Monday, November 29, 2010

Court may raise SOL defense sua sponte

Gill v. United States, Nos. 3:10cv564, 3:06cr360, 2010 WL 4718321 (W.D.N.C. Nov. 15, 2010):

When reviewing a petition for a writ of habeas corpus under 28 U.S.C. § 2254, the District Court has the power to raise a statute of limitations defense sua sponte, but it is not required to do so.  Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002).  When this occurs, the District Court ought to provide notice to the petitioner and provide him with the opportunity to respond, "unless it is indisputably clear from the materials presented to the district court that the petition is untimely and cannot be salvaged by equitable tolling principles."  Id.; United States v. Sosa, 364 F.3d 507 (4th Cir. 2004).  Such practice also applies to actions under 28 U.S.C. § 2255.  Sosa, 364 F.3d at 510 n.4.

When (1) the 2255 form prompts a petitioner to explain why the one-year statute of limitations does not bar such motion, (2) petitioner's explanation is neither "extraordinary nor beyond his control," (3) petitioner's response indicates an understanding of the question asked and clearly attributes his failure to file a timely motion to his own inadvertence, and (4) it is indisputably clear that the motion is untimely and does not qualify for equitable tolling, then it is not unconscionable to enforce sua sponte the limitations period against him.

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