393 F.3d 390 (3rd Cir. 2004), 03-2898, Long v. Wilson

Docket Nº:03-2898.
Citation:393 F.3d 390
Party Name:Curtis LONG, Appellant v. Harry WILSON, Superintendent.
Case Date:December 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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393 F.3d 390 (3rd Cir. 2004)

Curtis LONG, Appellant


Harry WILSON, Superintendent.

No. 03-2898.

United States Court of Appeals, Third Circuit

December 29, 2004

Argued Oct. 26, 2004.

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Jeremy A. Mercer, (Argued), Kenneth M. Argentieri, Melissa L. Irr, Maureen E. Geary, Kirkpatrick & Lockhart LLP, Pittsburgh, PA, for Appellant.

Michael Handler, (Argued), Assistant District Attorney for Appeals and Legal Research, Office of the District Attorney of Indiana County, Indiana, PA, for Appellee.

Before SCIRICA, Chief Judge, FISHER and BECKER, Circuit Judges.

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, 124 S.Ct. 48, 157 L.Ed.2d 49 (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 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.

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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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (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-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

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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 post-conviction petition does not toll statute of limitations), and expired well before he filed his federal habeas petition on April 16, 2002. 5 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, 540 U.S. 921, 124 S.Ct. 317, 157 L.Ed.2d 219 (2003), and, in any

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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, 123 S.Ct. 1950, 155 L.Ed.2d 865 (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, 122 S.Ct. 2147, 153 L.Ed.2d 301 (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...

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