PARKER, Circuit Judge:
Dennis Acevedo (98-2047) and Dana Mozell (99-2515) appeal from the judgments of the United States District Court for the Eastern District of New York (David G. Trager, Judge) entered December 18, 1997, and the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge) entered July 27, 1999, dismissing their respective petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") as untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). In each case, the district court sua sponte dismissed the petition without providing the petitioner notice and an opportunity to be heard. This Court granted a certificate of appealability, consolidated these and two other appeals,
For the reasons stated below, we hold that while a district court has the authority to raise the apparent untimeliness of a habeas petition on its own motion, the courts below erred in dismissing the petitions as untimely without providing petitioners prior notice and an opportunity to be heard. We therefore vacate and remand for further proceedings consistent with this opinion.
AEDPA provides a one-year period of limitation for filing habeas petitions pursuant to Section 2254. See 28 U.S.C. § 2244(d)(1). Depending on the circumstances surrounding the claims, the limitation period runs from one of several dates:
28 U.S.C. § 2244(d)(1)(A)-(D). The limitation period is tolled during the time that a properly filed application for state post-conviction review is pending, see id. at § 2244(d)(2), and may be equitably tolled where appropriate, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (per curiam).
In this case, each of the petitioners filed pro se a petition for a writ of habeas corpus on Form AO 241 (Rev.5/85) (the "AO Form"). As required by Rule 2(c) the Rules Governing Section 2254 Cases in the United States District Courts (the "2254 Habeas Rules"), the AO Form is substantially the same as the form annexed to the 2254 Habeas Rules (the "2254 Habeas Rules Form"). See 2254 Habeas Rule 2(c) (petition must be in "substantially the form annexed to the rules"). The 2254 Habeas Rules Form was last amended on April 28, 1982. The AO Form was last revised in
Acevedo filed his petition for a writ of habeas corpus on December 9, 1997. The petition contained the following relevant information. Acevedo was convicted after a jury trial of first degree robbery and possession of a hypodermic instrument. On July 21, 1991, the Appellate Division, Second Department, affirmed Acevedo's conviction. On May 19, 1995, the New York Court of Appeals denied his application for leave to appeal. He did not file a petition for a writ of certiorari to the Supreme Court of the United States. As of the date of filing this petition, he had not filed any other post-conviction petitions in federal or state court.
Based on the information provided by Acevedo in his petition, his conviction became final on August 17, 1995 "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired." Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998); see Smith, 208 F.3d at 15 n. 1 (citing Ross as holding that a conviction becomes final for purposes of AEDPA's limitation and grace period upon the expiration of the time to seek direct review in the United States Supreme Court by writ of certiorari). Because Acevedo's conviction became final before the enactment of AEDPA, the one-year period of limitation under 28 U.S.C. § 2244(d)(1)(A) began to run on April 24, 1996, the date of enactment. See Ross, 150 F.3d at 98. Thus, his December 9, 1997 petition was clearly untimely under Section 2244(d)(1)(A).
Although Acevedo's petition was clearly untimely under Section 2244(d)(1)(A), his petition provided insufficient information to determine whether any of the special circumstances of 28 U.S.C. § 2244(d)(1)(B), (C), or (D), or equitable tolling, applied. Nevertheless, on December 15, 1997, without providing Acevedo notice and opportunity to be heard, the district court sua sponte dismissed the petition on the ground that it was untimely on its face:
Acevedo timely appealed and now argues that he was entitled to notice and an opportunity to be heard prior to dismissal of his petition.
Mozell filed his petition for a writ of habeas corpus on December 1, 1998. His petition contained the following relevant information. Mozell was convicted after a jury trial of second degree manslaughter and conspiracy to commit murder. On January 2, 1996, the Connecticut Appellate Court affirmed the conviction. On February 21, 1996, the Connecticut Supreme Court denied Mozell leave to appeal. Mozell did not apply for a writ of certiorari to the United States Supreme Court. As of the date of filing his petition, he had not filed any other post-conviction petitions in federal or state court.
Based on the information provided by Mozell in his petition, his conviction became final on May 21, 1996 when his time to seek direct review in the United States Supreme Court by writ of certiorari expired. See Ross, 150 F.3d at 98. His time to file pursuant to Section 2244(d)(1)(A) expired on May 21, 1997, and his December 1, 1998 petition was therefore untimely under that subsection.
Mozell timely appealed and now argues that he was entitled to notice and an opportunity to be heard prior to dismissal of his petition.
This case presents two issues of first impression in this Circuit: (1) the authority of the court to raise on its own motion a habeas petitioner's apparent failure to comply with the AEDPA statute of limitation for Section 2254 petitions; and (2) the propriety of dismissing a habeas petition on such ground without providing the petitioner prior notice and an opportunity to be heard. We hold first that the district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion. In so holding, we follow a long line of precedent establishing the authority of courts to raise sua sponte affirmative defenses where the defense implicates values beyond the interests of the parties. See Snider v. Melindez, 199 F.3d 108, 112 (2d Cir.1999) (failure to exhaust under the PLRA); Femia v. United States, 47 F.3d 519, 523 (2d Cir.1995) (abuse of the writ); United States v. Vincent, 507 F.2d 1309, 1312 (2d Cir.1974) (failure to exhaust in habeas case); see also, e.g., Yeatts v. Angelone, 166 F.3d 255, 262 (4th Cir.1999) (procedural default); Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir.1999) (AEDPA statute of limitation); id. (citing Fifth Circuit cases holding that courts have the power to raise sua sponte procedural default, exhaustion, and abuse of the writ); Hardiman v. Reynolds, 971 F.2d 500, 504 (10th Cir.1992) (state procedural default in Section 2254 case); Hines v. United States, 971 F.2d 506, 509 (10th Cir.1992) (procedural default in Section 2255 case); Brown v. Fauver, 819 F.2d 395, 398 (3d Cir.1987) (exhaustion); Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 139 (6th Cir.1970) (exhaustion). If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground. Here, we apply the well-established principle that "a person is entitled to notice before adverse judicial action is taken against him." Lugo v. Keane, 15 F.3d 29, 30 (2d Cir.1994).
A. The AEDPA Statute of Limitation Is an Affirmative Defense
Respondents argue without authority that the petitioners are responsible for pleading compliance with the AEDPA statute of limitation in their applications for relief. Where a statute of limitation is not jurisdictional, however, it is considered an affirmative defense and, absent authority to the contrary, must be pleaded by the responding party. See Fed.R.Civ.P. 8(c)
B. A Court May Sua Sponte Raise the Untimeliness of a Section 2254 Habeas Petition
Generally, courts should not raise sua sponte nonjurisdictional defenses not raised by the parties. See Hardiman, 971 F.2d at 502 (quoting United States v. Burke, 504 U.S. 229, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992) (Scalia, J., concurring) ("The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one.")). There is an exception to this general rule, however, "where a `doctrine implicates . . . values that may transcend the concerns of the parties to an action . . . .'" Femia, 47 F.3d at 523 (quoting Hardiman, 971 F.2d at 502-03 (affirming power of district court to raise sua sponte defense of state procedural default in habeas case) (quoting Brown, 819 F.2d at 398 (affirming power of district court to raise sua sponte defense of exhaustion in habeas case))).
In Femia, this Court held that a district court has the power to raise sua sponte the affirmative defense of abuse of the writ. See 47 F.3d at 523. The Court acknowledged that the Supreme Court had recently reaffirmed that the government bears the burden of pleading the affirmative defense of abuse of the writ, see id. at 522 (citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), superceded in part by 28 U.S.C. § 2244(b) (1996)), but nevertheless held that it was appropriate for the district court to invoke the doctrine of the abuse of writ on its own motion because the doctrine implicated values that transcended the concerns of the parties, see id. at 522-23, 111 S.Ct. 1454. "When court processes are abused, the administration of justice is adversely affected to the detriment of the public. . . . [T]he primary concern behind the abuse-of-writ doctrine is one of judicial economy." Id. at 523, 111 S.Ct. 1454.
In Hardiman, the Tenth Circuit concluded that the doctrine of state procedural default in habeas cases was "grounded upon concerns of comity between sovereigns and often upon consideration of judicial efficiency." 971 F.2d at 503. "[T]he procedural default defense . . . affects the expenditure of scarce federal judicial resources," id., and "encourages efficiency by channeling disputes to the best forum for their resolution . . . while the record is fresh," id. at 504. In Hines, the companion case to Hardiman, the Tenth Circuit concluded that the Frady defense to a Section 2255 petition (failure to raise the issue on direct appeal), implicated concerns of "finality, docket control, and judicial
The AEDPA statute of limitation also implicates values beyond the concerns of the parties. The statute of limitation in Section 2244(d) "was Congress' primary vehicle for streamlining the habeas review process and lending finality to state convictions." Walker v. Artuz, 208 F.3d 357, 361 (2d Cir.2000); cf. Schlup v. Delo, 513 U.S. 298, 322, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (stating that on collateral review, courts should "accommodate . . . the systemic interests in finality . . . and conservation of judicial resources"). The AEDPA statute of limitation 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. Like the other procedural bars to habeas review of state court judgments, the statute of limitation implicates the interests of both the federal and state courts, as well as the interests of society, and therefore "it is not inappropriate for the court, on its own motion, to invoke the doctrine." Brown, 819 F.2d at 398; see also Williams v. Boone, 166 F.3d 1223, 1999 WL 34856, at *3 (10th Cir. Jan.28, 1999) (unpublished opinion) (relying on the reasoning in Hardiman, 971 F.2d at 502-04, that certain defenses implicate values beyond the concerns of the parties to hold that "the district court did not err in denying sua sponte [the] petition as untimely [under AEDPA].").
Furthermore, the authority to raise these procedural defenses sua sponte is consistent with the authority provided to the district courts in 2254 Habeas Rule 4 and 2255 Habeas Rule 4(b). See Hardiman, 971 F.2d at 504; Hines, 971 F.2d at 509. These rules give the district court the power to review and dismiss habeas petitions prior to any responsive pleading by the state, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." 2254 Habeas Rule 4; see 2255 Habeas Rule 4(b). With respect to Section 2254 petitions, Rule 4 "indicates that Congress intended the courts to play a more active role in § 2254 cases than they generally play in many other kinds of cases." Hardiman, 971 F.2d at 504.
In Kiser, the Fifth Circuit relied on 2254 Habeas Rule 4 to hold that "the district court was within its authority . . . when it raised the AEDPA's statute of limitations defense sua sponte." 163 F.3d at 329. "This power is rooted in `the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.'" Id. at 328 (quoting 2254 Habeas Rule 4 Advisory Committee Note). The Court also relied on its own precedent establishing the authority of the court to raise sua sponte in habeas cases the affirmative defenses of procedural default, exhaustion, and abuse of the writ, and its precedent establishing that "the statute of limitations affirmative defense may be raised sua sponte in civil actions brought by prisoners under 28 U.S.C. § 1915." Id. at 329.
We agree with the Tenth and Fifth Circuits that a district court has the authority to raise the AEDPA statute of limitation on its own motion. Thus, it was not error for the courts below to raise sua sponte the untimeliness of these petitions.
C. Notice and an Opportunity To Be Heard
Although the courts below had the authority to raise the AEDPA statute of limitation defense on their own motion, the judgments must nevertheless be vacated because the courts dismissed without affording the petitioners notice and an opportunity to be heard. See Snider, 199 F.3d at 112 ("The problem with the court's dismissal was not that it was done on the court's own motion, but rather that it was done without affording [petitioner] notice and opportunity to be heard."). The long-standing general rule is that a court may not dismiss an action without providing the adversely affected party with notice and an opportunity to be heard. See Lugo, 15 F.3d at 30; Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir.1988); Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1365 (2d Cir.1985) ("`Failure to afford an opportunity to address the court's sua sponte motion to dismiss is, by itself, grounds for reversal.'") (quoting Lewis v. New York, 547 F.2d 4, 5-6 & n. 4 (2d Cir.1976)).
Snider, 199 F.3d at 113 (internal quotation marks, citation, and alterations omitted).
This Court has addressed sua sponte dismissal of a habeas petition without notice and an opportunity to be heard in the context of dismissal for abuse of the writ. In Lugo, this Court held that "a district court may not properly dismiss a habeas petition on the ground of abuse of the writ without providing the petitioner with notice of the proposed dismissal and an opportunity to be heard in opposition." 15 F.3d at 31 (§ 2254 petition). The Court acknowledged that 2254 Habeas Rule 4 "provides for a sua sponte dismissal of a habeas petition on its merits, to be followed by notice," but noted that there is no provision for sua sponte dismissal without prior notice on the ground of abuse of the writ. Id. at 30. In Femia, the Court stated that Lugo left open the question "whether, notwithstanding the general rule, there are certain instances in which a petition may be dismissed for abuse of the writ without prior notice to petitioner." Femia, 47 F.3d at 522 (§ 2255 petition). The Court then held that "the grounds for the dismissal determine whether prior notice to the petitioner is required before a district court can dismiss a habeas corpus petition sua sponte for abuse of the writ." Id. at 524. Where the dismissal is based on procedural grounds (i.e., failure to show cause why the issue was not raised in an earlier petition), the district court must provide notice and an opportunity to be heard prior to dismissal; where the dismissal is based on the merits (i.e., lack of actual prejudice), no prior notice is required:
Id. at 524 (citations omitted).
The "factors" used to determine "cause" in Femia (i.e., "official interference or the reasonable unavailability to counsel of a factual or legal basis for a claim," 47 F.3d at 524) are the same factors giving rise to the "special circumstances" of 28 U.S.C. § 2244(d)(1)(B), (C), and (D), and to equitable tolling. The existence of an unconstitutional impediment to filing a claim, see id. at § 2244(d)(1)(B), is similar to "official interference." A situation where the constitutional right was recognized and made retroactive on collateral review after the date the conviction became final, see id. at § 2244(d)(1)(C), is similar to "unavailability . . . of a . . . legal basis for a claim." And a situation where the factual basis for the claim first became discoverable through the exercise of due diligence after the date the conviction became final, see id. at § 2244(d)(1)(D), is similar to "unavailability . . . of a factual . . . basis for a claim." Similar factors are used to determine the applicability of equitable tolling.
As the Femia Court noted, these factors are usually outside of the record and often will not be fully addressed in the petition of an unlearned and unskilled pro se petitioner. See 47 F.3d at 524; see also 2254 Habeas Rule 4 Advisory Committee Note (giving procedural grounds for dismissal, such as failure to exhaust and successive petitions, as examples of situations where the court may want to authorize respondent to make a motion to dismiss on notice); Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998) ("When dealing with a pro se petitioner, the court must make clear the procedural default at issue and the consequences of failing to respond [before summarily dismissing petition on basis of procedural default]."). Moreover, the problem of unlearned and unskilled pro se petitioners inadequately addressing the statute of limitation in the petition is compounded in this case by the fact that the outdated AO Forms given to these prisoners are not designed to elicit any information concerning these factors. See Snider, 199 F.3d at 114 n. 3 (noting the difficulty presented by the use of an incomplete and confusing standard form that "fails to warn the prisoner that certain answers will lead to the dismissal of his action"). In such circumstances, prior notice and an opportunity to be heard is "essential." Femia, 47 F.3d at 524.
Thus, unless it is unmistakably clear from the facts alleged in the petition, considering all of the special circumstances enumerated in Section 2244(d)(1), equitable tolling, and any other factor relevant to the timeliness of the petition, that the petition is untimely, the court may not dismiss a Section 2254 petition for untimeliness without providing petitioner prior notice and opportunity to be heard. See Snider, 199 F.3d at 113; Lugo, 15 F.3d at 30; cf. Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980) (approving sua sponte dismissal on ground of statute of limitations where raised in answer and all facts necessary for defense appeared in complaint). The petitions in this case do not provide enough information to determine anything more than that petitioners
For the foregoing reasons, the judgments of the courts below are vacated, and the petitions are remanded for further proceedings consistent with this opinion.