No. 03-2898.

393 F.3d 390 (2004)

Curtis LONG, Appellant v. Harry WILSON, Superintendent.

United States Court of Appeals, Third Circuit.

Filed December 29, 2004.

Attorney(s) appearing for the Case

Jeremy A. Mercer, (Argued), Kenneth M. Argentieri, Melissa L. Irr, Maureen E. Geary, Kirkpatrick & Lockhart LLP, Pittsburgh, PA, for Appellant.

Michael Handler, (Argued), Assistant District Attorney for Appeals and Legal Research, Office of the District Attorney of Indiana County, Indiana, PA, for Appellee.

Before SCIRICA, Chief Judge, FISHER and BECKER, Circuit Judges.

BECKER, Circuit Judge.

Curtis Long appeals from an order of the District Court which denied his petition for a writ of habeas corpus after concluding that, even though the Commonwealth failed to raise the statute of limitations defense, 28 U.S.C. § 2244(d)(1), in the answer to the petition, it had not waived the defense because it advanced it after the Magistrate Judge sua sponte flagged it in her report. This appeal requires us to decide whether this...


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