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A sharp split emerged among the judges of the 3rd U.S. Circuit Court of Appeals in a pair of habeas corpus petitions that raise several fundamental questions about the powers of trial judges to act on their own in raising the issue of a statute of limitations defense. By a vote of 7-5, the court held that, under the Anti-Terrorism and Effective Death Penalty Act, 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. In so holding, the 3rd Circuit joins the 11th U.S. Circuit Court of Appeals. Two federal appeals courts — the 6th and 9th circuits — have upheld prosecution waiver of the statute of limitations in habeas corpus litigation. The 3rd Circuit decision solidifies the split among federal appeals courts and makes it more likely that the issue will have to be resolved by the U.S. Supreme Court. But in a spirited dissent, five judges 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.” The two cases — United States v. Bendolph and United States v. Otero — pointed up stark differences among the judges about how habeas corpus petitions ought to be viewed. The dissenting judges, led by 3rd Circuit Judge Richard L. Nygaard, argued that it is axiomatic to civil litigation that it is inappropriate for a court to sua sponte raise non-jurisdictional defenses that were never raised by the parties. “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 a dissent joined by Circuit Judges Dolores K. Sloviter, Theodore A. McKee, Thomas L. Ambro and Julio M. Fuentes. “Typically, it is not fair for courts to act as surrogate counsel for one side but not the other,” Nygaard wrote. But the majority, led by 3rd Circuit Judge Franklin S. Van Antwerpen, found that the dissent’s argument was built on the faulty premise that “habeas cases and ordinary civil cases are indistinguishable.” Instead, Van Antwerpen found that habeas cases, due to their criminal nature, are “different,” and that trial judges always have the “inherent power” to raise a statute-of-limitations issue even if the prosecutor fails to. In passing AEDPA, Van Antwerpen said, Congress set out to reform habeas litigation with the goals of curbing abuse of the process, promoting “finality” of criminal convictions, and preserving judicial resources. As a result, Van Antwerpen concluded that even if a prosecutor fails to raise the statute of limitations 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 or mistakes. Similarly, we discern no Congressional intent to hamstring courts in carrying out its reforms. The better conclusion is that Congress did not render the courts powerless,” Van Antwerpen wrote. Van Antwerpen’s opinion was joined by 3rd Circuit Chief Judge Anthony J. Scirica and Circuit Judges Jane R. Roth, Marjorie O. Rendell, Maryanne Trump Barry, D. Brooks Smith and D. Michael Fisher. The decision comes in a consolidated appeal of two cases — one from the District of Delaware and one from the District of New Jersey — that raised related questions about the power of federal district judges, acting on their own motions, to dismiss habeas petitions on statute of limitations grounds. 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: May the government waive the AEDPA statute of limitations as a defense? May a district court raise it sua sponte? If so, at what stages in a habeas case may a district court raise the limitations issue? 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 from federal or state convictions, 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 the petition 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, but must go one step further. In addition to providing notice and an opportunity to respond, the court must also decide whether the petition would suffer any “prejudice.” Defense lawyers argued that the district court’s power to make such sua sponte motions should end at the close of the Rule 4 period. Van Antwerpen disagreed, saying 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.” NYGAARD DISSENTS In dissent, Nygaard said 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.” Nygaard complained that the majority had granted “favored-party status” to the government in habeas cases. Such a ruling, Nygaard said, “undermines both the appearance and fact of judicial neutrality, and I will have no part in it.” Nygaard said he would have followed decisions from the 6th and 9th circuits which held that a prosecutor’s failure to raise the AEDPA statute of limitations in its answer deprived the district court of its authority to subsequently raise the issue sua sponte. The 6th Circuit, in its 2002 decision in Scott v. Collins, held that allowing such sua sponte motions would amount to “an impermissible curing of the government’s waiver.” Nygaard complained that his colleagues in the majority had wrongly chosen to follow the 11th Circuit’s 2002 decision in Jackson v. Secretary for the Department of Corrections, which held that the government’s failure to raise the statute of limitations in its answer has no effect on a district court’s ability to raise the issue sua sponte. “We are on the wrong side of the split between the circuits,” Nygaard wrote. Concluding his dissent, Nygaard worried about the court’s eroding constitutional safeguards in the name of judicial economy, recalling one famous habeas litigant whose case established the right of indigent defendants to appointed counsel. “I constantly counsel myself and my law clerks that somewhere in the mass of usually convoluted, often marginally-comprehensible pro se habeas petitions, there is another Clarence Earl Gideon, or one of the other faceless names for whom we do issue the Great Writ,” he wrote. “Searching for those meritorious petitions is not only our duty, it is one of our most important… . In the name of reducing the docket of the district courts, and seduced by the lure of a one-line order, the majority evades its sacred duty.”

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