Hill v. Braxton ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHERWOOD L. HILL, 
Petitioner-Appellant,
v.
 No. 00-7408
D. A. BRAXTON, Buckingham
Correctional Center,
Respondent-Appellee.

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: September 24, 2001
Decided: January 14, 2002
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.
COUNSEL
ARGUED: Justin Sanjeeve Antonipillai, ARNOLD & PORTER,
Washington, D.C., for Appellant. Eugene Paul Murphy, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellee. ON BRIEF: Joel M. Gulick, ARNOLD
& PORTER, Washington, D.C., for Appellant. Mark L. Earley, Attor-
ney General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.
2 HILL v. BRAXTON
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. § 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. § 2244(d) (West Supp.
2001). The district court determined sua sponte that Hill’s pro se peti-
tion was untimely and dismissed the action without affording Hill
notice or an opportunity to be heard. Hill contends that he was enti-
tled 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 § 2254 petition from dismissal under the limi-
tation 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 con-
victions for rape and malicious wounding. On June 19, 1998, the Vir-
ginia 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 § 2254.2
1
We have drawn the facts about Hill’s state convictions, the length of
his sentence, the date on which his appeal was affirmed, and the date on
which his habeas petition was denied from Hill’s pro se § 2254 petition.
The record on appeal does not contain any of the documents from Hill’s
state proceedings; however, the Commonwealth does not dispute the
facts or dates as recounted by Hill.
2
The petition was hand-dated June 22, 2000. However, the document
also bears two stamped dates which suggest that the petition was
received by the clerk’s office on August 25 or August 30. For analytical
purposes in this appeal, the date is not critical. It may become so on
remand, however, and we leave it to the district court to determine the
date on which the petition was actually filed for purposes of § 2244(d).
HILL v. BRAXTON 3
He raised a number of claims, including an assertion that his confes-
sion 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 § 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 timeli-
ness of his application.
The district court, acting sua sponte, concluded from the face of
Hill’s petition that his § 2254 claims were barred by the one-year lim-
itations period imposed by § 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 § 2254 petition, if filed no earlier than June 22, 2000, was
untimely. Hill was not afforded an opportunity to demonstrate the
timeliness of his § 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 con-
tained cursory factual allegations to support Hill’s view that his peti-
tion 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 § 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 peti-
tion, 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 § 2254 from a state conviction: "A 1-year period
4 HILL v. BRAXTON
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. § 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 appli-
cation created by State action in violation of the Constitu-
tion 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. § 2244(d)(1). Therefore, the one-year limitation period
begins running when direct review of the state conviction is com-
pleted or when the time for seeking direct review has expired, see 28
U.S.C.A. § 2244(d)(1)(A), unless one of the circumstances enumer-
ated by the statute is present and starts the clock running at a later
date. See 28 U.S.C.A. § 2244(d)(1)(B)-(D). If no petition for a writ
of certiorari is filed in the United States Supreme Court, then the limi-
tation 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. § 2244(d)(2).
Moreover, the one-year limitation period is also subject to equitable
tolling in "those rare instances where — due to circumstances exter-
nal to the party’s own conduct — it would be unconscionable to
enforce the limitation against the party." See Harris, 209 F.3d at 330.
HILL v. BRAXTON 5
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 § 2254 claim on
the form, which did not ask for any such information, nor did any-
thing on the face of Hill’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 Sep-
tember 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 § 2254 petition when he filed his state
habeas corpus petition, which would toll the running of the limitation
period under § 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 § 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 § 2254 petition. See Harris, 209 F.3d at 328-29. The statute of limi-
tations 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 pre-
ceding 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. § 1915). We conclude that the one-year limitation period
contained in § 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).
6 HILL v. BRAXTON
Even though the limitations period is an affirmative defense, a fed-
eral 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
§ 2244(d). See Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir.
1999). Actions brought pursuant to § 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 pro-
cedural 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 from other civil cases with respect to
sua sponte consideration of affirmative defenses." Kiser, 163 F.3d at
328. Rule 4 instructs that
If it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to
relief in the district court, the judge shall make an order for
its summary dismissal and cause the petitioner to be noti-
fied. Otherwise, the judge shall order the respondent to file
an answer or other pleading . . . .
Rule 4, 28 U.S.C.A. foll. § 2254. The text of the rule not only permits
a district court to dismiss sua sponte an action in which "it plainly
appears . . . that the petitioner is not entitled to relief," id., but directs
it to do so, even in the absence of a responsive pleading from the
state. That is not to say that the district court is required to raise all
potential affirmative defenses as if they were jurisdictional require-
ments. Rule 4 addresses § 2254 petitions that are meritless on their
face, but the applicability of an affirmative defense is often not appar-
ent from the face of the petition because the respondent, not the peti-
tioner, bears the burden of pleading it. Our point is simply that when
a federal habeas court, in its discretion, raises an affirmative defense
HILL v. BRAXTON 7
before the state has even entered a responsive pleading, as the district
court did here, it acts consistently with Rule 4.
We agree with our sister circuits that have determined a district
court has the power to raise the limitations defense of § 2244(d) sua
sponte.3 See Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001);
Acosta, 221 F.3d at 122-24; Kiser, 163 F.3d at 328-29. The one-year
limitations period implicates values beyond the interests of the parties
and, in particular, "promotes judicial efficiency and conservation of
judicial resources, safeguards the accuracy of state court judgments
by requiring resolution of constitutional questions while the record is
fresh, and lends finality to state court judgments within a reasonable
time." Acosta, 221 F.3d at 123. Accordingly, we conclude that it is
appropriate for a federal habeas court to raise and consider the limita-
tions period under § 2244(d) even before the state has filed a respon-
sive pleading or otherwise attempted to assert the limitations bar.
C.
On the other hand, the district court’s discretion to raise an affirma-
tive defense to a § 2254 petition sua sponte and then dismiss the peti-
tion based on that affirmative defense is not completely unfettered.
The court’s "exercise of . . . discretion should not be automatic, but
must in every case be informed by those factors relevant to balancing
the federal interests in comity and judicial economy against the peti-
tioner’s substantial interest in justice." Yeatts, 166 F.3d at 262 (inter-
3
Although this circuit has not addressed the authority of a district court
to raise a statute of limitations defense sua sponte in the § 2254 context,
we have done so in analogous circumstances involving actions filed in
forma pauperis. See 28 U.S.C.A. § 1915 (West Supp. 2001). Section
1915, similar to Rule 4, directs the district court to "dismiss the case at
any time if the court determines that" the action is "frivolous" or "fails
to state a claim on which relief may be granted." 28 U.S.C.A.
§ 1915(e)(2)(B). Examining a prior but similar version of this section,
see 28 U.S.C.A. § 1915(d) (West 1994), we concluded that when it is
clear from the face of a complaint filed pursuant to § 1915 that the action
is time-barred, then the district court has the authority to dismiss the
action sua sponte. See Nasim v. Warden, Md. House of Correction, 64
F.3d 951, 955-56 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d
70, 74 (4th Cir. 1983).
8 HILL v. BRAXTON
nal quotation marks omitted). An important consideration for a
federal habeas court is whether "justice requires that the habeas peti-
tioner be afforded with notice and a reasonable opportunity" to be
heard. Id. (internal quotation marks omitted).
In a case like this one, the district court should afford an opportu-
nity for the habeas petitioner to respond before the case is dismissed.
First, it is improbable under circumstances such as these that it would
ever be clear from the face of the petition that "the petitioner is not
entitled to relief in the district court" as a result of the one-year limita-
tions period. Rule 4, 28 U.S.C.A. foll. § 2254. Because the statute of
limitations is an affirmative defense, a habeas petitioner is not likely
to plead detailed facts to refute this defense in the initial § 2254 peti-
tion. Although a district court will usually be able to determine when
a § 2254 petition is potentially untimely, § 2244(d)(1) lists various
(albeit narrow) circumstances under which a petition may be timely
even though, at first glance, the petition appears to be barred by the
limitations period. For example, the commencement of the limitations
period is delayed if a state, in violation of the Constitution or a federal
statute, impedes a would-be habeas applicant from filing his action
under § 2254. See 28 U.S.C.A. § 2244(d)(1)(B). Any facts relating to
such a claim are unlikely to be part of the record. The same can be
said of facts that would justify the application of equitable tolling.
Thus, when a federal habeas court, acting sua sponte, dismisses a
§ 2254 action as untimely without notice to or input from the peti-
tioner, the court cannot be certain that there are no circumstances that
would cause the petition to be timely. The district court ought at least
to inquire whether there are any facts not apparent to the court that
militate against the application of the limitations bar.
Second, notice and an opportunity to respond are particularly
appropriate when the prisoner is pro se, like Hill, and the long-
standing practice is to construe pro se pleadings liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). A seasoned habeas
practitioner might try to preempt an anticipated statute of limitations
defense by including facts to show that the petition is timely. A pro
se prisoner, however, is generally less able to anticipate affirmative
defenses. This problem was made worse in Hill’s case because, as a
pro se § 2254 petitioner, Hill was required to use a standard govern-
ment form that did not direct him to address the timeliness issue or
HILL v. BRAXTON 9
ask him to include facts that might be outside of the record but rele-
vant to timeliness under § 2244(d). See Acosta, 221 F.3d at 125("[T]he problem of unlearned and unskilled pro se petitioners inade-
quately addressing the statute of limitation in the petition is com-
pounded . . . by the fact that the [standard forms] given to these
prisoners are not designed to elicit any information concerning these
factors.").
Considering these circumstances as a whole, we believe justice
requires the district court to give the pro se § 2254 petitioner prior
notice and an opportunity to respond. We hold that when a federal
habeas court, prior to trial, perceives a pro se § 2254 petition to be
untimely and the state has not filed a motion to dismiss based on the
one-year limitations period, the court must warn the prisoner that the
case is subject to dismissal pursuant to § 2244(d) absent a sufficient
explanation, unless it is indisputably clear from the materials pre-
sented to the district court that the petition is untimely and cannot be
salvaged by equitable tolling principles or any of the circumstances
enumerated in § 2244(d)(1).4 Our holding comports with the decisions
of the other circuit courts of appeal that have considered this issue.
See Herbst, 260 F.3d 1043-44; Acosta, 221 F.3d at 125-26.
The Commonwealth suggests that to require a district court to
afford a pro se petitioner an opportunity to explain why an apparently
untimely § 2254 application is subject to some exception is to impose
too harsh a duty, and that the petitioner should essentially anticipate
the timeliness problem. The Commonwealth further suggests that, in
any event, a post-judgment motion under Rule 59(e) of the Federal
Rules of Civil Procedure affords a § 2254 petitioner sufficient oppor-
tunity to respond to the district court’s perception that a petition is
untimely. For reasons already discussed, we decline to require a pro
4
Our holding is not inconsistent with our decision in Nasim, in which
we determined from the detailed factual allegations in the complaint that
it was clear from the face of a prisoner’s in forma pauperis complaint
that the statute of limitations barred the claim. See 64 F.3d at 956. Hill’s
standard form § 2254 petition, which asks for no information relating to
the statute of limitations, is not similarly clear on its face. Additionally,
in Nasim we did not squarely address the issue of whether pre-dismissal
notice was required, nor was tolling an issue.
10 HILL v. BRAXTON
se petitioner to anticipate affirmative defenses in the § 2254 petition,
particularly when the petitioner is merely following a standard form
that elicits no information on the subject. We also do not believe we
are imposing an onerous duty on the district courts. A particularly
detailed notice is not necessary nor is a hearing necessarily required.
Rather, a district court should furnish notice that simply warns the pro
se petitioner that his § 2254 action will be dismissed as untimely
unless the petitioner can demonstrate that the petition was filed within
the proper time period. We do not perceive such a requirement to
impose any more of a burden than our well-established rule that dis-
trict courts must advise pro se prisoners that the failure to file respon-
sive material when a defendant moves for summary judgment exposes
them to the possible entry of summary judgment in favor of the defen-
dant. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (per
curiam).
We also disagree that Rule 59(e) affords a pro se petitioner such
as Hill an adequate opportunity to respond. Rule 59(e) permits a party
to file a motion to alter or amend a judgment "no later than 10 days
after entry of the judgment." A district court has the discretion to
grant a Rule 59(e) motion only in very narrow circumstances: "(1) to
accommodate an intervening change in controlling law; (2) to account
for new evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice." Collison v. International Chemi-
cal Workers Union, 34 F.3d 233, 236 (4th Cir. 1994) (internal quota-
tion marks omitted). Moreover, Rule 59(e) motions may not be used
to make arguments that could have been made before the judgment
was entered, see Pacific Ins. Co. v. American Nat’l Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998), which, if we adopted the Common-
wealth’s view that the pro se petitioner bears the burden of anticipat-
ing exceptions to the statute of limitations, would prevent the
petitioner from raising a tolling argument for the first time under Rule
59(e). And, even if a pro se petitioner is not required to anticipate the
statute of limitations issue, we still believe that Rule 59(e) is not an
adequate avenue for the petitioner to pursue a tolling argument
because it affords a narrower basis for relief than is available prior to
entry of a judgment. Thus, the better course is for the district court
to provide a chance to respond before judgment is entered against the
petitioner, not afterwards. See Herbst, 260 F.3d at 1043-44 (holding
that Rule 59(e) is not sufficient to permit a pro se petitioner to
HILL v. BRAXTON 11
respond to the sua sponte dismissal of a § 2254 petition for untimeli-
ness).
D.
Finally, the Commonwealth argues that Hill failed to allege, and
that the record does not contain, sufficient facts to support the appli-
cation of equitable tolling principles or a finding that one of the spe-
cial circumstances listed in § 2244(d)(1)(B) applies. The only facts
alleged by Hill or contained in the summary record are set forth in
Hill’s three-sentence Notice of Appeal. We are not in a position to
say, based on the insufficient record before us, that Hill cannot, as a
matter of law, allege any facts that would entitle him to relief from
the effect of the one-year limitations period. The district court is bet-
ter suited to develop the record in this regard in the first instance.
III.
For the forgoing reasons, we vacate the decision of the district
court and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED