Hiull v. Braxton

• Decision Date: 24 September 2001
• Docket Number: No. 00-7408,00-7408
• Citation: 277 F.3d 701
• Parties: (4th Cir. 2002) SHERWOOD L. HILL, Petitioner-Appellant, v. D. A. BRAXTON, Buckingham Correctional Center, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 701

277 F.3d 701 (4th Cir. 2002)

SHERWOOD L. HILL, Petitioner-Appellant, v. D. A. BRAXTON, Buckingham Correctional Center, Respondent-Appellee.

No. 00-7408

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 24, 2001

Decided: January 14, 2002

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-00-1481) ARGUED: Justin Sanjeeve Antonipillai, ARNOLD & PORTER, Washington, D.C., for Appellant. Eugene Paul Murphy, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Joel M. Gulick, ARNOLD & PORTER, Washington, D.C., for Appellant. Mark L. Earley, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge Traxler wrote the opinion, in which Judge Michael and Judge Gregory joined.

OPINION

TRAXLER, Circuit Judge:

Sherwood L. Hill appeals the district court's dismissal of his pro se petition for relief under 28 U.S.C.A. S 2254 (West 1994 & Supp. 2001) for failure to comply with the one-year limitation period for bringing such an action. See 28 U.S.C.A. S 2244(d) (West Supp. 2001). The district court determined sua sponte that Hill's pro se petition was untimely and dismissed the action without affording Hill notice or an opportunity to be heard. Hill contends that he was entitled to respond and, had he been permitted to do so, he could have demonstrated that either a statutory exception or equitable tolling principles protected his S 2254 petition from dismissal under the limitation period. We vacate the decision of the district court and remand for further proceedings.

I.

Hill, a Virginia inmate, is serving a 24-year sentence on 1997 convictions for rape and malicious wounding. On June 19, 1998, the Virginia Court of Appeals affirmed Hill's convictions. Hill apparently sought no further direct review of his case. He later petitioned the Supreme Court of Virginia for habeas corpus relief, but the court denied his petition on April 28, 1999.¹

In June 2000, Hill filed a pro se application for relief under S 2254.² He raised a number of claims, including an assertion that his confession was involuntary, that his counsel rendered ineffective assistance, that there was insufficient evidence to support his conviction, and that his sentence was excessive. As a pro se petitioner, Hill was required to use a standard government form to apply for relief under S 2254. See Local Rule 83.4, E.D.Va. Hill responded to all of the questions on the form; he was not asked to supply information about the timeliness of his application.

The district court, acting sua sponte, concluded from the face of Hill's petition that his S 2254 claims were barred by the one-year limitations period imposed by S 2244(d) and the court dismissed the action. The district court concluded that this one-year period began to run at the latest on April 28, 1999, the date on which the Virginia Supreme Court denied Hill's petition for collateral review. Thus, Hill's S 2254 petition, if filed no earlier than June 22, 2000, was untimely. Hill was not afforded an opportunity to demonstrate the timeliness of his S 2254 petition before it was dismissed.

Hill promptly filed with the district court what he styled as a notice of appeal. It gave notice of Hill's intent to appeal, but it also contained cursory factual allegations to support Hill's view that his petition was timely or that he was entitled to relief from the limitations bar.

On appeal, Hill contends that the district court should have afforded him a pre-dismissal opportunity to explain why his S 2254 application was not barred by the one-year limitations provision. For the reasons set forth below, we agree that Hill should have been afforded an opportunity to respond prior to the dismissal of his petition, but we limit our holding to the narrow circumstances of this case.

II.

A.

Congress has circumscribed the amount of time a state prisoner has to seek relief under S 2254 from a state conviction: "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." 28 U.S.C.A. S 2244(d)(1). This one-year limitation period for a habeas claim begins running from the latest of four dates:

(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 exercise of due diligence.

28 U.S.C.A. S 2244(d)(1). Therefore, the one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired, see 28 U.S.C.A. S 2244(d)(1)(A), unless one of the circumstances enumerated by the statute is present and starts the clock running at a later date. See 28 U.S.C.A. S 2244(d)(1)(B)-(D). If no petition for a writ of certiorari is filed in the United States Supreme Court, then the limitation period begins running when the time for doing so -90 days -has elapsed. See Harris v. Hutchinson, 209 F.3d 325, 328 n.1 (4th Cir. 2000). The running of the one-year limitation period, however, is suspended for "[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." 28 U.S.C.A. S 2244(d)(2). Moreover, the one-year limitation period is also subject to equitable tolling in "those rare instances where -due to circumstances external to the party's own conduct -it would be unconscionable to enforce the limitation against the party." See Harris, 209 F.3d at 330.

According to his pro se petition, Hill did not file a petition for a writ of certiorari following the decision of the Virginia Court of Appeals, affirming his conviction on June 19, 1998. Hill did not include any information about the timeliness of his S 2254 claim on the form, which did not ask for any such information, nor did anything on the face of Hill's S 2254 petition suggest that he was impeded from filing within the one-year limitation period. Thus, the district court concluded the one-year period started running on September 21, 1998 when the time expired for seeking a writ of certiorari from the United States Supreme Court.

It is not apparent from Hill's S 2254 petition when he filed his state habeas corpus petition, which would toll the running of the limitation period under S 2244(d)(2). We are told only that the Virginia Supreme Court denied the petition on April 28, 1999. The district court concluded that even if Hill had filed his state habeas petition immediately after the conclusion of direct review, thereby tolling the limitation period until that petition was denied on April 28, 1999, Hill's S 2254 petition was still untimely because he filed it no earlier than June 2000, more than one year after his state habeas proceedings were concluded.

B.

Because the one-year statute of limitations is not jurisdictional, a federal habeas court is not duty-bound to consider the timeliness of a S 2254 petition. See Harris, 209 F.3d at 328-29. The statute of limitations question is more in the nature of an affirmative defense that "constitut[es] an avoidance" of the petitioner's allegations apart from the merits of the petition. Fed. R. Civ. P. 8(c) ("In pleading to a preceding pleading, a party shall set forth affirmatively . . . [the] statute of limitations, . . . and any other matter constituting an avoidance or affirmative defense."); cf. Todd v. Baskerville, 712 F.2d 70, 73-74 (4th Cir. 1983) (considering the applicable statute of limitations to be an affirmative defense in actions brought in forma pauperis under 28 U.S.C.A. S 1915). We conclude that the one-year limitation period contained in S 2244(d) is an affirmative defense that the state bears the burden of asserting. See Acosta v. Artuz, 221 F.3d 117, 121-22 (2nd Cir. 2000); Kiser v. Johnson, 163 F.3d 326, 328 & n.4 (5th Cir. 1999).

Even though the limitations period is an affirmative defense, a federal habeas court has the power to raise affirmative defenses sua sponte, as the district court did in this case. We have approved sua sponte consideration of affirmative defenses by a federal habeas court, although not specifically a statute of limitations defense under S 2244(d). See Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir. 1999). Actions brought pursuant to S 2254 implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions. These interests eclipse the immediate concerns of the parties and provide federal habeas courts the discretionary authority to raise affirmative defenses that have not been preserved by the state. See id. at 261 (explaining the propriety of considering procedural default defense that the Commonwealth failed to raise because of the "overriding interests of comity and judicial efficiency that transcend the interests of the parties"). The district court's sua sponte consideration of a defense not raised by the state is consistent with Rule 4 of the Rules Governing Section 2254 Cases. Rule 4 reflects the policy considerations of federalism and judicial efficiency and "differentiates habeas cases...