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In a significant legal victory for convicts who turn to the federal courts to challenge their state court convictions, the 3rd U.S. Circuit Court of Appeals has ruled that any statute of limitations defense asserted by the prosecution must be raised “at the earliest practicable moment” and will be deemed waived if it is brought too late. “Parties are generally required to assert affirmative defenses early in litigation, so they may be ruled upon, prejudice may be avoided, and judicial resources may be conserved. Habeas proceedings are no exception,” 3rd Circuit Judge Richard L. Nygaard wrote in Robinson v. Johnson. But in dissent, 3rd Circuit Judge Dolores K. Sloviter said that while she agreed with the general rule — that under the Antiterrorism and Effective Death Penalty Act, a statute of limitations defense can be waived by a prosecutor’s delay in asserting it — an exception must be made for prosecutors who wage a first round of attack on the grounds that the petition is barred as an impermissible “second or successive” petition. “I am unpersuaded that as a general rule a habeas defendant may not preliminarily raise a successivity challenge without losing the opportunity to raise the defense of statute of limitations. I believe that AEDPA places the defense of successivity on a different level than affirmative defenses, such as statute of limitations,” Sloviter wrote. Since the language of the AEDPA calls for approval by an appellate court “before” a district court even considers a successive petition, Sloviter said, it is appropriate for a prosecutor to assert such a defense on its own and to raise any other defenses only when the challenge on successivity grounds fails. “It would circumvent the intent of the gatekeeping function … for a district court to proceed to rule on the merits of a second or successive petition or on any affirmative defense before the court of appeals has made a decision whether to let the petition for habeas corpus proceed in the district court,” Sloviter wrote. But Nygaard, in an opinion joined by 3rd Circuit Judge Thomas L. Ambro, found that the federal rules require that all non-jurisdictional affirmative defenses be asserted in the beginning of the litigation. “The commonwealth argues, and we agree, that a limitations defense does not necessarily have to be raised in the answer. But it does not follow that a limitations defense can be raised at any time. Consistent with the purpose of Rule 8(c), courts require that defendants assert a limitations defense as early as reasonably possible,” Nygaard wrote. The decision revives a habeas corpus petition filed by Eric Robinson, who was convicted of first-degree murder, theft, robbery and weapons charges in the Philadelphia Court of Common Pleas and was sentenced to life in prison. Robinson’s first federal habeas petition was filed in 1991 — before AEDPA was passed — but the courts found that he was raising new claims that had never been presented to the Pennsylvania courts. After pursuing a round of appeals in the state court system and losing at every step, Robinson returned to federal court in 1998. Prosecutors immediately challenged the new petition as a “second or successive” one that required the approval of the 3rd Circuit before it could proceed. U.S. District Judge Herbert J. Hutton of the Eastern District of Pennsylvania agreed and dismissed the petition. But when Robinson appealed, the 3rd Circuit ordered the district attorney to explain why Hutton’s dismissal order should not be summarily reversed in light of the 1997 decision in Christy v. Horn, which held that when a federal habeas petition has been dismissed without prejudice for failure to exhaust state remedies, a petitioner, after exhausting his state remedies, need not apply to the court of appeals for authorization to file a federal habeas action, but may file his petition in the district court as if it were his first such filing. Robinson’s case was revived after the district attorney filed a letter brief conceding that Robinson’s second federal habeas petition indeed was not successive. But Hutton dismissed the petition again when the district attorney’s office argued for the first time that the petition was filed beyond the AEDPA’s one-year statute of limitations. Now the 3rd Circuit has ruled that Hutton erred again because the district attorney’s office should have been deemed to have waived its statute of limitations defense. “The law of this circuit clearly holds that the limitations provision of the AEDPA is not jurisdictional in nature,” Nygaard wrote. Nygaard found that four other federal circuits — the 1st, 2nd, 5th and 9th — have held that a limitations defense may be waived by a state defendant in a habeas proceeding. “We join these courts of appeals and now hold that because the AEDPA limitations period is subject to equitable modifications such as tolling, it is also subject to other non-jurisdictional, equitable considerations, such as waiver,” Nygaard wrote. “Technically,” Nygaard said, “the Federal Rules of Civil Procedure require that affirmative defenses be pleaded in the answer.” Under Rule 12(b), Nygaard said, “every defense … shall be asserted in the responsive pleading thereto if one is required.” While the rule creates some specific exceptions for defenses that may be made by motion, a limitations defense is not one of them, Nygaard found. Nonetheless, Nygaard found that under the so-called 3rd Circuit Rule, a limitations defense can be raised by a motion under Rule 12(b)(6), but only if “the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.” Nygaard found that the 3rd Circuit and other courts “routinely consider the timeliness of a limitations defense.” Those decisions, Nygaard said, “reflect, in one form or another, attempts by the courts to keep the consideration of affirmative defenses consistent with at least the purpose, if not necessarily the language, of Rule 8(c).” Affirmative defenses, Nygaard said, “must be raised as early as practicable, not only to avoid prejudice, but also to promote judicial economy. If a party has a successful affirmative defense, raising that defense as early as possible, and permitting a court to rule on it, may terminate the proceedings at that point without wasting precious legal and judicial resources.” Assistant District Attorney David C. Glebe argued that the question of whether Robinson’s petition was successive was “logically and conceptually prior” to the question of whether the petition was time-barred. Glebe argued that if Robinson’s petition were deemed successive, then no matter what it contained nor whether or not it was timely, the petition could have been dismissed. Nygaard disagreed, saying, “Although the commonwealth is correct that if the petition were successive then it could be disposed of no matter if it were timely or not, the commonwealth fails to recognize that the converse is equally true — that is, if the petition were time-barred, it did not matter whether the petition were successive or not. There is no logical or conceptual priority to the limitations defense.” Robinson was represented in the appeal by attorney Paul Rosenzweig of Washington, D.C.

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