limited its response to th e issue of successivity.

After the Commonwealth conceded that Robinson's petition was not successive in light of the develop ment of the law, this court remanded the petition to the Di strict 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 p rior petition has been dismissed without prejudice for f ailure 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 successivit y was disposed of, the Commonwealth could then move beyon d

21that threshold issue to present defenses to the pet ition

such as the statute of limitations. It was only at this point that the normal rules regarding the waiver of defen ses under Fed. R. Civ. P. 8(c) came into effect. Becaus e the
Commonwealth raised the statute of limitations in i ts first pleading before the District Court on remand, I do not believe it has waived this defense. Therefore, I re spectfully
dissent.

A True Copy:

Teste:

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

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