Guy Billy Lee SCOTT, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee, 286 F.3d 923

COLE, J., delivered the opinion of the court, in which SILER, J., joined. STAFFORD, D.J. (pp. 931-934), delivered a separate dissenting opinion. OPINION COLE, Circuit Judge. Petitioner-appellant Guy Billy Lee Scott, an inmate at the Ross Correctional Institution in Chillicothe, Ohio, appeals the district court’s sua sponte order dismissing his petition for a writ of habeas corpus. The district court dismissed Scott’s habeas petition as barred under the one-year statute of limitations imposed by 28 U.S.C. § 2244(d).

For the reasons stated below, we REVERSE the district court’s decision and REMAND for further consideration of Scott’s petition. I. On February 18, 1992, a jury in the Butler County, Ohio Court of Common Pleas convicted Scott for the murder, anal rape, and misdemeanor assault of Lesa Buckley. Scott received consecutive sentences of fifteen years to life for murder and fifteen to twenty-five years for rape as well as two concurrent sentences for the assault charges. Scott appealed his convictions and identified seventeen assignments of error.

On August 1, 1994, the Ohio Twelfth District Court of Appeals ruled against Scott on all counts. Citing four errors in the Court of Appeals’ decision, Scott appealed to the Ohio Supreme Court, which declined to review Scott’s ease on December 14,1994. Without having any success through direct appeal, Scott collaterally challenged his criminal convictions by filing a motion for post-conviction relief with the Butler County Common Pleas Court on September 20, 1996. Scott offered six reasons why the Common Pleas Court should vacate the judgment and sentence, but the court rejected each reason on November 1, 1996.

Citing seven assignments of error in that court’s decision, Scott appealed to the Ohio Twelfth District Court of Appeals, which ruled against him on October 13, 1997. Scott appealed that decision to the Ohio Supreme Court, which declined review on January 28,1998. After these repeated rejections by Ohio courts, Scott took his case into the federal court system. On January 25, 1999, Scott petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Ohio.

Three days after receiving the habeas petition, a federal magistrate judge issued an order (the “January 28 Order”), which instructed respondent, Terry Collins, to file a return of writ that “should include” an allegation of “whether petitioner’s claims are barred by the one-year statute of limitations established in

Section 101 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.A. § 2244(d) (West Supp.1996).” Respondent timely filed a thirty-eight page return of writ that did not include an allegation that Scott’s petition was barred by the § 2244(

d) one-year statute of limitations. After respondent failed to address the statute of limitations issue, the magistrate judge issued an order explaining why Scott’s petition was barred by § 2244(d). In the same order, the magistrate judge commanded Scott to “show cause, in writing, within twenty (20) days of the date of filing of this Order why this Court should not dismiss this action as time-barred.” After receiving an extension of time to respond, Scott responded with five reasons why the statute of limitations should not bar his habeas corpus petition.

Unpersuaded by the reasons Scott offered, the district court dismissed Scott’s petition with prejudice on statute of limitations grounds. The district court thoroughly explained its basis for rejecting Scott’s habeas petition on statute of limitations grounds in its order. For cases not petitioning the United States Supreme Court for a writ of certiorari, the district court reasoned that the statute of limitations begins to run ninety days (the time allotted for filing a writ of certiorari) after the conclusion of all direct criminal appeals in the state system.

Because the Ohio Supreme Court declined Scott’s appeal on December 14, 1994, the district court noted that, were it enacted at that point, the statute of limitations would have begun running ninety days later-in mid-March 1995. However, recognizing that § 2244(

d) did not become law until April 24, 1996, the district court concluded that the statute of limitations began to run on that date instead. Next, the district court acknowledged that under § 2244(d)(2), the statute of limitations is tolled during the pendency of properly filed applications for state post-conviction relief. Thus, after approximately five months had run on the statute of limitations, Scott tolled the statute of limitations by filing for state post-conviction relief on September 20,1996.

The statute of limitations resumed on January 28, 1998, when the Ohio Supreme Court declined review of Scott’s motion for post-conviction relief. Because the remaining seven months of the statute of limitations expired in approximately August 1998, the district court barred Scott’s January 25, 1999 petition for habeas relief. Although it dismissed Scott’s petition, the district court granted Scott a certificate of appealability (“COA”) on the limited issue of whether the statute of limitations barred Scott’s habeas petition. With the COA, Scott timely appealed his case to the Sixth Circuit.

In his appellate brief, Scott realleged his actual innocence of the anal rape conviction and argued against the application the statute of limitations to his petition for four reasons: (

i) respondent waived the statute of limitations defense; (ii) the court violated its duty to be fair and impartial by asserting a waived defense on behalf of the respondent; (iii) Scott’s petition is entitled to the benefit of equitable tolling of the statute of limitations; and (iv) applying the statute of limitations to Scott as a first time habeas petitioner unconstitutionally suspends the writ of habeas corpus. In reply to these arguments, respondent contends that Scott’s petition is barred by § 2244(

d) because (

i) the district court had authority to consider sua sponte the timeliness of the petition and the district court did not err in holding that Scott’s petition was untimely; (ii) the district court properly held that Scott was not entitled to the benefits of equitable tolling; and (iii) the application of the statute of limitations to Scott’s case is not an unconstitutional suspension of the writ of habeas corpus. Later, the Ohio Association of Criminal Defense Lawyers and the Ohio Public Defender filed amici briefs urging reversal of the district court’s dismissal of Scott’s petition.

The question of whether the district court properly applied the statute of limitations to Scott’s habeas petition is now before this Court. II. Two initial observations are necessary before analyzing the merits of Scott’s appeal. First, the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), which became law on April 24, 1996, governs Scott’s habeas petition because Scott filed his habeas petition on January 25, 1999 — after the effective date of AED-PA. See Bronaugh v.

Ohio, 235 F.3d 280, 282 (6th Cir.2001) (applying AEDPA’s one-year statute of limitations to a habeas petition that was filed on April 24, 1996); Harris v. Stovall, 212 F.3d 940, 941 (6th Cir.2000). Second, a court of appeals reviews a district court’s disposition of a habeas corpus petition de novo. Bronaugh, 235 F.3d at 282; Harris, 212 F.3d at 941. Thus, Scott’s four assignments of error will be analyzed under AEDPA and the district court’s decision will be reviewed de novo. A. Waiver The first issue presented for review is whether respondent waived the ability to assert the statute of limitations defense.

Without addressing the effect of the district court’s sua sponte actions at this point, we conclude that respondent waived the statute of limitations defense. To avoid waiver under the rules of pleading and to comply with the court order, respondent had to plead the § 2244(

d) statute of limitations defense. The § 2244(

d) statute of limitations defense is an affirmative defense as opposed to a jurisdictional defect. See Hill v. Braxton, 277 F.3d 701, 705 (4th Cir.2002); Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000) (“The AEDPA statute of limitations is not jurisdictional, and nothing in the AEDPA or in the § 2254 Habeas Rules indicates that the burden of pleading the statute of limitations has been shifted from the respondent to the petitioner. The AEDPA statute of limitations is therefore an affirmative defense and compliance therewith need not be pleaded in the petition.”) (citations omitted); Kiser v.

Johnson, 163 F.3d 326, 329 (5th Cir.1999) (recognizing that “the statute of limitations provision of the AEDPA is an affirmative defenses rather than jurisdictional”); United States ex rel. Galvan v. Gilmore, 997 F.Supp. 1019, 1026 (N.D.Ill.1998) (“[Sjince § 2244(

d) does not affect this court’s subject matter jurisdiction over ha-beas petitions, the state can waive the § 2244(

d) timeliness issue by failing to raise it.”) (citations omitted). Because the § 2244(

d) statute of limitations is an affirmative defense, Rule 8(

c) of the Federal Rules of Civil Procedure requires that a party raise it in the first responsive pleading to avoid waiving it. Fed.R.Civ.P. 8(c) (“In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense.”); Haskell v. Washington Township, 864 F.2d 1266, 1273 (6th Cir.1988) (“Pursuant to Rule 8(

c) of the Federal Rules of Civil Procedure, a defense based upon a statute of limitations is waived if not raised in the first responsive pleading.”); see also Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir.1994) (“Generally, a failure to plead an affirmative defense, like statute of limitations, results in the waiver of that defense and its exclusion from the case.”); Carrington v. Robinson, 2001 WL 558232, at *4 (E.D.Mich. Mar,27, 2001) (explaining that “[t]he statute of limitations provision of the AEDPA is an affirmative defense”); 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1278, at 477 (2d ed. 1990) (“Generally, a failure to plead an affirmative defense results in the waiver of that defense and its exclusion from the case.”). The Sixth Circuit is not alone in recognizing that a respondent who does not raise the § 2244(

d) statute of limitations defense, waives it. See, e.g., Galvan, 997 F.Supp. at 1026 (“[S]ince the state did not raise the § 2244(

d) limitations argument in this case, we find that it has been waived.”); Samuel v. Duncan, 92 F.3d 1194, 1996 WL 413632, at *1 (9th Cir. July 8, 1996) (explaining that the government waived the § 2244(

d) statute of limitations defense by not raising the defense when the habeas petition was filed after the one-year statute had run). Despite these cases underscoring the need to raise the statute of limitations defense, respondent’s thirty-eight-page return of writ did not assert that defense. Respondent’s failure to raise the statute of limitations defense takes on even greater significance in light of paragraph four of the district court’s January 28, 1999 Order, which commanded respondent to file a return of writ that included an allegation of whether petitioner’s claims were barred by the § 2244(

d) one-year statute of limitations. Putting the pieces together, respondent’s failure to raise the statute of limitations defenses as required by both the rules of pleading and the district court’s January 28 Order amounted to a waiver of that defense. Respondent counters the waiver argument by contending that waiver is not complete because Rule 15(

a) of the Federal Rules of Civil Procedure allows for the amendment of the return of writ. Respondent’s counter-argument fails. Although Rule 15(

a) allows for the possibility of amending a pleading to include a previously omitted affirmative defense, the mere possibility of amendment through Rule 15(

a) does not cure respondent’s actual failure to raise the defense. In sum, the statute of limitations in § 2244(

d) is an affirmative defense that must be pleaded to avoid waiver. Here, respondent did not plead the statute of limitations defense. Consequently, respondent waived it. B. The District Court’s Authority To Dismiss Sua Sponte A Habeas Petition Although respondent failed to raise the statute of limitations defense, the district court sua sponte dismissed Scott’s habeas petition. Scott argues that by asserting the statute of limitations defense sua sponte, the district court violated its duty to be fair and impartial.

Respondent counters by referencing several instances where district courts have sua sponte dismissed habeas petitions on statute of limitations grounds. Although the myriad of cases cited by respondent is generally helpful, none of those cases addresses the precise issue presented here. For instance, many of the cases consider only the question of a district court’s ability to dismiss sua sponte a habeas petition as an initial matter, not after a finding that respondent waived the defense.

Other cases pertain exclusively to the statute of limitations in § 2255 for habeas motions for relief from federal sentences as opposed to the § 2244 statute of limitations for habeas petitions for relief from state sentences. In deciding the question of whether a district court may sua sponte cure a respondent’s waiver of the § 2244(

d) statute of limitations defense, we first examine the scope of a district court’s power to dismiss a habeas petition sua sponte. Rule 4 Governing

Section 2254 Cases permits a district court to dismiss habeas petition sua sponte as an initial matter: The original petition shall be presented promptly to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its

summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.... Fed. R. Governing

Section 2254 Cases 4. Under this rule, after prompt examination, a judge may, as a matter of preliminary review, summarily dismiss the petition if it plainly appears from the face of the petition that the petitioner is not entitled to relief, See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000); Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir.1999); Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993); see also Boyd v.

Thompson, 147 F.3d 1124, 1128 (9th Cir.1998) (“Every circuit to consider the issue holds that a habeas court has discretion to raise procedural default sua sponte to further the interests of comity, federalism, and judicial efficiency.”). Rule 4’s use of the word “otherwise” indicates that, if, after prompt examination, a judge does not summarily dismiss the case, the judge must order respondent to either file an answer or take other appropriate action, Significantly, Rule 4 does not give a court continuing power to dismiss sua sponte the case after the court orders respondent to file an answer.

In short, Rule 4 gives a district court the ability to dismiss habeas petitions sua sponte, but that ability expires when the judge orders a respondent to file an answer or take other appropriate action. A district court’s ability to dismiss a habeas petition sua sponte as an initial matter (after giving the petitioner notice and an adequate opportunity to be heard) does not amount to a power to cure sua sponte a party’s waiver of an affirmative defense. See Haskell, 864 F.2d at 1273 (“Since [statute of limitations] is a waiva-ble defense, it ordinarily is error for a district court to raise the issue sua sponte.

Otherwise, the waiver aspect of Rule 8(

c) would have little meaning.”) (citations omitted); Edwards v. Armstrong, 59 F.3d 170, 1995 WL 390279, at *7 (6th Cir. June 30, 1995) (“A court thus commits error when it cures one party’s waiver by ruling sua sponte.”); see also Esslinger v. Davis, 44 F.3d 1515, 1527 (11th Cir.1995) (reversing district court’s sua sponte dismissal of a habeas petition after the state had waived an affirmative defenses because “[t]he court’s sua sponte invocation of the procedural default to bar relief, despite the State’s waiver, served no important federal interest.”).

As discussed above, Rule 4 permits sua sponte court action only as an initial matter. Thus, the district court’s sua sponte dismissal after it ordered respondent to answer and after respondent answered was not a dismissal as an initial matter. Instead, it was an impermissible curing of the respondent’s waiver. In addition to Rule 4, the Second Circuit has held that a district court may sua sponte dismiss a habeas petition on statute of limitations grounds where the dismissal “implicates values beyond the concerns of the parties.” Acosta, 221 F.3d at 123.

In reaching that result, the Second Circuit explained that “[t]he 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.” Id. To date, this Circuit has not adopted that rationale as a basis for sua sponte dismissal of habeas petitions on statute of limitations grounds.

Nevertheless, even if this Circuit were to adopt the Acosta holding in addition to Rule 4 as a basis for a district court’s sua sponte dismissal of a habeas petition, the result here remains unchanged. In Acosta, the Second Circuit’s articulation of the “values beyond the concerns of the parties,” are set forth only to justify a district court’s sua sponte dismissal of a habeas petition as an initial matter. For that reason, our holding is not inconsistent with Acosta because here, unlike Acosta, the respondent waived the statute of limitations affirmative defense.

Furthermore, Acosta does not suggest that the “values beyond the concerns of the parties” justify granting a district court the ability to dismiss a habeas petition sua sponte on statute of limitations grounds after respondent waived that defense. In sum, the district court’s sua sponte dismissal was not a preliminary matter. Therefore, the district court’s sua sponte action improperly cured respondent’s waiver. Thus, the district court erred in dismissing Scott’s petition on statute of limitations grounds.

For that reason, we remand this case to the district court for consideration of the merits of Scott’s habe-as petition. We note that this result in no way undermines a court’s power to dismiss a habeas petition sua sponte as a preliminary matter. Nor does it prohibit a court from dismissing a habeas petition on statute of limitations grounds at a later time if the respondent raises the statute of limitations affirmative defense. III.

This case presents a rare and unusual situation where the district court sua sponte dismissed a habeas petition on statute of limitations grounds after the respondent had waived the statute of limitations defense. Under those facts, the district court erred by sua sponte correcting respondent’s waiver by dismissing the petition. For that reason, the district court’s decision is REVERSED and the case is REMANDED to the district court for consideration of the merits of Scott’s habeas petition.

In light of this remand order, the remaining two issues, equitable tolling and unconstitutional suspension, are moot and we refrain from addressing them here. . An intervening Supreme Court decision, Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), indirectly interrupted Scott's appeal.

In Slack, the Supreme Court held that in cases where a habe-as petition has been dismissed on procedural grounds without reaching the prisoner’s underlying constitutional claims, a COA may issue only after a showing that (i) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (ii) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478, 120 S.Ct. 1595.

In light of the Slack holding, the Sixth Circuit remanded Scott's appeal to the district court to reassess the issuance of the COA. On remand, the district court acknowledged that in issuing the COA, it considered only the second Slack prong. After evaluating the first Slack prong, the district court concluded that the issuance of the COA was still proper. . The dissent interprets the district court's COA as applying to only a narrow statute of limitations issue.

While we acknowledge that 28 U.S.C. § 2253(c)(3) requires that a habeas petitioner specify issues for appeal in a COA, we do not read that requirement as excluding Scott’s arguments here. The COA allowed Scott to appeal the issue of whether his petition was barred due to the § 2244(

d) statute of limitations. Consistent with the COA, each of Scott's arguments relates to why his petition should not be barred from review due to the § 2244(

d) statute of limitations. . The Supreme Court distinguishes “waiver" from "forfeiture.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is Ifie 'intentional relinquishment or abandonment of a known right.’ ”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 894 n. 2, 111 S.Ct. 2631, 115 L.Ed.2d 764 (Scalia, J., concurring).

Although respondent's failure to assert the statute of limitations defense may technically constitute a "forfeiture,” we use to the term "waiver” throughout this opinion to comport with our historical use of that term. See Freytag, 501 U.S. at 894 n. 2, 111 S.Ct. 2631 (Scalia, J., concurring) ("I shall not try to retain the distinction between waiver and forfeiture throughout this opinion, since many of the sources I shall be using disregard it.”). . Rule 8 applies here by virtue of Rule 11 of the Federal Rules Governing

Section 2254 Cases. See Fed. R. Governing

Section 2254 Cases 11 ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”). . Respondent relies most heavily upon the following cases: Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir.2001) ("Thus, while the district court has the authority to raise the statute of limitations sua sponte and to dismiss the petition on those grounds, that authority should only be exercised after the court provides the petitioner with adequate notice and an opportunity to respond."); Acosta v.

Artuz, 221 F.3d 117, 122 (2d Cir.2000) (holding that "a district court has the authority to raise the AEDPA statute of limitations on its own motion”); Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir.1999) ("In sum, even though the statute of limitations provision of the AEDPA is an affirmative defense rather than jurisdictional, the magistrate judge and district court did not err by raising the defense sua sponte.”); Carson v. Burke, 178 F.3d 434, 437 (6th Cir.1999) (affirming the district court's dismissal of a habeas petition after preliminary review based on Rule 4 of the Rules Governing

Section 2254 Cases); Guthrie v. Michigan, 194 F.3d 1312, 1999 WL 801502, at *1 (6th Cir. Sept.30, 1999) (approving a district court’s sua sponte dismissal of a habeas petition on statute of limitations grounds as an initial matter); Carrington, 2001 WL 558232, at *4 (noting that the court's assertion of the statute of limitations affirmative defense as an initial matter is not in error); Hopson v. Jones, 2001 U.S. Dist. LEXIS 4931 at *15-16 (N.D.Ala. Mar. 30, 2001); see also Celikoski v. United States, 2001 WL 1298835, at *2 (1st Cir.

Oct.25, 2001) (affirming the sua sponte dismissal of a § 2255 habeas motion on statute of limitations grounds); Parke v. United States, No. 97-CV-526, 1998 WL 326762, at *3 (N.D.N.Y. Apr. 27, 1998) (dismissing sua sponte a petitioner's motion to vacate under the one-year statute of limitations in § 2255 after the parties had waived the statute of limitations defense); United States v. Terry, 1997 WL 662477, at *2 (N.D.N.Y. Oct. 22, 1997) (dismissing sua sponte a petitioner's motion under the § 2255 statute of limitations after also considering and affirming independent bases for dismissal). .

Here, we are presented with the situation where a district court gave notice and an adequate opportunity to be heard then sua sponte dismissed a habeas petition even though respondent ignored the court order and did not raise an affirmative defense, which resulted in waiver. . See Herbst, 260 F.3d at 1043; Acosta, 221 F.3d at 122; Kiser, 163 F.3d at 329; Carson, 178 F.3d at 437; Guthrie, 194 F.3d 1312, 1999 WL 801502, at *1; Carrington, 2001 WL 558232, at *4; Hopson, 2001 U.S. Dist. LEXIS 4931 at *15-16. . See Celikoski, 2001 WL 1298835, at *2; Parke, 1998 WL 326762, at *3; Terry, 1997 WL 662477, at *2. . Cf.

Scott v. Johnson, 227 F.3d 260, 262-63 (5th Cir.2000) (explaining in dicta and without reference to Rule 4 that for habeas cases “we also recognized that in Fisher, we had 'expressly left open the possibility that this court may, in the appropriate circumstances, apply the procedural bar sua sponte when the state has waived the defense in the district court.’ We stated that the pertinent concerns were whether the petitioner had notice of the issue and reasonable opportunity to argue against the bar, and whether the state had 'intentionally waived the defense.'") (citing Fisher v.

Texas, 169 F.3d 295, 301-02 (5th Cir.1999)). . The dissent argues that the interests of comity, finality, federalism and judicial economy all favor affirming the district court's dismissal on statute of limitations grounds. That approach pays little heed to the doctrine of waiver and the operation of Rule 4.

Moreover, the interests identified by the dissent are well preserved in light of a district court’s continued ability to dismiss sua sponte a ha-beas petition as an initial matter. .The conclusion that a court cannot dismiss a habeas petition sua sponte based on an unpleaded affirmative defense except as a matter of preliminary review is consistent with the Supreme Court's holding that a "court of appeals is not 'required' to raise the issue of procedural default sua sponte." Trest v.

Cain, 522 U.S. 87, 89, 90-91, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (refusing to consider the broader question of whether a court of appeals may raise a procedural default sua sponte); see also Fisher, 169 F.3d at 301 ("We conclude, however, that even if we do have discretion in some circumstances to apply the procedural bar where the state has waived the defense in the district court, we will not exercise such discretion in this case.").