2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-29-2004

Long v. Wilson

Precedential or Non-Precedential: Precedential

Docket No. 03-2898

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 03-2898

________________

CURTIS LONG,

 Appellant

v.

HARRY WILSON, SUPERINTENDENT

___________________________________

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. No. 02-cv-00728)

District Judge: Honorable Arthur J. Schwab

__________________________

Argued October 26, 2004

Before: SCIRICA, Chief Judge, FISHER and BECKER, 

Circuit Judges

(Filed December 29, 2004)

JEREMY A. MERCER, ESQUIRE (ARGUED)

Kenneth M. Argentieri, Esquire 

Melissa L. Irr, Esquire

Maureen E. Geary, Esquire

Kirkpatrick & Lockhart LLP 

535 Smithfield Street

Pittsburgh, Pennsylvania 15222

Attorneys for Appellant

MICHAEL HANDLER, ESQUIRE (ARGUED)

Assistant District Attorney for Appeals and Legal Research

Office of the District Attorney of Indiana County

3rd Floor, Indiana County Courthouse

Indiana, Pennsylvania 15701

Attorney for Appellee
2

_________________

OPINION OF THE COURT

_________________

BECKER, Circuit Judge.

Curtis Long appeals from an order of the District Court

which denied his petition for a writ of habeas corpus after

concluding that, even though the Commonwealth failed to raise the

statute of limitations defense, 28 U.S.C. § 2244(d)(1), in the

answer to the petition, it had not waived the defense because it

advanced it after the Magistrate Judge sua sponte flagged it in her

report. This appeal requires us to decide whether this holding is

consistent with Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002),

cert. denied, 540 U.S. 826 (2003)—a case in which we stressed the

importance of early interposition of the defense—at least where the

petitioner, as here, is not prejudiced by the delay. We hold that it

is, that the Commonwealth did not waive the statute of limitations

defense, and that the petition was untimely. We will therefore

affirm the order of the District Court denying the petition on that

ground.

I. Facts and Procedural History

Long was found guilty by a jury in Indiana County,

Pennsylvania, of involuntary manslaughter in violation of 18 Pa.

Cons. Stat. Ann. § 2504(a) (West 1998), complicity to commit

second degree murder in violation of 18 Pa. Cons. Stat. Ann.

§ 2502(b), § 306(a)-(c) (West 1998), and complicity to commit

robbery in violation of 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(i)

(West 2000), § 306(a)-(c) in July 1993. His post-trial motions were

denied and he was sentenced to life in prison. The Pennsylvania

Superior Court affirmed the judgment, and the state supreme court

denied allowance of appeal on March 6, 1995. Long did not

petition for certiorari to the United States Supreme Court.

In August 1995 new counsel was appointed under the

Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann.

§ 9542 et seq. (West 1998), and Long, through that counsel, filed

his first state post-conviction petition on December 27, 1996. It

was denied, the Superior Court affirmed, and the state supreme

court denied allocatur on August 12, 1998. Long filed a state
1 Habeas Rule 5 provided in pertinent part only that the answer

shall state “whether the petitioner has exhausted his state remedies . . . .”

3

petition for writ of habeas corpus on July 25, 2001. It was denied

as an untimely state post-conviction petition, 42 Pa. Cons. Stat.

Ann. § 9545(b), and as raising previously litigated claims, 42 Pa.

Cons. Stat. Ann. § 9544, on November 29, 2001. Long did not

appeal.

Long then filed, pro se, an in forma pauperis petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in United

States District Court for the Western District of Pennsylvania,

raising thirteen grounds for relief. As the merits of Long’s claims

are not at issue here we will not provide an exhaustive list. As a

general matter, Long alleged that: (1) he was deprived of a fair trial

in that his motion for severance was denied and in that witnesses

were not sequestered; (2) his statement to police was admitted in

violation of Miranda v. Arizona, 384 U.S. 436 (1966); (3) he

received ineffective assistance of counsel in presenting a coercion

defense; (4) the prosecutor committed misconduct in the handling

of a key witness; and (5) the police violated his constitutional rights

in stopping and arresting him. The assigned Magistrate Judge

granted Long in forma pauperis status and ordered the

Commonwealth to respond to the habeas petition. The Magistrate

Judge’s order stated that the Commonwealth shall address “both

the merits of the petition and exhaustion of state court remedies as

required by 28 U.S.C. §§ 2254(b) and (c). Picard v. Connor, 404

U.S. 270 (1971); Rose v. Lundy, 455 U.S. 509 (1982); United

States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977);

Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). The answer shall

comply with the requirements of Rule 5 of the Rules Governing

Section 2254 Cases in the United States District Courts.” The

order, however, made no mention of the habeas corpus statute of

limitations, 28 U.S.C. § 2244(d)(1).1

On June 11, 2002, the Commonwealth answered the habeas

petition, provided a complete state procedural history of Long’s

claims, and asserted, citing appropriate authority, that any habeas

claim that could fairly be said to have been raised at all levels

either on direct appeal or in the first state post-conviction petition

was exhausted. Any habeas claim that was raised for the first time

in the state habeas/untimely second post-conviction petition or was

omitted on appeal to the Superior Court during the original post-
2 Thus the Commonwealth complied with the Magistrate

Judge’s order that it should address both exhaustion and the merits.

3 The habeas corpus statute of limitations provides as follows:

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

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of—

(A) the date on which the judgment

became final by the conclusion of direct

review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to

filing an application created by State

action in violation of the Constitution or

laws of the United States is removed, if

the applicant was prevented from filing

by such State action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual

predicate of the claim or claims presented

could have been discovered through the

4

conviction proceedings was, of course, barred due to procedural

default, and cause and prejudice could not be shown. The

Commonwealth then addressed on the merits the severance claim

and an ineffective assistance of counsel claim.2 Although the

Commonwealth asserted that the Miranda claim was barred due to

a procedural default, it addressed this claim on the merits. 

Long filed a reply, in which he urged the court to address his

claims notwithstanding his state procedural defaults. Thereafter,

there was no activity on the docket until January 2003, when

Long’s case was reassigned to a new United States District Judge

following the original judge’s retirement. In May 2003, the

Magistrate Judge filed a Report and Recommendation, in which

she recommended that the habeas petition be denied as untimely

under 28 U.S.C. § 2244(d)(1), which is set forth in the margin, and

which provides that a petition be filed within one year of the date

on which a judgment becomes final.3
exercise of due diligence.

28 U.S.C. § 2244(d) (West Supp. 2004). 

4 Burns held that, where a judgment became final on or before

April 24, 1996, the effective date of AEDPA, the petitioner had until

April 23, 1997, to file a federal habeas corpus petition challenging his

conviction. As noted above, Long’s judgment became final prior to April

24, 1996.

5 The Magistrate Judge concluded that Long’s post-conviction

petition was pending as of August 10, 1995 when new counsel was

appointed to represent him, and thus the statute of limitations did not

begin to run on April 24, 1996 when AEDPA took effect. Long does not

appear to have filed pro se a petition for post-conviction relief prior to

new counsel being appointed, or even after new counsel was appointed,

5

In deciding the timeliness issue under 28 U.S.C. § 2244(d),

the Magistrate Judge reasoned that Long’s conviction became final

90 days after March 6, 1995, when the Pennsylvania Supreme

Court denied allocatur, see 28 U.S.C. § 2244(d)(1)(A); Swartz v.

Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (judgment becomes final

after time for seeking discretionary review expires when

discretionary review is not sought); Kapral v. United States, 166

F.3d 565, 575 (3d Cir. 1999) (if defendant does not file certiorari

petition, judgment of conviction becomes final when time for

seeking certiorari review expires), and thus before the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) went

into effect on April 24, 1996. Pursuant to Burns v. Morton, 134

F.3d 109, 111 (3d Cir. 1998), Long had until April 23, 1997, to file

his habeas petition.4

Section 2244(d)(2) provides, however, that “[t]he time

during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward any period of

limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Thus,

the statute was tolled when Long filed his first state post-conviction

petition on December 27, 1996, started to run again on August 12,

1998, when the state supreme court denied allowance of appeal of

that petition, see Stokes v. District Attorney of County of

Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001) (time during which

state prisoner may file certiorari petition from denial of state postconviction petition does not toll statute of limitations), and expired

well before he filed his federal habeas petition on April 16, 2002.5
and counsel did not file a petition on Long’s behalf until December 27,

1996. It thus seems that, because a petition was not pending, the statute

began to run on April 24, 1996 when AEDPA went into effect, ran for

about eight months, and then was tolled on December 27, 1996.

Whether Long had four months left in which to file his federal habeas

petition when the statute began to run again on August 12, 1998, or a full

twelve months, his filing of his federal habeas petition on April 16, 2002

was late, and Long has conceded that his habeas petition was untimely

filed.

6

The state habeas petition had no effect on tolling, because an

untimely state post-conviction petition is not “properly filed” for

purposes of tolling, Merritt v. Blaine, 326 F.3d 157, 165-66 (3d

Cir.), cert. denied, 124 S. Ct. 317 (2003), and, in any event, the

limitations period had already run when it was filed. In addition,

no other statutory exceptions applied, and there was no basis under

our decisions in Miller v. New Jersey State Dep’t of Corr., 145

F.3d 616, 618-19 (3d Cir. 1998), Fahy v. Horn, 240 F.3d 239, 244-

45 (3d Cir. 2001), or Johnson v. Hendricks, 314 F.3d 159, 162-63

(3d Cir. 2002), cert. denied, 538 U.S. 1022 (2003), for equitable

tolling.

The Magistrate Judge then addressed the issue we are

required to decide in this appeal. She noted that the

Commonwealth had not raised the statute of limitations as an

affirmative defense, which presented the question whether the

defense was waived under our decision in Robinson v. Johnson,

313 F.3d 128. Relying on Acosta v. Artuz, 221 F.3d 117, 123 (2d

Cir. 2000), she concluded that a federal magistrate judge could

raise the habeas corpus statute of limitations issue sua sponte

because it implicated values “beyond the concerns of the parties.”

She cited a footnote in our decision in Banks v. Horn, 271 F.3d

527, 533 n.4 (3d Cir. 2001), rev’d on other grounds, 536 U.S. 266

(2002), which predates Robinson, wherein we noted, in reliance

upon Acosta, among other cases, that a court of appeals could

review the AEDPA statute of limitations issue sua sponte even if

it were not properly before the court. She further observed that we

stressed in Robinson that there is more than one reason why

affirmative defenses should be raised as early as is practicable, and

one of them is to promote judicial economy, to which she clearly

believed she was contributing.

Long, who was not represented by counsel in the District

Court, timely filed objections, in which he argued that the court
7

should apply the miscarriage of justice exception to the AEDPA

statute of limitations; in his case the putative miscarriage of justice

was a fundamentally unfair trial. Importantly for our purposes

here, the Commonwealth filed an answer to the objections a week

later (and within three weeks of the filing of the Report and

Recommendation) in which it endorsed the Magistrate Judge’s

view that the habeas petition was untimely, stating: “[The

Magistrate Judge] determined that the Petition was barred by the

one-year statute of limitation provided under 28 U.S.C. § 2244(d).

Respondents submit that [the Magistrate Judge] was correct for the

reasons set forth in the following paragraphs.” Respondent’s

Answer to Petitioner’s Objections to the Magistrate Judge’s Report

and Recommendation, at ¶ 2. The Commonwealth also expressed

its agreement with the Magistrate Judge’s analysis as it related to

calculating when the habeas petition should have been filed, id. at

¶¶ 3-6, and then asked the District Court in the final unnumbered

paragraph of this answer to dismiss the petition as untimely,

stating: “Wherefore, Respondents respectfully request your

Honorable Court to overrule Petitioner’s Objections and to adopt

[the Magistrate Judge’s] Report and Recommendation.”

The District Court did just that. In a Memorandum Order

entered on June 4, 2003, the District Court denied the habeas

petition as untimely and adopted the Report and Recommendation

as the Opinion of the Court. The court stated: 

The magistrate judge’s report and recommendation,

filed May 12, 2003, recommended that the Petition

be denied as untimely and that a certificate of

appealability be denied. Petitioner has filed

objections to the report and recommendation in

which he asserts that he has demonstrated cause for

his procedural default and prejudice therefrom . . . .

The magistrate judge recommended that the petition

be dismissed because it was not timely filed within

the one-year limitations period provided for under

the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 28 U.S.C. § 2244(d). The

magistrate judge did not find any procedural default

so the “cause and prejudice” standard does not apply

to this case . . . . In her report and recommendation

the magistrate judge discussed the doctrine of

equitable tolling which can toll the running of the

AEDPA statute of limitations, and properly
6 We thank court-appointed counsel for his able oral

presentation and briefs, which were of great assistance.

8

determined that petitioner has not shown a basis for

tolling. After de novo review of the pleadings and

documents in the case, together with the objections

to [the] report and recommendation . . . IT IS

HEREBY ORDERED that the Petition be denied as

untimely.

Memorandum Order of the District Court, at 1-3 (citation omitted).

Long appealed, and we appointed counsel and granted a

certificate of appealability as follows: 

[W]hether the respondent to a habeas petition must

raise the statute of limitations defense, 28 U.S.C.

§ 2244(d), in the answer to the habeas petition or be

deemed to have waived it. Robinson v. Johnson, 313

F.3d 128 (3d Cir. 2002). Put another way, may the

Magistrate Judge in a Report and Recommendation

recommend dismissal on the basis of untimeliness

when the respondent has failed to raise the defense

in its answer, id., and may the state thereafter raise

the statute of limitations defense in a supplemental

pleading to avoid being deemed to have waived the

defense, [and] whether the respondent here may be

deemed to have raised the statute of limitations

defense in its Answer to Petitioner’s Objections to

the Magistrate Judge’s Report and Recommendation.

Order of Court (Feb. 20, 2004).6

We have jurisdiction pursuant to 28 U.S.C. § 1291. The

District Court’s analysis of the statute of limitations issue, which

in Long’s case does not involve disputed facts, is subject to plenary

review, see Swartz v. Meyers, 204 F.3d at 419, except to the extent

that the District Court impliedly permitted the Commonwealth to

amend its answer. That decision is reviewed for an abuse of

discretion. See Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing

of Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981). 

II. The Amendment to the Answer

A. Robinson v. Johnson
9

Our discussion must necessarily begin with Robinson v.

Johnson, supra. Robinson, whose first federal habeas petition was

dismissed for failure to exhaust state remedies, filed a second

federal habeas petition, which was referred to a magistrate judge

who ordered a responsive pleading. The Commonwealth filed a

letter response, arguing that the petition should be transferred to the

court of appeals for authorization because it was a successive

petition. 313 F.3d at 132. The magistrate judge recommended

denying the petition on that basis, and the district court accepted

the magistrate judge's recommendation. 

Robinson appealed, and we ordered the Commonwealth to

show cause why the order dismissing the petition should not be

summarily reversed in light of Christy v. Horn, 115 F.3d 201, 208

(3d Cir. 1997) (where federal habeas petition has been dismissed

without prejudice for failure to exhaust state remedies, petitioner

need not apply to court of appeals for authorization to file a second

habeas action.) The Commonwealth filed a letter brief, in which

it conceded that Robinson’s second federal habeas petition was not

successive. The Commonwealth did not present any alternative

legal grounds for affirming the district court. We then summarily

reversed and remanded.

On remand, Robinson filed a motion to strike his original

petition and for permission to file an amended petition. The

Commonwealth then filed a pleading, asserting for the first time

that Robinson’s second federal habeas petition was time-barred by

AEDPA’s statute of limitations, 28 U.S.C. § 2244(d)(1).

Robinson, in rebuttal, argued that the Commonwealth's statute of

limitations defense was untimely. The magistrate judge endorsed

the Commonwealth’s argument, and the district court adopted the

magistrate judge’s Report and Recommendation over Robinson's

renewed objection that the Commonwealth had waived its

limitations defense.

On appeal, we held first that, because the statute of

limitations is not jurisdictional in nature, see Miller v. New Jersey

State Dep’t of Corr., 145 F.3d at 617-18, the state may waive the

defense. Robinson, 313 F.3d at 134. Because the Federal Rules of

Civil Procedure are applicable to habeas petitions to the extent that

they are not inconsistent with the habeas rules, we then considered

whether Federal Rule of Civil Procedure 8(c) requires that a

defendant plead an affirmative defense, such as a statute of

limitations, in its answer. Robinson, 313 F.3d at 134. We

explained: “Parties are generally required to assert affirmative
10

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.” Id. We further emphasized: “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. Id.

at 134-35 (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,

402 U.S. 313, 350 (1971)). 

Nevertheless, we expressly held that “a limitations defense

does not necessarily have to be raised in the answer.” Id. at 135.

We surveyed several cases involving Federal Rule of Civil

Procedure 15(a) and amendments to answers. In Venters v. City of

Delphi, 123 F.3d 956, 967-69 (7th Cir. 1997), for example, the

Seventh Circuit held that the defendant had waived the statute of

limitations defense, and that the district court had abused its

discretion in permitting an amendment to the answer. The court

explained that, if the relevance of a statute of limitations defense

becomes apparent only after discovery, the defendant should

promptly seek leave of court to amend the answer and a district

court should grant the motion, but that the district court should not

countenance an eleventh-hour invocation of the defense, and that

raising the statute of limitations for the first time in a reply

memorandum in support of a motion for summary judgment was an

impermissible eleventh-hour invocation. The parties had

completed an exhaustive discovery process, trial was a month

away, and the plaintiff had been denied the opportunity to file a

surreply.

After discussing Venters and other cases, the panel

explained that all of the cases surveyed reflected “attempts by the

courts to keep the consideration of affirmative defenses consistent

with at least the purpose, if not necessarily the language, of Rule

8(c).” Robinson, 313 F.3d at 137. Thus, although an affirmative

defense need not be raised in the answer, it must be raised “as early

as practicable” thereafter. Id. We reasoned that affirmative

defenses must be raised as early as is practicable, not only to avoid

prejudice to a plaintiff or petitioner, but also to promote judicial

economy. We wrote: “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.” Id. We

then stated that affirmative defenses under AEDPA should be
11

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.” Id.

Applying this rule, we went on to hold that the

Commonwealth’s assertion of its affirmative defense of the statute

of limitations was not untimely. We opined that the

Commonwealth’s letter response to Robinson's habeas petition

seeking transfer to the court of appeals was equivalent to a motion

to dismiss for lack of subject matter jurisdiction. A motion to

dismiss for lack of subject matter jurisdiction is a favored defense,

id. at 139 (citing Fed. R. Civ. P. 12(h)), and we opined that: (1) the

Commonwealth did not have to include the statute of limitations

defense in its original motion to transfer, and was not required to

raise the defense when the case was on appeal for the first time, id.

at 139-40; and (2) the normal rules regarding the waiver of

defenses under Fed. R. Civ. P. 8(c) did not apply until the threshold

issue of successiveness was resolved. We then stated that the

defense was not waived because the Commonwealth raised it in its

first pleading on remand. Id. at 141. 

This reference to the “first” pleading on remand was

descriptive of the procedural circumstances of Robinson’s case,

i.e., a construction of our holding that the AEDPA statute of

limitations defense should, if not pleaded in the answer, be raised

at the earliest practicable, or possible, or feasible, moment

thereafter. Robinson, 313 F.3d at 137. What the earliest

practicable or possible or feasible moment after an answer has been

filed might be in another case where the procedural circumstances

were different we necessarily left open.

B. Federal Rule of Civil Procedure 15(a): Prejudice and the

Role of Delay and Inadvertence

We turn to Long’s arguments on appeal. Long concedes

that Robinson does not impose an absolute requirement that the

AEDPA statute of limitations defense be asserted in the answer.

However, he argues that he suffered undue prejudice as a result of

the delay in raising the defense, and that the Commonwealth should

have a compelling reason for failing to assert the defense in the

answer. Long argues that Robinson was not meant to grant extra

time to those litigants who fail to assert the defense in the answer

as a result of inadvertence. 

Long relies on a decision from the Second Circuit, Strauss
12

v. Douglas Aircraft Co., 404 F.2d 1152, 1156-57 (2d Cir. 1968),

which we cited in Robinson, 313 F.3d at 136. In Strauss, the

district court granted the defendant leave to amend the answer to

plead the statute of limitations defense. On appeal the court

reversed, holding that, since the complaint had apprised the

defendant of an implied warranty claim, and since the defendant

from prior experience should have been aware of the choice of

forum issue inherent in the case, the limitations defense should

have been raised in the original answer, or at a minimum, within a

reasonable time thereafter. The court found that the defendant’s

conduct in raising the defense four years late was inexcusable, and

that the plaintiff was substantially prejudiced in that, had the statute

been timely pleaded, he might have been able to bring another

action in a jurisdiction where his suit would not have been timebarred.

We do not doubt that Strauss correctly states the law, but it

provides only general support for Long’s argument. First, it does

not hold that inadvertence on the part of a defendant establishes

undue prejudice sufficient to deny an amendment under Rule 15(a).

Second, the length of the delay in Strauss was extremely long.

Third, and perhaps most important of all, the plaintiff suffered

actual prejudice in that his action might not have been time-barred

in another jurisdiction had he known about the statute of limitations

defense sooner. With respect to the latter basis for Strauss’s

holding, we note that Long’s habeas petition unquestionably was

untimely under 28 U.S.C. § 2244(d). Thus he suffered no prejudice

of the type discussed in Strauss. The frustrated expectation of not

having an untimely habeas petition heard on the merits does not

establish prejudice sufficient to defeat an amendment to an answer.

The delay here presents a closer question. As Long points

out, the Commonwealth took 14 months to assert the defense.

Long filed his habeas petition in April 2002, and the

Commonwealth did not raise the statute of limitations defense until

June 2003. The passage of time factors into the analysis of whether

a plaintiff has suffered prejudice by a delay in amending an answer

to assert an affirmative defense. See Robinson, 313 F.3d at 136

(citing Venters, 123 F.3d at 968-69; Strauss, 404 F.2d at 1155-56;

Hayden v. Ford Motor Co., 497 F.2d 1292, 1295 (6th Cir. 1974);

and Int’l Bhd. of Boilermakers, Local 1603 v. Transue & Williams

Corp., 879 F.2d 1388, 1396 n.3 (6th Cir. 1989)). We conclude,

however, that the Commonwealth cannot fairly be said to have

unduly delayed in raising the AEDPA statute of limitations
13

defense. 

The Commonwealth answered the complaint one month

after being ordered to do so, and raised the statute of limitations

defense one week after Long filed his objections and three weeks

after the Magistrate Judge filed her Report and Recommendation.

The inactivity on the docket from July 2002 until January 2003

when a new District Judge was assigned, and again from January

2003 until May 2003 when the Magistrate Judge filed her Report

and Recommendation, is not attributable to the Commonwealth

under the circumstances; indeed, in a case referred to a magistrate

judge, once a habeas petition is filed and answered, it seems

reasonable for the parties to wait for a Report and

Recommendation to be filed before engaging in further pleading.

With respect to the question of inadvertence, the Commonwealth

concedes in its brief on appeal that it made a mistake in not raising

the defense in the answer. It argues, however, that it in effect made

a timely and proper amendment of its answer in accordance with

Federal Rule of Procedure 15(a), and that the District Court, in

effect, allowed the amendment in its discretion. We agree. 

The Commonwealth relies on Block v. First Blood

Associates, 988 F.2d 344 (2d Cir. 1993), also from the Second

Circuit, where the defendants first raised a statute of limitations

defense in a motion for summary judgment four years after the

complaint was filed. The district court treated the motion for

summary judgment as a motion to amend the pleadings and

dismissed the action as time-barred. On appeal the Second Circuit

affirmed, holding that there was no showing of prejudice to the

plaintiff and no bad faith on the part of the defendant. The court

noted in particular the complete absence of bad faith and the fact

that the suit “was untimely on the day it was commenced.” Id. at

351. The court rejected the plaintiff’s argument that his frustrated

expectations constituted undue prejudice sufficient to overcome the

Rule 15(a) right to amend a pleading. Id.

Block elaborates a standard for judging prejudice that is

compatible with Robinson, 313 F.3d at 136-37, and Rule 15(a)

jurisprudence in this Circuit. The Second Circuit reasoned that,

generally, the longer the unexplained delay, the less the plaintiff

must show in terms of prejudice. 988 F.2d at 350 (citing Advocat

v. Nexus Indus., Inc., 497 F. Supp. 328, 331 (D. Del. 1980)). In

determining what constitutes prejudice, the Second Circuit

considers “whether the assertion of the new claim would: (i)

require the opponent to expend significant additional resources to
14

conduct discovery and prepare for trial; (ii) significantly delay the

resolution of the dispute; or (iii) prevent the plaintiff from bringing

a timely action in another jurisdiction.” Id. (internal quotations and

citations omitted). The court also emphasized the absence of bad

faith. We endorse the Second Circuit approach. None of these

considerations are present in Long’s case. He was not forced to

undertake discovery or additional discovery, and he could not have

brought his habeas action in another jurisdiction. Moreover, the

Commonwealth’s amendment did not delay resolution of the case

and was not the product of bad faith. 

Rule 15(a) requires that leave to amend the pleadings be

granted freely “when justice so requires.” Fed. R. Civ. Pro. 15(a).

We have held that motions to amend pleadings should be liberally

granted. See, e.g., Adams v. Gould Inc., 739 F.2d 858, 867-68 (3d

Cir. 1984) (“[U]nder the liberal pleading philosophy of the federal

rules as incorporated in Rule 15(a), an amendment should be

allowed whenever there has not been undue delay, bad faith on the

part of the [movant], or prejudice to the [nonmovant] as a result of

the delay.”). In Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173

(3d Cir. 1994), we stated: “This Court has often held that, absent

undue or substantial prejudice, an amendment should be allowed

under Rule 15(a) unless ‘denial [can] be grounded in bad faith or

dilatory motive, truly undue or unexplained delay, repeated failure

to cure deficiency by amendments previously allowed or futility of

amendment.’” Id. at 1196 (quoting Bechtel v. Robinson, 886 F.2d

644, 652-53 (3d Cir. 1989) (emphasis in original). The plain

terms of Rule 15(a) do not discriminate on the basis of type of

pleading. The liberal right to amend extends to an answer to the

complaint. Heyl & Patterson Int’l, Inc. v. F.D. Rich Housing of

Virgin Islands, Inc. V. Government of the Virgin Islands, 663 F.2d

at 425. In Heyl, the plaintiff filed a breach of contract action and

the government, in an amended answer, pleaded one specific type

of illegality as an affirmative defense. The government’s pretrial

statement contained an assertion of the same specific illegality

defense. In its opening statement at trial, however, the government

asserted three additional specific illegality defenses. Judgment was

entered in its favor. On appeal the plaintiff argued that the

government had waived the three additional illegality defenses, and

that the district court improperly treated the government’s opening

statement at trial as an implied amendment to the answer. We

disagreed, holding first that, although “procedure[s] for obtaining

leave to amend pleadings set forth in Rule 8 of the Fed.R.Civ.P.
15

should generally be heeded, . . . rigid adherence to formalities and

technicalities must give way before the policies underlying Rule

15.” Id. at 426. Moreover, we did not believe that the government

had to supply a compelling reason for its delay in asserting the

three additional defenses in view of the absence of prejudice to the

plaintiff. Id. at 426-27. 

We believe that Heyl is instructive here for its treatment of

the question of delay as it relates to the larger issue of prejudice,

and for its rejection of the argument that a respondent or defendant

must supply a compelling reason for the delay even if there is no

prejudice. Such a rule, if adopted, would certainly run counter to

the well-established rule that amendments should be liberally

allowed. Heyl also is instructive for what it teaches about

flexibility and the formalities of Rule 15(a), both with respect to

how an amendment is advanced by a respondent or defendant, and

with respect to how it is given effect by a court. Consistent with

Heyl, we agree that, although the Commonwealth did not rigidly

adhere to the formalities of seeking leave to amend, it in effect

made a timely and proper amendment of its answer. In addition,

the District Court, although it did not expressly state that it was

allowing the answer to be amended, in effect, allowed the

amendment in its discretion by disposing of the petition on the

basis of untimeliness under 28 U.S.C. § 2244(d).

C. Summary

Robinson, 313 F.3d at 136-37, the Rule 15(a) cases

discussed therein, and our Rule 15(a) jurisprudence, see, e.g., Heyl,

663 F.2d at 426-27, counsel that, whether a habeas petitioner has

been prejudiced by the assertion of the AEDPA statute of

limitations defense after an answer has been filed is the ultimate

issue, and that prejudice turns on such factors as how late in the

proceedings the defense was raised, whether the petitioner had an

opportunity to respond, and whether the respondent acted in bad

faith. See also Adams, 739 F.3d at 867-68; Lundy, 34 F.3d at 1196.

Delay is related to prejudice but was not a problem here, and

inadvertence does not equal bad faith. We hold that the

Commonwealth timely raised the habeas corpus statute of

limitations defense, 28 U.S.C. § 2244(d), by expressly endorsing

the Magistrate Judge’s analysis of the timeliness issue, and that

Long was not prejudiced thereby. The District Court impliedly

approved of the Commonwealth’s “amendment” to the answer by
16

denying the petition as untimely, and did not abuse its discretion in

doing so.

III. The Sua Sponte Flagging of the Statute of Limitations 

Issue by the Magistrate Judge

The question that remains is the effect of the Magistrate

Judge’s flagging of the statute of limitations defense once an

answer had been filed, and of the Commonwealth’s response

thereto. Our answer to that question was foreshadowed by Banks

v. Horn, 271 F.3d 527, a death penalty case which touched

preliminarily on the AEDPA statute of limitations before reaching

the merits of the petitioner’s habeas claims. In the footnote cited

by the Magistrate Judge, we expressed the view that a court of

appeals could address the AEDPA statute of limitations defense

sua sponte even if the habeas respondent had waived the issue on

appeal. We wrote: 

Even if not raised, we believe we could consider this

issue sua sponte. “While ordinarily we do not take

note of errors not called to the attention of the Court

of Appeals nor properly raised here, that rule is not

without exception. The Court has ‘the power to

notice a “plain error” though it is not assigned or

specified,’ . . . ‘In exceptional circumstances,

especially in criminal cases, appellate courts, in the

public interest, may, of their own motion, notice

errors to which no exception has been taken, if the

errors are obvious, or if they otherwise seriously

affect the fairness, integrity or public reputation of

judicial proceedings.’” Silber [v. United States], 370

U.S. [717,] 717-18, 82 S. Ct. 1287, 8 L. Ed.2d 798

[(1962)] (internal citations omitted). See also Acosta

v. Artuz, 221 F.3d 117 (2d Cir. 2000); Kiser v.

Johnson, 163 F.3d 326 (5th Cir. 1999).

Id. at 533 n.4. 

The Commonwealth had argued unsuccessfully in the

district court that Bank’s federal habeas petition was untimely. Id.

at 532. On appeal Banks argued that the timeliness of his habeas

petition was not before us because the Commonwealth had not

challenged the district court’s ruling in its counterstatement of

issues, and had failed to discuss the issue in its brief except for a

conclusory reference to its position in a footnote. We disagreed,
17

believing that we should examine the issue “in light of the District

Court’s careful analysis of this issue and its importance, and

because the government did make reference to the issue albeit in a

footnote.” Id. at 533. The footnote quoted above followed. We

then went on to hold that the District Court appropriately applied

equitable principles to toll the one-year AEDPA statute of

limitations requirement. Id. at 534.

Thus we observed prior to Robinson that the AEDPA statute

of limitations is an important issue, the raising of which may not

necessarily be left completely to the state. The Banks footnote

refers to public interest policies underlying the AEDPA statute of

limitations, in terms and by its reliance on Acosta v. Artuz, 221

F.3d 117, a decision also cited by the Magistrate Judge in this case.

In Artuz, where a responsive pleading had not yet been filed, the

Second Circuit held that, even though the statute of limitations is

an affirmative defense, a district court on its own motion may raise

the time bar, because AEDPA’s statute of limitations “implicates

values beyond the concerns of the parties” having to do with the

finality of convictions. 221 F.2d at 123. The court explained:

The AEDPA statute of limitation promotes judicial

efficiency and conservation of judicial resources,

safeguards the accuracy of state court judgments by

requiring resolution of constitutional questions while

the record is fresh, and lends finality to state court

judgments within a reasonable time. Like the other

procedural bars to habeas review of state court

judgments, the statute of limitation implicates the

interests of both the federal and state courts, as well

as the interests of society, and therefore it is not

inappropriate for the court, on its own motion, to

invoke the doctrine.

Id. (internal quotations and citations omitted). We agree. While

civil in nature, habeas corpus cases are different from ordinary civil

cases where only the interests of the parties are involved.

In Artuz, the Second Circuit reasoned that the authority of

a district judge to raise procedural defenses sua sponte is consistent

with Rule 4 of the rules governing habeas corpus, which gives the

district court the power to review and dismiss habeas petitions prior

to any responsive pleading by the state. Id. Artuz correctly states

the law, see also Hill v. Braxton, 277 F.3d 701, 706 (4th Cir.

2002); Herbst v. Cook, 260 F.3d 1039, 1042 & n.3 (9th Cir. 2001);

Kiser, 163 F.3d 326, 328-29 (5th Cir. 1999), and is instructive, but
7 For this reason, the non-federal habeas cases cited by Long

holding that the statute of limitations may not be raised sua sponte are

inapposite.

8 Habeas Rule 5, for example, has been amended, effective

December 1, 2004, to provide that the answer shall state “whether any

claim in the petition is barred by a failure to exhaust state remedies, a

procedural bar, non-retroactivity, or a statute of limitations,” and thus

treats the AEDPA statute of limitations like other procedural habeas

18

it is not necessarily dispositive here because a responsive pleading

was filed by the Commonwealth which omitted the statute of

limitations defense. The issue in Long’s case is whether the court

can alert the respondent to the defense, and whether the answer can

be amended consistent with Rule 15(a) and Robinson, 313 F.3d at

136-37.

We think it plain that a federal magistrate judge may raise

the AEDPA statute of limitations issue in a Report and

Recommendation after an answer has been filed. In Granberry v.

Greer, 481 U.S. 129, 134-35 (1987), the Supreme Court held that

a court has the discretion, in the interests of comity and federalism,

to decide whether justice would be better served by insisting that

a claim be fully exhausted or by rejecting it if it is plainly lacking

in merit. It is now widely recognized that judges have discretion

to raise procedural issues in habeas cases. See, e.g., Sweger v.

Chesney, 294 F.3d 506, 520-21 (3d Cir. 2002) (whether claim is

barred due to procedural default may be considered sua sponte),

cert. denied, 538 U.S. 1002 (2003); Smith v. Horn, 120 F.3d 400,

407 (3d Cir. 1997) (discretion to consider exhaustion question

afforded by Granberry). For one thing, judicial economy is

promoted when a magistrate judge identifies the issue early in the

course of a case. The limitations issue here was flagged by the

Magistrate Judge as part of the preliminary consideration of the

matter. See 28 U.S.C. § 636(b)(1). 

Most importantly, however, raising procedural habeas issues

furthers the interests of comity and federalism. See Sweger, 294

F.3d at 521; Artuz, 221 F.2d at 123. We have stated that, because

these concerns are so important, it is not exclusively up to the

parties to decide whether habeas procedural issues should be raised

or waived. See, e.g., Szuchon v. Lehman, 273 F.3d 299, 321 n.13

(3d Cir. 2001).7 Because we see no difference between the habeas

corpus statute of limitations and other habeas procedural issues,8
issues. 

19

we hold that our decision in Robinson, 313 F.3d 128, does not

prevent a magistrate judge from raising the AEDPA statute of

limitations defense sua sponte even after an answer has been filed.

There are decisions contra. The Sixth Circuit has held in a

2-1 decision that the state waived the statute of limitations defense

by failing to raise it in the answer. Scott v. Collins, 286 F.3d 923

(6th Cir. 2002). The court reasoned that a district court’s power to

sua sponte raise the AEDPA statute of limitations is limited to

habeas Rule 4, and that habeas Rule 4 applies only before a

responsive pleading is filed. Therefore, the court’s actions

amounted to an impermissible curing of the respondent’s waiver.

Id. at 929-30. The Ninth Circuit recently joined the Sixth Circuit

in Nardi v. Stewart, 354 F.3d 1134 (9th Cir. 2004). The court

agreed that a district court’s authority to raise the defense sua

sponte evaporates once a responsive pleading is filed. Id. at 1141-

42. 

The Scott and Nardi decisions are at odds with Robinson

and our Rule 15(a) jurisprudence, which do not require that

affirmative defenses be pled in the first responsive pleading.

Moreover, we believe the dissenting opinion in Scott, 286 F.3d at

931-34 (Stafford, J., dissenting), places the necessary emphasis on

the policies underlying AEDPA, and a court’s authority, in its

discretion, to raise procedural habeas issues. Noting that the

respondent's failure to raise the defense was inadvertent, and that

the petitioner was given an opportunity to respond to the limitations

issue, the Scott dissent emphasizes, as we do here today, that:

“Congress intended AEDPA to further the principles of comity,

finality, and federalism.” 286 F.3d at 932 (citing Williams v.

Taylor, 529 U.S. 420, 436 (2000)). “Consistent with such purpose,

Congress created a one-year limitations period that was meant to

streamline the habeas review process and to lend finality to state

court convictions.” Id. at 933 (citing Duncan v. Walker, 533 U.S.

167, 179 (2001)). In Duncan, the Supreme Court explained: “This

provision reduces the potential for delay on the road to finality by

restricting the time that a prospective federal habeas petitioner has

in which to seek federal habeas review.” 533 U.S. at 179. In our

view, AEDPA’s statute of limitations advances the same concerns

as those advanced by the doctrines of exhaustion and procedural

default, and must be treated the same. Scott, 286 F.3d at 934
(Stafford, J., dissenting). See also Banks, 271 F.3d at 533 n.4.

IV. Conclusion

 In sum, we hold that, consistent with Robinson v. Johnson,

313 F.3d 128, and our Rule 15(a) jurisprudence, see, e.g., Heyl,

663 F.2d at 426-27, the Commonwealth timely raised the habeas

corpus statute of limitations defense, 28 U.S.C. § 2244(d), and that

Long was not prejudiced by what amounted to an amendment to

the Commonwealth’s answer. The District Court impliedly granted

leave to amend in a proper exercise of its discretion by denying the

petition as untimely. Having in mind that AEDPA’s statute of

limitations, like other procedural habeas issues, furthers the

principles of comity, finality, and federalism, see Williams, 529

U.S. at 436, we hold further that a federal magistrate judge may,

consistent with Robinson v. Johnson, 313 F.3d 128, raise sua

sponte the AEDPA statute of limitations defense even after an

answer has been filed, see Granberry, 481 U.S. at 134-35. The

order of the District Court denying the habeas petition as untimely

will be affirmed.