Andrews v. Johnson

• Decision Date: 15 August 1997
• Docket Number: No. 1:96-CV-228-C.,1:96-CV-228-C.
• Citation: 976 F.Supp. 527
• Parties: Brenda Gail ANDREWS, Petitioner, v. Gary JOHNSON, Director, TX Dept. of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

976 F.Supp. 527

Brenda Gail ANDREWS, Petitioner, v. Gary JOHNSON, Director, TX Dept. of Criminal Justice, Institutional Division, Respondent.

No. 1:96-CV-228-C.

United States District Court, N.D. Texas, Abilene Division.

August 15, 1997.

Brenda Gail Andrews, Marlin, TX, pro se.

Erik E. Cary, Asst. Atty. Gen., Austin, TX, for Respondent.

ORDER DENYING RESPONDENT'S MOTION TO DISMISS BASED ON A CLAIM OF LIMITATIONS

CUMMINGS, District Judge.

The Petitioner, Brenda Gail Andrews, has filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. The Respondent in lieu of an Answer filed a Motion to Dismiss. Respondent alleged under the new Habeas Statute invoking a one-year limitation period, 28 U.S.C. §§ 2241(d)(1) and 2254, paragraph 6, was a jurisdictional bar to the filing of this Petition for a Writ of Habeas Corpus. The U.S. Magistrate Judge entered a Recommendation to deny this claim of limitations. No Objections have been filed to such Recommendation. The Court has made an independent review of the records.

It is, therefore, Ordered the findings of fact, conclusions of law and recommendation of the U.S. Magistrate Judge are adopted.

It is, further Ordered the Respondent's Motion to Dismiss on the basis of a limitations bar is denied and overruled.

It is, further Ordered the Respondent is granted thirty (30) days after the date of the filing of this Order with the United States District Clerk in which to file the Respondent's Answer to the Petition for a Writ of Habeas Corpus.

RECOMMENDATION TO DENY RESPONDENT'S MOTION TO DISMISS BASED ON A CLAIM OF LIMITATIONS

WARNICK, United States Magistrate Judge.

The Respondent has filed a Motion to Dismiss. This is a claim the Petition is barred by the new Habeas Limitations law.

One of the issues to be determined with regard to the new Habeas Statute of Limitations Act, 28 U.S.C. §§ 2244(d)(1) and 2254, paragraph 6, is to decide whether or not the limitations bar is jurisdictional or an affirmative defense.

The law which permits a case to be filed in court is determinative of jurisdictional versus affirmative defense. There is case authority for the position a Statute of Limitations in some instances is jurisdictional. Case law finding such Statutes jurisdictional is based on a Legislative waiver of Sovereign immunity as the basis of the suit. 28 U.S.C. § 2254 actions are brought as a Writ which is a right provided by the United States Constitution. Thus, a Habeas case arises as a matter of right, not as a matter of the limited waiver of Sovereign immunity.

Cases brought under 28 U.S.C. § 2254 do not arise because of a waiver of Sovereign immunity. The writ of "[h]abeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by the Executive Branch or the Congress. Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them." See Johnson v. Eisentrager, 339 U.S. 763, 798, 70 S.Ct. 936, 954, 94 L.Ed. 1255 (1950), dissenting opinion by Justice Black. The purpose of Section 2254 actions is to require state convictions to meet Federal Constitutional requirements applicable to the states, Smith v. McCotter, 786 F.2d 697 (5th Cir.1986). The United States Constitution provides, "The privilege of the writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.", U.S. Const. art. 1, section 9, cl. 2. Thus, an Application for a Writ of Habeas Corpus is a right. It is not based on a statutory waiver of Sovereign immunity.

Rule 11, Rules Governing Section 2254 Cases, authorizes use of the Federal Rules of Civil Procedure, provided they are not inconsistent with the Habeas Rules. Rule 8(c), Federal Rules of Civil Procedure, provides a Statute of Limitations claim is an affirmative defense. An affirmative defense must be pled or it is waived. Requiring the Statute of Limitations to be pled is treated broadly by the Courts if the issue is apparent on the face of the complaint. If limitations is facially apparent from the Petitioner/Plaintiff's pleadings, then it may be raised in a Motion to Dismiss or other similar dispositive motion.

Mendez-Rosas v. I.N.S., 87 F.3d 672 (5th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997), has been cited as authority for the jurisdictional nature of the Statute of Limitations in the Federal Courts. This is an Immigration law case. The petitioner in Mendez-Rosas conceded deportability and applied for discretionary relief via waiver of deportation. The Immigration Appeals Board denied the petitioner's request and he appealed to the Federal Court of Appeals. Section 106 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1105a(a), had previously been the jurisdictional basis for the Appeals Court's authority to hear the appeals of aliens seeking to challenge the final deportation orders of the Immigration Appeals Board. Section 440(a) of the AEDPA, however changed the jurisdiction of the Courts by eliminating judicial review of final deportation orders involving a petitioner who had committed an aggravated felony. Mendez-Rosas deportation case resulted from his conviction of attempted murder. Therefore, the case fell within the parameters of the new Section 440(a) of the AEDPA. The AEDPA effective date occurred during the pendency of his appeal. The Mendez-Rosas Court found because Section 440(a) explicitly affects jurisdiction, it spoke to the power of the Court, rather than the rights of a potential deportee. Therefore, the Court found it was "easily classified as jurisdictional in nature.", id., at 676. Since the petitioner failed to rebut the presumption of retroactive application the Court held Section 440(a) on a jurisdictional basis barred judicial review of the Immigration Appeals Board decision. The case did not involve a Constitutional grant as with Habeas Corpus.

For example, if an FTCA claim is made, the limitations period is jurisdictional, Houston v. U.S. Postal Service, 823 F.2d 896 (5th Cir.), reh. denied, 830 F.2d 1126 (5th Cir. 1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988). "Congress enacted the FTCA as a limited waiver of sovereign immunity of the United States", Johnston v. United States, 85 F.3d 217, 218 (5th Cir.1996), citing, United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979).

The line of cases finding the Statute of Limitations as an affirmative defense are based on Rule 8(c), Federal Rules of Civil Procedure, which provides,

"(c) Affirmative Defense. In pleading to a preceding pleading, a party shall set forth affirmatively ..., statute of limitations, ..." (Emphasis Added).

The issue before the Court arises in Habeas Corpus actions, thus the general rule requiring the Statute of Limitations to be pled must be considered in light of Rule 81(a)(2), Federal Rules of Civil Procedure, which provides in part,

"These rules are applicable to proceedings for ... habeas corpus ... to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions ..."

Rule 11, Rules Governing Section 2254 Cases, expressly provides, "The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." (Emphasis Added). See Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.1986).

As early as 1962, the Fifth Circuit held, "habeas corpus is a civil proceeding governed by the Federal Rules of Civil Procedure, Rules 1, 81(a)(2), 28 U.S.C....", United States Ex Rel. Seals v. Wiman, 304 F.2d 53 (5th Cir.1962), cert. denied, 372 U.S. 915, 83 S.Ct. 717, 9 L.Ed.2d 722; and 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729 (1963). In Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), the Supreme Court determined the Federal Rules governing discovery were an exception to the complete application of the Rules in Habeas Corpus cases. This is in accord with Rule 6, Rules Governing Section 2254 Cases.

Based on the foregoing, in a Habeas action the new Statute of Limitations is an affirmative defense. As such, the general body of law regarding affirmative defenses is applicable. If defendants in an action do not plead a non jurisdictional but affirmative defense limitation they have waived the defense. See Moore v. El Paso County, Texas, 660 F.2d 586, 590 fn. 4 (5th Cir.1981), cert. denied, 459 U.S. 822, 103 S.Ct. 51, 74 L.Ed.2d 57 (1982), and Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489 (5th Cir.1979).

The Statute of Limitations may be raised for the first time in a Motion to Dismiss for failure to state a claim "when the affirmative limitations defense clearly appears on the face of the complaint". See Sanders v. Dept. Of Army, 981 F.2d 990, 991 (8th Cir.1992), citing White v. Padgett, 475 F.2d 79, 82 (5th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973), and United States v. Lucas, 516 F.Supp. 934 (E.D.Tex.1981).

When applied to a Section 2254 case the Statute of Limitations is an affirmative defense. The Federal Rules of Civil Procedure may be used in Habeas Corpus actions, Rule 81(a)(2), and Rule 11, Rules Governing Section 2254 Cases. Additionally, Rule 8(c), Federal Rules of Civil Procedure, provides a (non jurisdictional) Statute of Limitations is an affirmative defense. A Writ of Habeas Corpus is a right grounded in the common law, and is protected and preserved by the Constitution. It is often referred to as a "writ of right". It is not a right which arises from a waiver of Sovereign immunity. Therefore, limitations as applied to a Petition for a Writ of Habeas Corpus is not jurisdictional.

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