Scott v. Collins

• Decision Date: 25 March 2002
• Docket Number: No. 00-3240.,00-3240.
• Citation: 286 F.3d 923
• Parties: Guy Billy Lee SCOTT, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

286 F.3d 923

Guy Billy Lee SCOTT, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.

No. 00-3240.

United States Court of Appeals, Sixth Circuit.

Argued October 31, 2001.

Decided and Filed March 25, 2002.

H. Fred Hoefle (argued and briefed), Cincinnati, OH, for Appellant.

Thelma T. Price (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Appellee.

William R. Gallagher (briefed), Arenstein & Gallagher, Cincinnati, OH, David H. Bodiker, J. Joseph Bodine (briefed), Ohio Public Defender's Office, Columbus, OH, for Amici Curiae.

Before SILER and COLE, Circuit Judges; STAFFORD, District Judge.^*

COLE, J., delivered the opinion of the court, in which SILER, J., joined. STAFFORD, D.J. (pp. 931-934), delivered a separate dissenting opinion.

OPINION

COLE, Circuit Judge.

Petitioner-appellant Guy Billy Lee Scott, an inmate at the Ross Correctional Institution in Chillicothe, Ohio, appeals the district court's sua sponte order dismissing his petition for a writ of habeas corpus. The district court dismissed Scott's habeas petition as barred under the one-year statute of limitations imposed by 28 U.S.C. § 2244(d). For the reasons stated below, we REVERSE the district court's decision and REMAND for further consideration of Scott's petition.

I.

On February 18, 1992, a jury in the Butler County, Ohio Court of Common Pleas convicted Scott for the murder, anal rape, and misdemeanor assault of Lesa Buckley. Scott received consecutive sentences of fifteen years to life for murder and fifteen to twenty-five years for rape as well as two concurrent sentences for the assault charges. Scott appealed his convictions and identified seventeen assignments of error. On August 1, 1994, the Ohio Twelfth District Court of Appeals ruled against Scott on all counts. Citing four errors in the Court of Appeals' decision, Scott appealed to the Ohio Supreme Court, which declined to review Scott's case on December 14, 1994.

Without having any success through direct appeal, Scott collaterally challenged his criminal convictions by filing a motion for post-conviction relief with the Butler County Common Pleas Court on September 20, 1996. Scott offered six reasons why the Common Pleas Court should vacate the judgment and sentence, but the court rejected each reason on November 1, 1996. Citing seven assignments of error in that court's decision, Scott appealed to the Ohio Twelfth District Court of Appeals, which ruled against him on October 13, 1997. Scott appealed that decision to the Ohio Supreme Court, which declined review on January 28, 1998.

After these repeated rejections by Ohio courts, Scott took his case into the federal court system. On January 25, 1999, Scott petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. Three days after receiving the habeas petition, a federal magistrate judge issued an order (the "January 28 Order"), which instructed respondent, Terry Collins, to file a return of writ that "should include" an allegation of "whether petitioner's claims are barred by the one-year statute of limitations established in Section 101 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.A. § 2244(d) (West Supp.1996)." Respondent timely filed a thirty-eight page return of writ that did not include an allegation that Scott's petition was barred by the § 2244(d) one-year statute of limitations. After respondent failed to address the statute of limitations issue, the magistrate judge issued an order explaining why Scott's petition was barred by § 2244(d). In the same order, the magistrate judge commanded Scott to "show cause, in writing, within twenty (20) days of the date of filing of this Order why this Court should not dismiss this action as time-barred." After receiving an extension of time to respond, Scott responded with five reasons why the statute of limitations should not bar his habeas corpus petition. Unpersuaded by the reasons Scott offered, the district court dismissed Scott's petition with prejudice on statute of limitations grounds.

The district court thoroughly explained its basis for rejecting Scott's habeas petition on statute of limitations grounds in its order. For cases not petitioning the United States Supreme Court for a writ of certiorari, the district court reasoned that the statute of limitations begins to run ninety days (the time allotted for filing a writ of certiorari) after the conclusion of all direct criminal appeals in the state system. Because the Ohio Supreme Court declined Scott's appeal on December 14, 1994, the district court noted that, were it enacted at that point, the statute of limitations would have begun running ninety days later-in mid-March 1995. However, recognizing that § 2244(d) did not become law until April 24, 1996, the district court concluded that the statute of limitations began to run on that date instead. Next, the district court acknowledged that under § 2244(d)(2), the statute of limitations is tolled during the pendency of properly filed applications for state post-conviction relief. Thus, after approximately five months had run on the statute of limitations, Scott tolled the statute of limitations by filing for state post-conviction relief on September 20, 1996. The statute of limitations resumed on January 28, 1998, when the Ohio Supreme Court declined review of Scott's motion for post-conviction relief. Because the remaining seven months of the statute of limitations expired in approximately August 1998, the district court barred Scott's January 25, 1999 petition for habeas relief.

Although it dismissed Scott's petition, the district court granted Scott a certificate of appealability ("COA") on the limited issue of whether the statute of limitations barred Scott's habeas petition.¹ With the COA, Scott timely appealed his case to the Sixth Circuit. In his appellate brief, Scott realleged his actual innocence of the anal rape conviction and argued against the application the statute of limitations to his petition for four reasons: (i) respondent waived the statute of limitations defense; (ii) the court violated its duty to be fair and impartial by asserting a waived defense on behalf of the respondent; (iii) Scott's petition is entitled to the benefit of equitable tolling of the statute of limitations; and (iv) applying the statute of limitations to Scott as a first time habeas petitioner unconstitutionally suspends the writ of habeas corpus.² In reply to these arguments, respondent contends that Scott's petition is barred by § 2244(d) because (i) the district court had authority to consider sua sponte the timeliness of the petition and the district court did not err in holding that Scott's petition was untimely; (ii) the district court properly held that Scott was not entitled to the benefits of equitable tolling; and (iii) the application of the statute of limitations to Scott's case is not an unconstitutional suspension of the writ of habeas corpus. Later, the Ohio Association of Criminal Defense Lawyers and the Ohio Public Defender filed amici briefs urging reversal of the district court's dismissal of Scott's petition. The question of whether the district court properly applied the statute of limitations to Scott's habeas petition is now before this Court.

II.

Two initial observations are necessary before analyzing the merits of Scott's appeal. First, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996 governs Scott's habeas petition because Scott filed his habeas petition on January 25, 1999 — after the effective date of AEDPA. See Bronaugh v. Ohio, 235 F.3d 280, 282 (6th Cir.2001) (applying AEDPA's one-year statute of limitations to a habeas petition that was filed on April 24, 1996); Harris v. Stovall, 212 F.3d 940, 941 (6th Cir.2000). Second, a court of appeals reviews a district court's disposition of a habeas corpus petition de novo. Bronaugh, 235 F.3d at 282; Harris, 212 F.3d at 941. Thus, Scott's four assignments of error will be analyzed under AEDPA and the district court's decision will be reviewed de novo.

A. Waiver

The first issue presented for review is whether respondent waived the ability to assert the statute of limitations defense. Without addressing the effect of the district court's sua sponte actions at this point, we conclude that respondent waived the statute of limitations defense.³

To avoid waiver under the rules of pleading and to comply with the court order, respondent had to plead the § 2244(d) statute of limitations defense. The § 2244(d) statute of limitations defense is an affirmative defense as opposed to a jurisdictional defect. See Hill v. Braxton, 277 F.3d 701, 705 (4th Cir.2002); Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000) ("The AEDPA statute of limitations is not jurisdictional, and nothing in the AEDPA or in the § 2254 Habeas Rules indicates that the burden of pleading the statute of limitations has been shifted from the respondent to the petitioner. The AEDPA statute of limitations is therefore an affirmative defense and compliance therewith need not be pleaded in the petition.") (citations omitted); Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir.1999) (recognizing that "the statute of limitations provision of the AEDPA is an affirmative defenses rather than jurisdictional"); United States ex rel. Galvan v. Gilmore, 997 F.Supp. 1019, 1026 (N.D.Ill.1998) ("[S]ince § 2244(d) does not affect this court's subject matter jurisdiction over habeas petitions, the state can waive the § 2244(d) timeliness issue by failing to raise it.") (citations omitted). Because the § 2244(d) statute of limitations is an affirmative defense, Rule 8(c) of the Federal Rules of Civil Procedure requires that a party raise it in the first responsive pleading to avoid waiving it.⁴ Fed.R.Civ.P. 8(c) ("In pleading to a preceding pleading, a...