2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

12-29-2004 

# Lon g v . W i l son

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al
D ocke t N o . 03-2898

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

NO. 03-2898

________________ CURTI S LONG,

Appellant

v.
HARRY WI LSON, SUPE RIN TENDENT

___________________________________ On A ppeal Fro m the U nited States D istrict Court For th e W estern Distric t of P enns ylvania (D.C. Civ. No. 02-cv-00728) Distri ct Judge: Honorable Arthur J. Schwab

__________________________ Argued October 26, 2004

Be for e: S CIR ICA , Chief Judge , FI SHER and BECKER ,

Circuit Judges
(Fil ed December 29, 2004)

JER EMY A. MERCER, ESQUI RE ( ARGUED) Kenneth M. Argentieri, Esquire Me lissa L. Irr, Esquire Ma ureen E . Geary, Esquire Kirkpatri ck & Lockhart LLP 535 Smithfie ld Str eet Pitt sburgh, Pennsyl vania 15222 Attorney s for Appel lant

MICHAE L HANDLER , E SQUI RE ( ARGUED) Assist ant Dist

rict Attorneyfor Appeals and LegalResearch Of fice o f the D istrict Atto rney of I ndian a Co unty 3rd Floor, Indiana County Courthouse Indiana, Pennsyl vania 15701 Attorneyfor Appellee2 _________________ OPINI ON OF THE COURT

_________________ BE CK ER , Circuit

Judge

.
Cu rtis Long appeals fr om an order o f the D istrict Court which denied hi s peti tion for a w rit of habeas corpus after concludi ng that, even though the C om mo nw ealth fail ed to rai se the statute of limi tati ons def ense, 28 U.S.C. § 2244(d) (1), in the
answer to the pe tition, i t had not wai ved the defens e beca use it advanced it af

terthe Magistr ate Judge sua spon te flagg ed it in her repo rt. This appealreq uires u s to de cide w hethe r this ho lding is consistent with Robinson v. Johnson , 313 F.3d 12 8 (3d C ir. 2002), cert. denied , 54 0 U

. S. 82 6 ( 20 03 ) —a case in whic h we stress ed the importanc e of

early interposition of the def ense— at least where the petit ion er, as her e, is n ot p reju dice d by th e de lay. We hold that it is, that t he Commonw ealth did not waive the stat ute of l imit ations defens e, and that the p etition was un timely. We w ill there for e affirm the order

of the Dist

rict Court deny ing the pe tition on that ground.

I. Facts and P rocedura l History
Long w as fo un d g ui lty by a j ur y in In di an a C ou nt y, Pennsyl vania, of involunt ary manslaughte r in vi olati on of 18 Pa. Cons. Sta t. An n. § 2504(a ) (W est 19 98), co mp licity to com mit second degree murder

in vi ol ation of

18 Pa. Cons. St at. Ann. § 250 2 (b), § 3 06(a )-(c) (W est 19 98), an d com plicity to com mit robbery in viola tion of 18 P a. Co ns. Sta t. Ann . § 370 1(a)(1 )(i) (West 2000), § 306( a)-( c) in Jul y 1993. His post- tri al moti ons were denie d and he was sentenced to life in prison. The Pennsy lvani a Superior Court affi rmed the j udgment, and the state suprem e court denied allowance of appe al on March 6, 199 5. Long did not petition for ce rtiorari to th e U nited S tates Su prem e Co urt. In August 1995 new counsel was app ointed unde r the Pen nsylvan ia Post Conviction Reli ef Act, 42 Pa. Cons. Stat . Ann. § 9542 et se q. (West 1998), and Long, thr ough that c ounsel, file d his firs t st ate post -convict ion peti tion on Dece mber 27, 1996 . It
was denied, the S uperi or Court a ffi rme d, andth e s ta te sup re me court denied al locatur on August 12, 199 8. Lo ng f iled a sta te1 Habeas Rule 5 provided in pertinent part only that the answer shallstate “whether the petitioner has exhausted his state remedies . . . .”
3 petit ion for writ

of habeas corpus on July25, 2001. I t was denied
as an untimel y st ate post -conv i ction p etition, 42 Pa. C ons. S tat. Ann. § 9545(b), and as rai sing pre viousl y l iti gated cl aims, 42 P a
. Cons. S tat. Ann. § 9544, on November 29, 2001. Long did not appe al. Long then fi led, pro se, an in forma pauperis petit ion for writ of habeas corpus pursuant to 28 U .S.C. § 2254 in United States Distric t Cou rt for the We ste rn Dist rict of Pennsy lvania , rais ing thirte en g rou nds for relie f. As the mer it s of Long ’s cl ai ms are n ot at issue here we will not provide an exhaustive l ist . As a general matter , Long alle ged that : (1) he was deprived of a fair t rial in that hi s motion f

or sever ance was denied and i n that wit nesses were not seque stered ; (2) his sta teme nt to po lice w as ad mitted in violat ion of Miran da v. Ar i zona , 384 U.S. 436 ( 1966); ( 3) he recei ved ineffective ass ist ance of counsel i n presenting a coer cion defense; (4) the prosecut or committ ed misconduct in the handling of a key wit ness; and (5) the polic e violated his co nstitution al rights in stopp ing an d arres ting him . The assign ed M agistrate Jud ge gra nted Long in forma pauperis stat us and order ed t h e Co mm onw ealth to resp ond to the habeas petition . The M agistrate Judg e’s orde r stated th at the C om mo nw ealth sh all add ress “b oth the merits of the petiti on and exhausti on of state court remedies as required by 28 U.S .C. § § 22 54( b) a nd ( c). Picard v. Connor , 404 U.S. 270 (197 1); Rose v. Lundy , 455 U .S. 509 (198 2); United Statesex rel. Trantino v . Hatrack , 563 F.2d 86 (3d C ir. 1977); Zica relli v. Gray , 543 F.2d 466 (3d Cir. 1976 ). T he an swe r shall
com ply with the r equ ir emen ts of Ru le 5 of th e Ru les Governing Section2254 Cases in t he United Stat es Distr

ict Court s.” The order, however , ma de no mention of t he habeas corpus stat

ute of limitations, 28 U.S .C. § 224 4(d)(1). 1 On June 11, 2002, the Commonw ealth answered the habeas petit ion, provided a c omplete st ate proc edural hi story of Lo ng’s clai ms, and ass erted, citi ng appropri ate authority, that any habe as claim that co uld fa irly be said to have been raised at all leve ls eithe r on direct

appeal or

in the first

state post- conviction peti tion
was exh aus te d. Any hab eas cl ai m th atwas r ai se d fo r the f ir st ti me in the state habeas/unt

imelysecond post-c onvicti on petit ion or was omitt ed on ap peal to th e Sup erior C ourt d uring the orig inal po st-2 Thus the Commonwealth complied with the Mag istrate Judge’s o rder tha t it should a

ddress both exhaustion and the m erits.
3 Thehabeas c orpus sta

tuteof limitati ons provid

es as follows: ( d)(1) A 1-year per

iod of limita

tion shall a

pply to a n applicationfor a wr

it of habeas corpu s 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 t

he judgme n t became final bythe conclusion of direct review or t he expiration of the time for seeking such review; (B) the date on which

the imped

iment to fili ng an applic ation cr eated by State actionin violation of the C on stitution or la ws of the Un

ited State s is removed, if the app licant was prevented from filing by such State action; (C) the date

on which t

he constitu ti onal right asserted was initially recognizedby the Supre me Cou rt, if

the ri gh t has been newly recognized by

the Supreme Court andmade re

troactivel y a

pplicable to cases on collateral review; or (D) the date on w h ich the factual predica teof the claim or claims presented could have been di sco vered through the

4 conviction proceedi ng s was , of cours e, barred due to proc edural defa ult, and cau se and p re j udice coul d not be shown. The Commonw ealth then addre ssed on the merits th e sev eranc e claim and an i nef

fec ti ve a ss is ta nce of c oun se l c la im. 2 Although th e Co mm onw ealth asserted that the Miranda claim wa s barre d du e to a pr oce dur al de fau lt, it ad dre ssed this c laim on t he m erits. Long file d a reply , in whic h he urged the co urt to ad dress h is cl ai ms notw ithstand ing h is state pr oced ural defaul ts. Thereafter, there was no activi ty on the docket untilJanu a ry 2003, when Lon g’s ca se w as reas signe d to a new United Stat es District J udge fo llow in g the ori ginal j udge’s re tirement. I n May 2003, the M agistrate J udge fil ed a Report and Recommendati on, in whic h she recom men ded th at the h abea s petition be de nied a s untim ely under 28 U. S. C. § 2244(d)(1) , which i s set f orth i n the margi n, and which provides that a

petit ion be fi led withi n one year of the date
on w hich a judg men t beco mes final. 3exercise of due diligence. 28 U.S.C. § 2244(d) (West Supp. 2004).
4 Burns held that, where a judgment became final on or before April24, 1996, the effective date of AEDPA, the petitioner had unti l April 23, 19 97, t o file a feder al hab eas cor pus pe titi on cha llengi ng h i s conviction. As noted a

bove, L ong’s judgment b ecame f

inal prior to April 24, 1996.
5 TheMagist rate J udge concluded that Long’ s post-conviction petition was pending as of August 10, 1995 when ne w couns el wa s appointedto repre sent him, a nd thus the

statute of

limitatio ns did no t begin to run onApril 24, 1996 when AEDPA took effect. L ong does not appear to have f il ed pro s e a petition for post-conviction relie f prior to
new counsel being appointed, or even after new counsel was appointed,
5 In deciding the timeli ness issue unde r 28 U .S.C. § 224 4(d), the Magistrate Judge reasoned t hat Long’s convi ction be came final 90 day s a ft erMarc h 6, 199 5, when th e Pe nns y lv ani a Su pr eme Cou rt den ied a lloca tur, see 28 U .S.C. § 224 4(d)(1 )(A); Swa rtz v. Meyers , 204 F.3d 417, 421 (3d Cir. 2000) (judgment be comes final after ti me for seeking di scretionaryreview expi res when discretionary review is not so ugh t); Kapral v. Unit ed State s , 166 F.3d 565, 575 (3d Cir . 1999) ( if defendant does notfile certiorari petit ion, judgment of convi ction be comes finalwhen time for seeking certio r ari review expir es), and thus before the An tit errorism and Effecti ve Death Penalty Act ( “AEDP A”) went into effect on Apri l 24, 1996. Pursuant to Bur ns v. M orto n , 13 4 F.3d 109 , 111 ( 3d C ir. 1998 ), Lon g had until Ap ril 23, 19 97, to file his habeas petit

ion. 4 Section224 4( d) (2 ) p ro vi des , h owev er , t hat “[t ]h e t ime during which a properl y fi led appl ication for St ate post -convict ion
or other col late ral review with res pect t o the pert inent j udgment or claim is pen ding shallnot be count ed toward anyperiod of limi tati on und er th is su bse ction .” 28 U. S. C. § 2244(d)(2). Thus, the stat ute was tol led when Long file d his fi rst s tate post-c onvicti on petit ion on December 27, 1996, st arted to run again on August 12, 1998, when th e s ta te sup re me court deni ed all owance of appeal of that petit ion , see Stoke s v. Dis tri ct Attorney of Countyof Phila delph ia , 247 F.3d 539, 542 (3d Cir. 2001) (time during whic h state prisoner m ay file certiorari petit ion from deni al of

state po stconviction petit

ion does not tol l st atute of limi tati ons), and expired
we ll before he fil ed his fede ral habe as peti tion on April 16, 2002. 5andcounsel d idnot file a

petition on Long’s behalf until December 27, 1996. It thu s seems tha

t, becau se a petition was not pending , the statu te began to runon A pril 24, 1996 when AEDPA went into effect, ran for about eight months, and then was tolled on December 27, 1996. W hether Long had four months left in which to f ile his feder al habea s petition when the statute began to run ag ain on Aug

ust 12, 199 8, or a full twelvemonths, hisfiling of his federal habeas petition on April 16, 2002 was late, and Long

has conc eded tha

t his habe as petition was untim ely filed.
6 The state ha beas petition had n o eff ect on tolli ng, bec ause an untim ely state post- conviction peti tion i s not “properl y fi led” for purposes of to lling , Merritt v. Blai ne , 326 F.3d 157, 165- 66 ( 3d C ir.), cert. denied , 124 S. Ct. 317 (2003), and, i n any eve n t, th e limi tati ons period had a lready run when it was fi led. In addition,
no other statutory excepti ons appli ed, and there was no basis under
our decisi ons in Miller v . New Je rsey Stat e Dep’t of Corr. , 145 F.3d 616, 618-19 (3d Cir . 199 8), Fahy v. Horn , 240 F.3d 239, 244- 45 (3d Cir. 200 1), or Johnson v. Hendricks , 314 F.3d 159, 162- 63 (3d Cir. 2002) , ce rt. denied , 538 U .S. 102 2 (20 03), fo r equ itable toll ing. The Mag istrate Judge the n addresse d the issue w e are required to deci de in this appeal. She noted that the Co mm onw ealth had not raise d the st atute of limi tati ons as an affirmative defense, which presented the questi on whether the defense was waived under our deci sion i n Ro binson v . Johnson , 313 F.3d 128. Rel yi ng on Aco sta v. Art uz , 221 F.3d 117, 123 (2d Cir. 2000), s he concluded t hat a feder al magist

rate j ud ge cou ld
r aise the habeas corpus st atute of limi tati ons iss ue sua spont e because it i mplicated values “ beyond t he concerns of t

he par ties.” She cit ed a footnot e in our dec isi on in Banks v. Horn , 271 F. 3 d 527, 533 n.4 ( 3d C ir. 20 01) , rev’d on other grounds , 536 U.S. 266 (2002), wh ic h preda tes Robinson , wherein we not ed, i n reli ance upon Aco sta , among other cases , tha t a cou rt of ap peals c ould review the AEDPA stat ute of l imit ations issue sua s pon te e v en if it were not properl y before the court. She fur ther obs erved that we stre ssed in Robinson that there i s more tha n one reason why affirmative defe nses s hou ld be rais ed as early as is practi cable, and
one of them is to promote judi cial economy, to which she c learl y belie ved she was contributi ng. Long, wh o w as no t rep resent ed by couns el in t he District Co urt, timel y fi led obje ctions , in which he argue d that the cou rt7 shou ld apply the misca rriage o f justice exce ptio n t o the AEDPA statute of limi tati ons; i n his cas e the putati ve miscarriage of j usti ce was a fundamental ly unfai r tri al. Importantly for our purposes here, the C om mo nw ealth filed a n ans we r to the obje ctions a week late r (and withi n three weeks of t he f ilin g of the Report

and Re c ommendation) in which it endorsed the Ma gistrate Judge’s view that the habe as pe tition w as un timely, stating : “ [T he M agistrate Judge] det ermined that the Petition was barr ed by t he one-y ear statute of l imi ta ti on p ro vi dedund er28 U. S. C. § 2244 (d). Res pon dents submit t

hat [the Magistrate Judge] was correctfor the
re asons set forth in the fo llowing p aragraph s.” Respo ndent’s Answer to Petitioner’s Ob jection s to the M agistrate Judge’s R eport and Rec om men dation , at ¶ 2. The Commonwealth also expressed its agree men t with th e M agistrate Judg e’s an alysis as it relate d to calcul ating when the habeas petiti on sho uld hav e be en f iled, id. at ¶¶ 3-6, and then aske d the Dist rict Court in t

he finalunnumbered paragraphof this answer to di smiss t he peti tion a s u nt im ely, stating: “Wh ere fore, Responde nts re spectful ly request your Ho nora ble Co urt to ov errule P etitioner ’s Ob jection s and to ado pt [the M agis trate Jud ge’ s] R epo rt an d R eco mm end ation .” The Distri ct Court di d jus t that

. In a Memorandum Order entere d on June 4, 2003, the Dist rict Court denie d the habeas petit ion as un timely and ad opted the R eport and Recommendation as the O pinion of the Co urt. Th e cou rt stated: The magistr ate j udge’s re port and recommendation, file d May 12, 2003, recommen ded t hat the Petition be denie d as u ntime ly and tha t a certif icat e of appe alabi lity be denied. Petitioner has file d objections to the report and recommendat io n in which he asserts that he has demonstr ated cause for his proc edural de fault

and prejud ice th eref rom
. . . . The magistr ate j udge recommended that the petit ion be di smiss ed be caus e it wa s not tim ely filed w ith i n the one-year limitations period p rovided f or u nde r the Antiter

rori sm and Eff ective De ath Penalty Act of 1996 (AEDPA ), 28 U.S. C. § 22 44 (d). The mag istrate judge did not fi nd any proc edur al def ault
so the “caus e and prej udice” st andard does not apply to this case . . . . I n her repo rt and recommendati on the magistr ate j udge discus sed the doct rine of eq uitab le toll ing which can t oll t he running of t

he AEDPA statute o f limitatio ns, an d pro perly6 We than k court-appointed counsel for his able oral presentation and briefs, which were of g reat assistance.
8 determi ned that pe titionerhas not shown a basis f or toll ing. After d e n ovo review of the pleadi ngs and docu men ts in th e c as e, to ge th erwi th the objections to [the] repor t and reco mm endation . . . IT IS HEREBY ORD ERED that t he Petit ion be deni ed as
un tim ely. Memorandum Order of the Dis tri ct Court, at 1-3 (citation om itted). Long ap pe al ed , and w e ap pointed c ounsel and gr anted a certifica te of a ppea lability as follo ws: [W]hetherthe res pondent t o a habeas petition must raise the st atute of limi tati ons defen se, 28 U.S .C. § 2244(d), in the answer to the habeas petit ion or be deemed to have waivedit. Robinson v. Johnson , 313 F.3d 128 (3d Cir. 2002). Put anothe r wa y , ma y the Ma gistrate Judge in a R eport and Recommendation
re comm end dismissal on the basis of unti meliness when the res pondent has fa iled to rais e t he defense in its an sw er, id. , and m ay the state th ereaft er raise the stat ut e of l imit ations defense i n a supplement al pleadi ng to avoid be ing deemed to have waived the defense, [and] wh ether th e resp ondent here may be deemed t o have rai sed the s tatute of li mitations defense in it s Answer to Peti tioner ’s Objectio ns to the Mag istrate Ju dge’s Repo rt and Reco mme ndation. Order o f Cou rt (Feb. 20, 200 4). 6 We have juri sdiction pursuant to 28 U .S.C . § 12 91. The Distri ct Court’s a na ly sis of t he stat ute of l imit ations issue, which in Long’s case does not inv olve d isputed facts, is subject to plena ry re vi ew, see S wa rtz v. Meyers , 204 F.3d at 419, except t o the ext ent that the D istric t Cou rt implie dly perm itted the C om mo nw ealth to amend its answer. That decisi on is re viewed for an abuseof disc retio n. See Heyl & Patterson Int ’l, Inc. v. F.D. Rich Housing of Virgin Islands, Inc ., 663 F.2 d 41 9, 42 5 (3 d C ir. 19 81)

.

II. The Amendm ent to t he Answer

A. Robinson v. Johnson9 Our discuss ion must nece ssari ly begin with Robinson v. Johnson , supra
. Robinson, who se first federalhabeas petiti on was dismis sed for failure to exhau st st ate re medies, file d a second federalhab eas petit ion , w hi ch was referred to a magis trate judge who ordered a resp onsive pl eading. The Comm onwealth fi led a letter response, arguing that t he peti tion s hould be tr ansferr ed to the court of a ppeals for authorization because it was a s uccessi ve petit ion. 313 F. 3d a t 1 32. The m agi stra te ju dge re comm en ded d enyi ng the pe tition on that ba sis, and the distric t court a ccep te d the m agis trate jud ge's r eco mm end ation

. Robinson appealed, and we orde red the Co mm onw ealth to show cau se why th e or der di smi ssing th e peti tion s hould not be
sum marily revers ed in light of Christy v. Horn , 115 F.3d201, 208 (3d Cir. 1997) (where federa l habeas pe tition has been di smissed withoutprejudi ce for fai lure to e xhaust st ate re medies, petit ioner need not ap ply to cou rt of ap peals for authorization to fi le a sec ond habeas action .) The Co mm onw ealth f iled a lette r brief, in whi ch it conceded that Robi nson’s se cond federalhabeas petiti on was not
succ essive

. The Comm onwealth di d not pres ent anyalte rnati ve legal grounds for affi rming the district co urt. W e then sum marily
revers ed and remanded. On remand, Robins on filed a motion t o strike his original petit ion and for permiss ion to fi le an amended petiti on. The Co mm onw ealth then filed a plea ding, asserting fo r the firs t t ime that Robinson’s s econd federalhabeas petiti on was time-bar red by AE DP A’s statute o f limitati ons , 2 8 U.S .C. § 224 4(d)(1). Robinson, in rebut

tal, argued that the Commonwealth' s stat ute of limi tati ons defense was unt ime ly. The magistr ate j udge endorsed the Co mm onw ealth’s a rgum ent, and the d istrict court adopted the mag istrate judge’s Report and Reco mm en da tio n o ve r R ob in so n's
ren ewed objec tion tha t the C om mo nw ealth h ad w aived its limi tati ons defense. On appe al, we held f irst that, be caus e th e statu te of limi tati ons is no t juris dicti ona l in n atur e, see Miller v . New Jersey State Dep’t of Corr. , 145 F.3 d at 617-18, t he state may waive t

he defense. Robinson , 313 F.3 d at 1 34. Because the Feder al Rules of Civil Proced ure are applic able t o habeas petiti ons to the extent that theyare notin co ns is te ntwit h the ha be as ru le s, we then consi dered whether Federal R ule of C ivil Procedure 8(c) r equires that a defendantplead an affirmative defense, such as a st at ute o f limitations, in its a nsw er. Robinson , 31 3 F

. 3d at 13 4. We explai ned: “Par ties are g enera lly required to asse rt affir mati ve10 defens es early

in li tigat ion, s o theymay be rul ed upon, prej udice may be avoided, and judic ial resources may be conse rved. Habeas proceedi ngs are no excepti on.” Id. We furtheremphasized: “The purpose of requiring the d efe ndant to pl ead avail able affi rmative defenses in his answer i s to avoi d surpri se and undue prej udice by providi ng the pla intiff w ith notic e and th e opp ortun ity to dem onstra te why the aff irmati ve defense shoul d not succee d

. Id. at 134-35 (ci ting Blonder-Tongue Labs. , Inc. v. Univ. of Ill . Found. , 402 U.S . 313 , 350 (19 71) ). Nevertheless, we expressly held that “a l imitati ons defense does not nec essa rily hav e to b e rais ed in the a nsw er.” Id. at 135. W e survey ed severalcases i nvolving Feder al Rule of Civi l Proced ure 15(a) andamen dmen ts to answe rs. In Venters v. Cit y of Delphi , 123 F .3d 956, 96 7-69 (7th C ir. 199 7), for example, the Seve nt h Circuit

held that the de fendant had waived t he stat ute of limi tati ons defense, and that the dis tri ct court

ha d a buse d its discr etionin permitting an a mend ment to the a nswe r. The cou rt explai ned that, if the rel evance of a statute of limit ations defense becomes appa rent on ly after disc over y, the defe ndan t shou ld pr omp tly seek leave of court to amend the answer and a d istric t court shou ld grant t

he motion, but that

the dis tri ct court

should not countenance an eleventh-hourinvocation of the defense, and that rais ing the st atute of limi tati ons for the firs t ti me in a reply memorandum in support of a motion for

summary j udgment was an impe rmissib le eleventh-hour i nvoca tion. T he parties had
co mp lete d an ex haus tive disc over y proces s, trial wa s a m onth
aw ay, and the pl ainti ff had been denie d the o ppo rtunit y t o file a su rre pl y. Af t er discuss ing Venters and other c ases, the panel explai ned that

all of the cases surveyed reflected “att empts by the
cour ts to keep the consi derati on of affirmative defe nses consi stent wi th at le ast t

he purpose, if not ne cessarily the language, of

Rul e 8(c ).” Robinson , 313 F.3d at 137. Thus, a lthough an a ffirmative defense need not b e raised in the answ er, it mus t be raise d “as early
as p racti cab le” th erea fter

. Id. We reaso ned th at aff irmati v e defenses must be rais ed as early as is pr acticab le, not o nly to avo id prejud ice to a plai ntiff

or peti tioner , but a lso t o promote judi cial
ec on om y. We wrote: “If a par ty has a succes sful affirmative defense, rais ing that

defense as earlyas possibl e, and permitt ing a
c ourt to rul e on it, may te rminate the proce edings at that poin t with out wasting pr ecious l egal and j udicia l res ources. ” I d . W e then sta te d that a ffirmative defens es under AEDPA should be11 treated th e s ame as affir mative defe nses in other c ontex ts, and, “ if not plead ed in th e ans we r, they mu st be ra ised at th e earl iest practi cable moment thereaft er.” Id. Applyi ng this rule, w e w ent on to ho ld th at the Com mon wealth’s assertio n of its affirm ative d efen se ofthe statu te of limi tati ons was not untimel y. We opined that t he Com mon wealth’s letter response to Robinson' s habeas petiti on seeking transf er to the court of appeals was equivale nt to a motion to dismis s for l ack of subje ct matter jurisdi ction. A mot ion t o dismiss for lac k of subject matte r jurisdic tion is a favored defens e, id. at 139 (c it

in g Fe d. R. Ci v. P. 12( h) ), an d we opined that: ( 1) the Co mm onw ealth did not have to include the st atute of limi tati ons defense in it s origi nal moti on to tr ansfer , and wa s not re quired to raise the defens e when the case was on appeal for the fi rst t

ime, id. at 139-40; and ( 2) the normal rul es reg arding t he waiver of defenses under Fed. R. Civ. P. 8( c) did n ot app ly until the thre shold issue of su ccess ivene ss w as reso lved. W e then sta ted tha t the defense was not waived beca use th e Co mm onw ealth ra ised it in its first p lead ing on r em and

. Id. at 14 1. This re ferenc e t o t he “ fi rs t” pl ead in g on re ma nd was d escri ptive of the proc edural c ircumst ances of Robinson’ s cas e , i.e., a con structi on of o ur holdi ng that t he AEDP A statute of limi tati ons defense should, if not pl eaded in the answ er, be rais ed at the earlies t pract

icabl e, or pos sibl e, or fe asibl e, moment thereafter. Robinson , 313 F .3d at 137

. What the earliest practic able or po ssible or fea sible moment after an answer has been file d mightbe in another c ase where the proceduralcircumst ances were differ ent we necessaril y l eft open.

B. FederalRule of CivilProcedure 15( a): Pr ejudic e and the

Role of Delay and Inadvertence

We turn to L ong ’s arg um ents on a ppe al. L on g concedes that Robinson does not im pose an ab solute r equire men t th at the AEDPA statute o f limitatio ns defen se be asserted in the answ er. How ever, he argues t

hat he suffered undue prejudice as a resul t of the delayin rai sing the defense, and that the C om mo nw ealth sh ould have a compelling reaso n for fa ili ng to asse rt t he defense i n the
answ er. Lon g arg ues th at Robinson was not mean t to grant extra time to those litigants w ho f ail to assert the defens e in the answer as a resu lt of i nad ver tenc e. Long reli es on a decisi on fro m th e Se con d C ircu it, Strauss12 v. Do ugla s Airc raft C o. , 404 F .2d 1152 , 1156-57 (2d Cir. 196 8), which we cited i n Ro binson , 313 F.3d at 136. In Strauss , the dist rict court gr anted the d efen dant le ave to ame nd th e ans we r to ple ad the st atute of limi tati ons defense. On appeal the cou r t
revers ed, hold ing t hat, since t he complaint

had appris ed the defendantof an impli ed warrant y cl ai m, and since t he defendant from prior e xper ience shou ld hav e bee n aw are of th e choice of forum issue i nherent i n the case , the limi tati ons defense sho uld have been ra is ed i n the o ri gi nalans wer , o r a t amin imu m, within a
reaso nable tim e th ereafter. The co urt found that the defen dant’s conductin rai sing the defens e four y ears l ate was inexcusabl e, and that the pla intiff w as sub stantially prejud iced in that, had the statu te been timel y pl eaded, he m ighthave been able to bri ng another acti on i n a juri sdiction where his suit would not have been timebarred. We do not d oub t that Strauss correc tly states the law , but it provides only general supp ort for Long’s ar gument. Fi rst, it does not hold that inadvertence on the part of a defendant establ ish e s undue prejudice suf ficient to deny an am endm ent unde r Rule 15 (a). Se cond, the le ngth of the delayin Strauss was extremel y l ong. Third, and perhaps most important

of all , the plaint

iff suffe red actualprejudi ce in that his acti on might not have been time-barred in another j urisdi ction ha d he known about the statu te of limi tati ons defe nse so oner. W ith respect to the latter basis for Strauss ’s hold in g, we note that

Long’s habeas pet

iti on unquesti onablywas untim ely und er 2 8 U .S.C . § 2244(d ). Thus he suffered no prejudic e of the type discu ssed in Strauss . The frust rated e xpectation of not having an un timel y habea s petition heard on th e me rits does not establishprejudi ce suffic ient to defeat an amen dmen t to an answ er. The delay he re pres ents a c loser q uestion . As L ong poin ts out, the Commonw ea lth took 14 months to as sert the defens e. Long file d his habe as pe tit ion in Apri l 2002, a nd the Co mm onw ealth did not r aise t he statute o f limitatio ns de fens e until June 200 3. The p as sa ge o f t ime facto rs into the anal ysi s of whether
a plaint iff has sufferedprejudi ce by adelayin amending an ans wer to asse rt an aff irma tive d efe nse
. See Robinson , 313 F.3d at 1 36 (citing Venters , 123 F .3d at 9 68-6 9; Strauss, 404 F.2d at 1155- 56; Hayden v. Ford Motor Co. , 497 F.2d 1292, 12 95 (6th C ir. 1974); and Int’ l Bhd. of

Boilermakers, Local 1603 v. Trans ue & Wi ll ia ms Corp. , 879 F.2d 13 88, 1396 n .3 (6t h Cir. 1989) ). We conclude, ho weve r, that t

he Commonw ealth cannot fai rlybe said to have und uly del ayed i n rais ing the AEDPA statute of limi tati ons13 def ens e. The Commonw ealth answered the c omplai nt o ne m onth after being ordered to do so, and r aise d the st atute of limi tati ons defe nse o ne w eek a fter L ong filed h is objections and t hree weeks after the M agistrate Judge fil ed her Report and Recommendation. The in ac tiv ity on the docket from July2002 untilJanuary2003 when a new D istrict Judge wa s assigned, an d again fro m Janu ary 2003 untilMay 200 3 wh en the M agistrate Judge f iled her Re port and Reco mm endation, is not attri butab le to the Co mm onw ealth under the circ um stance s; indee d, in a case referre d to a m agistrate judge, once a h abe as petitio n i s f il ed a nd a nswe re d, it

se ems reaso nable for the parti es to wait f or a Report and Recommendation to be fi led befor e engaging i n further pleadi ng. With respect

to the que sti on of inadve rte nce, th e Co mm onw ealth concedes in its brief on appeal that it made a mistake i n not rai sing the defense i n the answer. It ar gues, however, that i t in ef fect made
a timel y and pr oper amendment of i ts answer i n acc ordance w ith Fe deral Rule of Procedur e 15(a), and that the Dist rict Cou rt, i n eff ect, a llow ed th e am end me nt in its dis creti on. W e ag ree. The Commonw ealth r e lies on Block v. Fi rst Bl ood Associates , 988 F. 2d 344 (2d Cir. 1993), al so from the Second Circu it, where the defendant s fir st raised a s tatute of limita tions defense in a motion for sum m ary judgment four year s after

the comp laint

w as fil ed. The dis tri ct court treated the moti on for
summ ary j udg me nt as a moti on to amend the pl eadings and dismis sed the action as ti me-barred. On appeal the S econ d C ircuit affirmed, h olding t

hat the re was no showing of prej udice t o the plaint iff and no ba d faith on t he part of the defend ant. The co urt noted in particular the co mplete a bsence of bad fai th and the fact that the sui t “was unti mely on t he day i t was commenced.” Id. at 351. The court rejec ted the plaint iff’s argument that his frustrated expectat ions cons titu ted undue pre judice suffici ent to ove rcom e th e Ru le 15 (a) rig ht to am end a ple adin g. Id. Blockelaborates a stand ard fo r judg ing p rejudic e that is
com patible wit h Rob in son , 313 F.3d at 136-37, and Rul e 15(a) juri sprudence in this C ircuit. Th e Sec ond Circu it reason ed tha t, ge ne ra lly, the longe r the unexpl aine d delay , the less t he plai ntiff must show in terms of prejudic e. 988 F.2d at 350 ( citi ng Advocat
v. Nexus Indus. , Inc. , 497 F . Supp. 32 8, 331 (D . Del. 1980 )). In determi ning what consti tutes prejudi ce, the Seco nd C ircuit considers “whet her the assertio n of the ne w c laim w ould : (i) require the opponent

to expend si gnific ant addi tionalresourc es to14 conductdiscovery andprepare for trial; (ii ) signi ficantly delaythe resol ution of

the dis pute; or

(ii i) pr event the plai ntiff from bringi ng a timel y act

ion in anot

her jurisdi ction. ” Id. (internal quotati ons and citations omitt ed). The court als o emphasized the absenc e of bad fa ith. We end orse the Second Circuit approach. None of these consider ations are pres ent in Long’ s case. He was not for ced to undertake discovery or

additi onal dis covery , and he coul d not have broughthis habeas acti on in anothe r jurisdi ction. Moreover, the Com mon wealth’s ame ndm ent did not delay r esolution of the case and was not the product of bad fai th. Ru le 15(a) r equires that l eave to amend t he pleadi ngs be grantedfreel y “when jus tice so requi res. ” Fed. R. Civ. Pro. 15(a). We have held th at mo tions to ame nd p leadin gs sh ould be libe rally granted. See, e.g. , Adams v. Gould Inc ., 739 F.2d 858, 867- 68 (3d Cir. 1984) (“[U]nder

the liberal pleadi ng philos ophy of the feder al rules as in cor

por at ed i n Rul e 15 (a ), an a me ndmen t shoul d be allowed whenever ther e has not bee n undue delay , bad faith on the part of the [m ovant], or prejudice to the [nonmovant] as a resul t 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, ab s ent undu e or su bstantial prejudic e, an amendment s hould be al lowed under Rule 15(a) unl ess ‘deni al [can] be grounded in ba d faith or dilatory mo tive, truly undue or unexplained delay , repeated failure to cure d eficien cy by ame ndm ents prev iously allow ed or futility of
amen dmen t.’” Id. at 1196 (quoti ng Bechtel v . Robinson , 886 F.2d 644, 652 -53 (3d C ir. 1989) (emp hasis in original). The plain te rms of R ul e 15(a) do not discriminat e on the basi s of type of pleadi ng. The liber al ri ght to amend exten ds t o an answer to t he
c om plaint. He yl & P atter son Int’l, Inc. v. F.D. Rich Hous ing o f Virg in Islands, Inc. V. Governmentof the Vi rgin Is lands , 663 F.2d at 425. In Heyl , the plaint iff fi led a bre ach of contr actacti on and the gov ernm ent, in an amended answer, pl eaded one speci fic type of ill egali ty as an affi rmativedefense. The government’s pretrial statement conta ined a n asse rtion of the sam e spe cific ille gal ity defense. In it s opening statement at t rial , however, the government
ass ertedthre e ad ditio nal s pec ific ill ega lity def ens es. Judg ment wa s entere d in its favor. On appealthe plainti ff argued that the governmenthad waived the three add iti onal il legal ity defenses, and that the dist rict court i mproperly

treated the government’s openi ng statement at tria l as a n im plied am end me nt to the a nsw er. We disagr eed, holding first that, although “ procedure[s ] for obt aining leave to amen d pl ead in gs s etforth in Rul e 8 o f the F ed. R. C iv. P.15 shou ld general ly be heeded,

. . . rigi d adherence t o formali ties and techni cali ties mu st give w ay befo re the p olicies u nder lying Ru le 15.” Id. at 426 . Moreover, we did not bel ieve that the government had to sup ply a com pelling reaso n fo r its delay in a sserti ng the three additi onal defens es in vi ew of the absence of prejudic e to the plain tiff. Id. at 42 6-2 7. We believ e that He yl is instruc tive he re for its treat ment of t he questi on of delayas it relates to t

he large r iss ue of prej ud ice , and for its rejec tion of t

he argument t

hat a respondent

or defendant must supplya compel ling reason for t he delayeven if there is no prejudi ce. Such a rule, if adopt ed, would certainl y run counter to the well-es tabli she d rule tha t ame ndm ents sh ould be libe rally allowed. Heyl also i s inst ructi ve for what i t tea ches about flexib ility and the formalities of R ule 15 (a), both with respe ct to how an amendment is advanc ed by a r espondent or defendant, and with respe ct to ho w it i s giv en ef fect b y a court. C onsiste nt w ith Heyl , we agree that, altho ugh the C om mo nw ealth d id n ot rigidly
a dhere to the f

ormalit ies of s eeking l eave to amend, it i n effe c t made a timel y and pr oper amendment of i ts answer. In addition, the Distri ct Court, although i t did not expressl y st ate that it

was allow in g the answer t o be amended, i n effect, allowed the
amen dment in it s discretion by disposi ng of the petiti on on the basis of un timeliness und er 28 U .S.C. § 224 4(d).

C. Sum mary
Rob in son , 313 F.3d at 136- 37, the Rule 15(a) c ases discuss ed ther ein, a nd o ur R ule 1 5(a ) juris pru den ce, see, e. g. , Heyl , 663 F.2d at 426- 27, counselthat, whether a ha beas peti tioner has be en prej udiced bythe ass erti on of the AEDPA stat ute of limi tati ons defens e afteran an swe r has b een f iled is the ultima te issue, and tha t prej ud ice turns on such fa ctors as how late i n the proceedi ngs the defens e was rais ed, whether the petit ioner hadan opp ortun ity to res pond, and whether the res pondent act ed in bad faith. See also Ada ms , 739 F .3d at 8 67-6 8; Lundy , 34 F.3d at 1196. Delay is re late d to prej udice but was not a pro ble m here, and in a dvertenc e does not equalbad faith. We hold that the Co mm onw ealth timel y r ai sed the habeas corpus st atute of limi tati ons defense, 28 U.S.C. § 2244(d) , byexpressl y end ors ing the Magistrate Judg e’s an aly sis of t he timel iness i ssue, and that Long was not prej udice d thereb y. The D istrict Co urt imp liedly approved of the Commonw ealth’s “amendment” to the answer by16 denyi ng the pe tition as u ntime ly, and did not ab use its d iscretion in doing so.

III. The Sua Spo nte Flagging of the Statute of Limitati ons

Issue bythe Magistr ate Judge

The questi on that remains is the effect of the M agistrate Judge’s flaggi ng of the st atute of limi tati ons defense once an answer had been filed, and of the Common wealth’s response thereto. Ou r answ er to th at q ue sti on w as fo re sh ad ow ed by Banks
v. Horn , 271 F.3d 527 , a dea th pen alty case which touched prelim inarily on the AED PA statut e of li mitations befor e reachi ng the merits o f the p etitioner ’s hab eas cla ims. In the fo otno te cite d by the Magistr ate Judge, we expressed the vie w that a court of appe als could addre ss the AEDPA statute of li mitations defense
sua spon te even if the habeas respondent had waived the i ssue on appe al. W e w rote: Even if not rai sed, we beli eve we could consi der this issue sua sponte . “While ordinari ly we do not take note of errors not cal led to the attention of the Cou rt of A pp ea ls n or pr op er ly raise d here, t hat rul e is not withoutex cep tion. T he C ourt h as ‘the pow er to notice a “plain error” though it is not assi gne d or spe cifie d,’

. . . ‘In exc eptional cir cumstances, espe cially in cri minal cas es, appel late courts , in t he pub lic interest, may, of the ir own motion, notice
e rrors to w hich no e xce ptio n ha s be en ta ken , i f th e errors are ob viou s, or if th ey otherw ise serio usly affectthe fai rness, integrity or publi c reputation of judici al proceedi ngs.’ ” Silber [ v. UnitedStates ], 370 U.S. [717,] 71 7-18, 82 S. Ct. 1287, 8 L. Ed.2d 798 [(1962 )] (inte rna l citati ons om itted ). See also A c osta
v. Artuz , 221 F.3d 117 (2d C ir. 2000 ); Kiser v. Johnson , 163 F.3d 326 (5th C ir. 1999). Id. at 53 3 n.4

. T he Commonw ealth had argued unsu ccessful ly in the dist rict court t hat Bank’s fe deral habeas peti tion was unt ime ly. Id. at 53 2. On appe al Ba nks a rgue d that th e time liness o f his habeas petit ion wa s not b efore us be caus e th e Co mmonw ealth had not chall enged the district

court’ s ruli ng in it s counter statement of issues, and had fa iled to discuss the issue in its brief except fo r a concluso ry referenc e to it s position in a footnote . We disagr eed,17 belie ving that we shoul d examine the i ssue “in light of the Dist

rict Cou rt’s carefulanaly sis of t his i ssue and i ts i mpor ta nce, and because the government did make reference to the issue albei t in a foo tn ote.” Id. at

533 . T he fo ot note q uoted ab ove fo ll owe d. W e then we nt on to ho ld that th e D istrict Co urt app ropria te ly ap plied equita ble principles to toll the one-year AE DPA statute of limita tion s req uire me nt. Id. at 534. Thus we observed prior

to Robinson that

the AEDPA statute of limitation s is an im portan t issue, th e rais ing of which may not
n ecess arily be left

completel y t o the st ate. The Banks fo otnot e refers to publi c inte rest

polici es underly ing the AEDPA stat ute of limi tati on s, in te rms and by its reli ance on Acosta v. Artuz , 221 F.3d 117, a deci sion al so cited by t he Magistrate Judge in t his cas e. In Art uz , wher e a respons ive ple ading had not yet been fil ed, the Second Circuit

held that, e ven thou gh th e statute of lim itations is
an affirmative defense, a dist rict court on i ts own motion mayraise the time bar , becauseAED PA’s stat ute of l imit ations “impl ica tes values be y ondth e c onc er ns of th e p arti es ” h av in g t o do wi th the fina lity of c onv ictio ns. 221 F.2d at 123. The court expl ained: The AED PA statut e of li mitation promot e s judi cial effici ency and conservat ion of j u dicial res ources, safeguards the accur acy of state cour t judgm ents by requiring resolu tion of cons titu tional questi ons wh ile the record i s fresh, and lends fi nalit y to state cou r t judgments wit

hin a rea sonable time. Like the other proce dur al bars to hab eas review of state court j udgments, the statu te of lim itation im plicate s th e interests of b oth the fede ral and state courts , as we ll
as the interests of society, and theref ore it is not inapp ropria te for the cour t, on it s ow n m otion, to invoke the doctri ne. Id. (interna l quo tations a nd cita tions o mitted ). We agree . Wh ile civil in nature, habeas corpus cases ar e differ ent from ordin ary civil cases where onl y the inte rest s of the parties are invol ved. In Artuz , the Se cond Circu it reason ed tha t the au thority o f
a dist rict judge to raise procedural defenses sua spon te is consistent with Rule 4 of

the rul es governing habe as corpus, which gives t he dist rict court t he power to revi ew and dismis s habeas petit ions pri or to any re spo nsiv e ple adin g by th e sta te. 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 C ir. 2001); Kiser , 163 F .3d 326, 32 8-29 (5th C ir. 1999), and is inst ructi ve, but7 For this reason, the non-federal habeas cases cited by Long holding that the s tatute o f limitations may not be raised sua sponteare inapposite.
8 Habeas Rule 5, for example, has been amended, e ffectiv e December

1, 2004, to provide that the an swer sha ll state “whether any clai min the pet

ition is bar

red by a failur e to exhaus t state re

me dies, a proceduralbar, non-retroactivity , or a statut e of limitations,” and thus treatsthe AEDPA statute of limitations like other procedural habeas
18 it is not n ecess arily dispositi ve here because a responsi ve pleadi ng wa s file d by the Commonw ealth which omitt ed the st at ute o f limi tati ons defense . The issue in L ong’s case is whether the court
can alert the res pondent to t

he defense, and whetherthe answer ca n be ame nded cons istent w ith Ru le 15(a) and Robinson , 313 F.3d at 136-37. We think it plain t

hat a federal magistrat e judge may raise the AE DP A sta tute of limit ati ons iss ue in a Report and Recommendation after

an answer has been fil ed. In Granberry v. Greer , 481 U.S. 129, 134-35 (1987), the Supreme Court held that
a court has the dis creti on, in t he inte rest s of comity

and fed er al is m, to de ci de whe th erju stic e wo u ld be better s erved byinsi sti ng that a claim be fu lly exhau sted o r by rejectin g it if it i s plai nly lacki ng in merit. It i s now widely recogniz ed that judges have di scretion to r aise pro ced ura l issu es in hab eas cas es. See, e. g. , Sweger v. Chesney , 294 F .3d 506, 52 0-21 (3d Cir. 2002 ) ( whe ther c laim is barreddue to proce dural def ault maybe considered su a spon te ), cert. denied , 538 U.S. 1002 (200 3); Smith v. Horn , 120 F.3d 400, 407 (3d Cir. 1997) (di scretion to cons ider exhausti on ques tio n afforded by Granberry ). F or on e thing , judicial e cono my is promoted when a magistr ate j udge identifie s the issue e arlyin the
course of a case. The limit ations issue he re was flagged by th e M agistrate Judge as part of the preli minaryconsider ation of th e ma tter. See 28 U .S.C . § 63 6(b )(1). Most impo rtantl y, how ever, rais ing procedural habea s iss ues furthers the interest s of comity and federalis m
. See S weger , 294 F.3d at 521 ; Artuz , 221 F.2d at 123. We have stated that , because t hese concerns are so import ant, it i s not excl usivel y up to th e parti es to deci de whether habeas proceduralissues should be r aised
or w aive d. See, e. g. , Szuchon v. Lehman , 273 F.3d 299, 321 n.13 (3d Cir. 2001). 7 Because we see no diffe rence between the habeas corpus statute of li mitations and other habeas procedural iss ues, 8issues.
19 we hold that o ur dec isi on in Robinson , 313 F.3d 128, does not preventa ma gi st

ra te ju dge fr om r ai si ng t he AEDPA sta tute of limi tati ons defense sua spon te even after an answer has been fil ed. There are deci sions contra . The Sixth Circuit ha s held i n a 2-1 decisio n that th e state waived the st atute of limi tati ons defense by failing to raise it in th e an sw er. Scott v

. Collins , 286 F.3d 923 (6th Cir. 20 02). T he co urt reas oned that a d istrict cou rt’s pow er to
sua spon te rais e the AEDPA statute of l imi tations is lim ited to habeas Rule 4, and that habeas R u le 4 appl ies onl y before a responsi ve pleadi ng is fi led. Therefore, the court ’s actions amounted to an im perm issible cu ring o f th e r espond ent’s waiv er. Id. at 929 -30. T he N inth C ircuit recen tly joined the Sixth Circu it in Nardi v. Stewart , 354 F.3d 1134 (9 th Cir. 2004 ). The cou rt agreed tha t a dis tri ct court ’s authority t o rais e the defens e sua spon te evaporat es once a responsi ve pleadi ng is file d. Id. at 1141- 42. The Scott and Na rdi decisions are atodds with Robinson and our Rule 15(a) juri sprudence, which do not require that affirmative defenses be pl ed in the firs t res ponsive pl ead in g. Moreover, we beli eve the dis senti ng opinion i n Scott , 286 F.3d at 931-34 (Sta ffo rd, J., dissent ing), places t

he necessary emphasi s on the policie s und erlying A ED PA , and a cour t’s auth ority, in its di scr etion, to rai se procedur al habeas issues . Noting t hat the
re sp on de nt 's fail ure to r aise t he defense was ina dvertent , and that the petit ioner was gi ven an opportuni ty to res pond to the l imit ations issue, t he Scott dissen t emp hasize s, as w e do h ere tod ay, that: “Congress intende d AED PA to further the pri ncipl es of c om ity, fin ali ty, an d federal ism.” 286 F. 3d at 932 (ci ting Willi ams v. Taylor , 529 U.S . 420 , 436 (20 00) ). “Consist ent with s uch purpose, Con gress cr eated aone -y ear li mit at io ns p er io d that

was m e ant t o stre amline the hab eas rev ie w p roces s and to lend finality to state court con victi ons .” Id. at 933 (ci ting Duncan v. Walker , 533 U. S. 167, 179 (2001)). In Duncan , the Suprem e Cou rt expla ined: “ This provisi on reduces t

he potential f

or delay on the roa d to final ity

by restricting the ti me that a pr ospecti ve federalhabeas petiti oner has in which to seek fe deral habeas revi ew.” 533 U.S. at 179. In our vi ew, AE DP A’s s tatute of limi tati ons advances t he same concerns
as those adva nced by the do ctrin es of exhausti on and procedura l defa ult, and m ust be treat ed th e sa me
. Scott , 286 F.3d at 934(Sta ffo rd, J., d issen ting ). See also Banks , 271 F.3d at 533 n.4.

IV. Conclusi on

In sum , we h old that, consistent with Robinson v. Johnson , 313 F.3 d 12 8, an d ou r Ru le 15 (a) ju rispr ude nce , se e, e.g ., Heyl , 663 F.2d at 426- 27, the Commonw ealth timely rais ed the habeas corpus stat

ute of l imit ations defense, 28 U.S.C. § 2244(d) , and that Long was not prej udiced bywhat am ounted t o an a men dm ent to the Common weal th ’s ans wer . Th e Di stri ctCourt i mp liedly grant ed leave to amend in a pr oper exerc ise of i ts di scretion by denyi ng the petit ion as un tim ely. H aving in mi nd that AEDPA’s statute of limitations, like ot

her proced ural habeas is sues, further s the pri nciple s of c om ity, fina lity, and fed erali sm , se e Wi ll ia ms , 52 9 U.S. at 436 , we hold furt her that a federalmagistr ate j udg e may , consistent with Robinson v. Johnson , 313 F .3d 128, rai se sua spon te the AED PA statute of limitations defense even a fter a n answer has bee n file d, see Granberry , 481 U .S. at 134-35 . The orderof the Dist

rict Court deny ing the habeas petiti on as un timely will be a ffirmed.