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A sharp split emerged among the judges of the 3d U.S. Circuit Court of Appeals in a pair of habeas corpus petitions that raise fundamental questions about the powers of trial judges to act on their own in raising the issue of a statute of limitations defense. U.S. v. Bendolph and U.S. v. Otero, nos. 01-2468 and 02-2624 The en banc court ruled, 7-5, that under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), judges may exercise their discretion to raise a statute of limitations issue sua sponte “at any point in the proceedings,” even if prosecutors have waived the defense. The decision, written by Judge Franklin S. Van Antwerpen, aligns the 3d Circuit with the 11th Circuit, and puts it in opposition to the 6th and 9th circuits. The dissent, led by U.S. Circuit Judge Richard L. Nygaard, complained that the ruling established a “double standard” in which judges are permitted to “act as de facto counsel for the government, working together toward the common goal of dismissal of the petition . . . .In an adversarial system, it is not for the courts to bring to light the best arguments for either side; that responsibility is left to the parties themselves,” Nygaard wrote. In passing AEDPA, the majority said, Congress set out to reform habeas litigation with the goals of curbing abuse of the process. As a result, even if a prosecutor fails to raise a statute of limitations issue as a defense, the court retains the power to do so on its own. “While government prosecutors have both prosecutorial discretion and heightened ethical duties to do justice, such considerations do not justify subordinating judicial power to the presence or absence of the AEDPA limitations defense in a government answer or motion,” Van Antwerpen wrote. “We must doubt that Congress intended to relegate the efficacy of its reforms to the vagaries of a prosecutor’s decisions.” When Herbert L. Bendolph’s and Julio Otero’s cases were scheduled for argument before a 12-judge en banc panel, the lawyers were asked to address four questions: (1) May the government waive the AEDPA statute of limitations as a defense?; (2) May a district court raise it sua sponte?; (3) If so, at what stages in a habeas case may a district court raise the limitations issue?; and (4) May a district court still raise the issue even if the government concedes waiver? Now the court has answered “yes” to the first, second and fourth questions. On the third question, the majority concluded that the court always has the power to raise statute of limitations defenses sua sponte at any stage, but that its procedure for handling such a motion varies. Under Rule 4 of the rules governing habeas petitions, the district judge has the power to dismiss any petition in which the convict is “plainly” not entitled to relief. As a result, the 3rd Circuit concluded that during the Rule 4 period, the judge need only give notice and an opportunity to respond. After the Rule 4 period has ended, the court said, the judge may continue to raise the AEDPA statute of limitations issue sua sponte. Van Antwerpen said that there was “no obvious reason why, given notice and an opportunity to respond, and absent prejudice to the habeas petitioner or movant, a court’s exercise of its sua sponte powers should be limited to only the Rule 4 period.” In his dissent, Nygaard said that the majority’s decision “permits and perpetuates a double standard.” By allowing trial judges to raise a defense that a prosecutor has failed to raise or has waived, Nygaard argued, the court had sent “a disturbing message: We will aid the government in a habeas proceeding, but not the petitioner.” Under the majority’s ruling, Nygaard said, “the mistakes of the government may be excused and ignored, but any error by the petitioner is fatal-perhaps figuratively, but too often literally.”

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