Jerry Rogers McMillan v.  MACK JARVIS, North Carolina Department of Corrections; MICHAEL F. EASLEY

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JERRY ROGERS MCMILLAN,
Petitioner-Appellant,
v.
No. 02-6266  MACK JARVIS, North Carolina
Department of Corrections; MICHAEL
F. EASLEY,
Respondents-Appellees. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CA-00-339-3-1V)
Argued: February 26, 2003
Decided: June 12, 2003
Before NIEMEYER and TRAXLER, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Niemeyer and Senior Judge Beam joined.
COUNSEL
ARGUED: Christopher Thomas Nidel, Third-Year Law Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE

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LITIGATION CLINIC, Charlottesville, Virginia, for Appellant. San-
dra Wallace-Smith, Assistant Attorney General, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees. ON BRIEF: Neal Lawrence Walters, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION
CLINIC, Charlottesville, Virginia, for Appellant. Roy Cooper, Attor-
ney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.
OPINION
TRAXLER, Circuit Judge:
Jerry Rogers McMillan appeals the district court’s sua sponte dis-
missal of his petition for habeas relief under 28 U.S.C.A. § 2254
(West 1994 & Supp. 2002). The district court determined, based on
the face of the petition, that McMillan failed to file his claim within
the one-year limitation period, see 28 U.S.C.A. § 2244(d) (West
Supp. 2002), and dismissed McMillan’s petition. McMillan, who was
represented by counsel in district court, argues that he was entitled to
an opportunity to address the timeliness of his petition under Hill v.
Braxton, 277 F.3d 701 (4th Cir. 2002), which requires a federal
habeas court to notify a pro se petitioner that his petition is subject
to dismissal under § 2244(d) when the state has not yet filed a respon-
sive pleading or otherwise invoked the limitations bar, see id. at 707.
We hold that Hill’s notification requirement applies to habeas peti-
tioners represented by counsel as well as those proceeding pro se, but
we affirm the district court in this case because McMillan was ulti-
mately afforded sufficient opportunity to be heard on the timeliness
of his petition.
I.
In April 1995, McMillan was convicted in North Carolina state
court of felonious restraint, second-degree sexual assault, and second-
degree rape. He received sentences of three years, thirty years, and
thirty years, respectively, with the sentences running consecutively.
On direct appeal, the North Carolina Court of Appeals affirmed his
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convictions and sentences. On December 5, 1996, the North Carolina
Supreme Court denied his petition for a writ of certiorari, ending the
direct review process in state court. McMillan did not seek review in
the United States Supreme Court.
On July 1, 1998, McMillan filed a motion for appropriate relief
("MAR") in North Carolina state court, which was denied on Septem-
ber 15, 1998. McMillan then filed a certiorari petition seeking review
of the denial of his MAR in the North Carolina Court of Appeals,
which denied his petition on April 23, 1999. McMillan then filed
what was styled as a "Petition for Writ of Certiorari and/or Petition
for Error Coram Nobis and/or Petition for Writ of Supersedeas,"
which the North Carolina Court of Appeals also denied. Finally,
McMillan petitioned the North Carolina Supreme Court for a writ of
certiorari on the denial of his MAR. The North Carolina Supreme
Court denied the petition on November 4, 1999.
On July 10, 2000, McMillan filed, through his attorney, this federal
habeas action pursuant to § 2254. Before the state filed a responsive
pleading or otherwise raised the § 2244(d) limitations period, the dis-
trict court determined that McMillan’s § 2254 petition failed to satisfy
the terms of § 2244(d)(1), which requires a petitioner to file a § 2254
petition within one year from "the date on which the judgment
became final by the conclusion of direct review or the expiration of
time for seeking such review." The district court concluded that direct
review of McMillan’s conviction concluded on March 5, 1997, when
the time expired for filing a petition for a writ of certiorari in the
United States Supreme Court. See Harris v. Hutchinson, 209 F.3d
325, 328 n.1 (4th Cir. 2000). According to the district court’s calcula-
tion, the one-year period during which McMillan was required to file
his § 2254 petition thus expired on March 6, 1998. Because McMillan
did not file his MAR relief until July 1, 1998, nearly four months after
the expiration of the one-year limitation period, the district court con-
cluded that McMillan’s efforts to obtain collateral relief in state court
did not operate to toll the limitation period under § 2244(d)(2). Hav-
ing determined from the petition that McMillan failed to comply with
§ 2244(d), the district court dismissed McMillan’s § 2254 claims.
McMillan then filed a "Motion for Reconsideration," arguing that
the application of the one-year limitation period set forth in § 2244(d)
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was unconstitutional and, alternatively, that the doctrine of equitable
tolling should apply to allow him to file his § 2254 petition. Although
Rule 59(e) of the Federal Rules of Civil Procedure, the appropriate
vehicle for seeking "reconsideration" of a district court’s decision,
generally affords relief only in narrow circumstances, see Hill, 277
F.3d at 708; Collison v. International Chemical Workers Union, 34
F.3d 233, 236 (4th Cir. 1994), the district court gave full consider-
ation to each of McMillan’s contentions on the merits before ulti-
mately rejecting them.
On appeal, McMillan’s sole argument is that under Hill v. Braxton
the district court failed to provide adequate notice of its intention to
dismiss the petition as untimely and to allow him an adequate oppor-
tunity to explain why the limitations bar did not or should not apply
to McMillan’s petition. McMillan does not challenge the district
court’s disposition of his constitutional challenge to § 2244(d) or his
equitable tolling argument.
II.
We turn first to the question of whether the holding in Hill v. Brax-
ton extends to habeas petitioners who are represented by counsel. In
Hill, we held that a pro se habeas petitioner must be given an opportu-
nity to respond before a district court, acting sua sponte, dismisses a
§ 2254 petition as untimely:
[W]hen a federal habeas court, prior to trial, perceives a pro
se § 2254 petition to be untimely and the state has not filed
a motion to dismiss based on the one-year limitations
period, the court must warn the prisoner that the case is sub-
ject to dismissal pursuant to § 2244(d) absent a sufficient
explanation, unless it is indisputably clear from the materi-
als presented to the district court that the petition is untimely
and cannot be salvaged by equitable tolling principles or any
of the circumstances enumerated in § 2244(d)(1).
277 F.3d at 707. We reasoned first that "it is improbable . . . that it
would ever be clear from the face of the petition that the petitioner
is not entitled to relief" since "the statute of limitations is an affirma-
tive defense, [and] a habeas petitioner is not likely to plead detailed
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facts to refute this defense in the initial § 2254 petition." Id. at 706
(internal quotation marks omitted). A pro se petitioner is "less able to
anticipate affirmative defenses" than counsel and, therefore, is
unlikely to plead facts refuting the statute of limitations even if facts
exist that would support a strong argument against barring the § 2254
petition as untimely. Id. at 707. Hill observed that this problem is
compounded when a pro se petitioner is required to use a standard
form to file a § 2254 petition, as the petitioner in Hill was required
to do, and the form does not "direct him to address the timeliness
issue or ask him to include facts that might be outside of the record
but relevant to timeliness under § 2244(d)." Id. Second, we observed
that any facts supporting the application of equitable tolling or one of
the statutory exceptions to the limitations bar listed in § 2244(d)(1)
were unlikely to be part of the record before the district court. There-
fore, we concluded that when a district court, acting sua sponte, dis-
misses as untimely a § 2254 petition "without notice to or input from
the petitioner, the court cannot be certain that there are no circum-
stances that would cause the petition to be timely." Id. at 707. The
petitioner may well bring to light "facts not apparent to the court that
militate against the application of the limitations bar." Id.
Hill left open the question of whether a habeas petitioner is entitled
to a similar opportunity to respond even if he is represented by coun-
sel. In Hill, we did not foreclose the possibility that good reason
might exist to distinguish, for notice purposes, between pro se and
counseled cases, explaining that an opportunity to reply is "particu-
larly appropriate" for a pro se petitioner, who is less apt to anticipate
affirmative defenses than habeas counsel, especially where a pro se
petitioner must use a government form that does not prompt the peti-
tioner to plead facts establishing the timeliness of the § 2254 petition.
Id. Nevertheless, McMillan contends that the reasoning of Hill applies
with equal force to habeas petitioners represented by counsel. And,
we agree with McMillan, at least on this issue, that the justification
for affording more protection to pro se petitioners does not withstand
close scrutiny.
At bottom, the basis for requiring that a petitioner be permitted to
reply under these circumstances is that a district court, acting sua
sponte based solely on the petition, "cannot be certain that there are
no circumstances that would cause the petition to be timely." Id. In
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our view, this is true whether the petitioner is proceeding pro se or
not.
First, a district court that on its own raises the timeliness issue and
dismisses the § 2254 action on the basis of the petition alone is not
sure to have a complete picture of the relevant facts unless the peti-
tioner anticipates the statute of limitations affirmative defense. It is
true that habeas counsel is more likely to anticipate a timeliness prob-
lem and where he is able "might try to preempt an anticipated statute
of limitations defense by including facts to show that the petition is
timely." Id. Nonetheless, we cannot conclude that a § 2254 petition
filed by habeas counsel rather than a pro se petitioner will necessarily
contain facts relating to compliance with § 2244(d) such that the court
can be more certain than it would in a pro se action "that there are
no circumstances that would cause the petition to be timely." Id. In
fact, it may be just as likely that habeas counsel, as a matter of strat-
egy rather than ignorance, would not plead facts relating to the timeli-
ness issue in the initial § 2254 petition if, in counsel’s view, the
response to a potential limitations problem was not a slam dunk.
When counsel is not entirely certain that petitioner can avoid the bar
imposed for failure to comply with the one-year limitation period set
forth in § 2244(d), he may reasonably conclude that the best course
would be to leave open the possibility that the limitations period as
an affirmative defense will be waived. See id. at 705; see also Scott
v. Collins, 286 F.3d 923, 927 (6th Cir. 2002).
Because "the state bears the burden of asserting" the statute of limi-
tations defense under § 2244(d), a habeas petitioner is under no obli-
gation to allege facts in anticipation of an affirmative defense that has
not yet been raised by respondent. Hill, 277 F.3d at 705; see Gomez
v. Toledo, 446 U.S. 635, 640 (1980) (finding "no basis for imposing
on the plaintiff an obligation to anticipate such a defense by stating
in his complaint" facts that would refute a potential affirmative
defense). And, we perceive no basis for departing from this well-
established principle merely because petitioner is represented by
counsel. A requirement that habeas counsel allege facts in a § 2254
petition that would refute a potential defense under § 2244(d), or risk
having the petition dismissed, would relieve the state of its burden of
establishing a defense under § 2244(d) and eliminate habeas counsel’s
legitimate strategic option of not pleading facts in anticipation of a
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statute of limitations defense and forcing the respondent to bear its
own burden of identifying and raising potentially applicable affirma-
tive defenses. We do not perceive a good reason for requiring a
habeas petitioner to plead affirmatively with respect to the statute of
limitations, possibly pleading his § 2254 claims straight out of court,
merely because he is represented by counsel.
Of course, we recognize that the limitations period set forth in
§ 2244(d) is not a traditional affirmative defense which should be
raised, in the context of our adversarial system, by the parties alone,
without prompting from the court. There are broader interests at stake
in the proper handling of federal habeas actions than only those
belonging to the parties. The limitations period established by
§ 2244(d), in particular, is aimed at "‘curbing the abuse of the statu-
tory writ of habeas corpus.’" Crawley v. Catoe, 257 F.3d 395, 400
(4th Cir. 2001) (quoting H.R. Rep. No. 104-518 (1996), reprinted in
1996 U.S.C.C.A.N. 944), cert. denied, 534 U.S. 1080 (2002). Because
the public interest "eclipse[s] the immediate concerns of the parties
. . . federal habeas courts [enjoy] the discretionary authority to raise
affirmative defenses that have not been preserved by the state." Hill,
277 F.3d at 705; see Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.
1999). However, we do not view our decision to treat pro se and
counseled habeas petitioners alike — requiring neither one to plead
affirmatively with respect to avoiding the limitations bar — as inimi-
cal to the public interest. Indeed, a district court may still raise the
limitations period when the state has failed to do so or before it has
an opportunity to do so — Hill requires only that the court invite the
petitioner to articulate a reason that the action should not be dismissed
as untimely. Such a requirement preserves the broader public con-
cerns involved as well as the specific interests of the parties through
the adversarial process.
Finally, we observed in Hill that, in the absence of anticipatory
pleading by a habeas petitioner, the record will not likely reflect the
type of facts that permit petitioner to avoid the limitations bar of
§ 2244(d). See Hill, 277 F.3d at 706-07. This holds true even if
habeas counsel is involved. Facts supporting the application of equita-
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ble tolling, for example, would be outside of the record before a fed-
eral habeas court.* As Hill explained,
Because the statute of limitations is an affirmative defense,
a habeas petitioner is not likely to plead detailed facts to
refute this defense in the initial § 2254 petition. Although a
district court will usually be able to determine when a
§ 2254 petition is potentially untimely, § 2244(d)(1) lists
various (albeit narrow) circumstances under which a petition
may be timely even though, at first glance, the petition
appears to be barred by the limitations period. For example,
the commencement of the limitations period is delayed if a
state, in violation of the Constitution or a federal statute,
impedes a would-be habeas applicant from filing his action
under § 2254. See 28 U.S.C.A. § 2244(d)(1)(B). Any facts
relating to such a claim are unlikely to be part of the record.
The same can be said of facts that would justify the applica-
tion of equitable tolling. Thus, when a federal habeas court,
acting sua sponte, dismisses a § 2254 action as untimely
without notice to or input from the petitioner, the court can-
not be certain that there are no circumstances that would
cause the petition to be timely. The district court ought at
least to inquire whether there are any facts not apparent to
the court that militate against the application of the limita-
tions bar.
Id. at 706-07. Such reasoning clearly does not hinge on whether the
petitioner is represented by counsel.
In sum, we cannot find a reasonable basis for distinguishing
between pro se petitioners and petitioners represented by counsel for
*Equitable tolling applies generally to two situations. First, equitable
tolling has been applied where "plaintiffs were prevented from asserting
their claims by some kind of wrongful conduct on the part of the defen-
dant." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Second,
the doctrine applies when "extraordinary circumstances beyond plain-
tiffs’ control made it impossible to file the claims on time." Id. Obvi-
ously, facts giving rise to an equitable tolling claim would not ordinarily
be included in the record forwarded to the federal habeas court.
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purposes of notice and an opportunity to respond under Hill. In either
case, facts supporting a statutory exception to the one-year limitation
period, see § 2244(d)(1), or equitable tolling, are not likely to be facts
included in the habeas record before the district court. And, in neither
case will we require the petitioner to anticipate a potential statute of
limitations defense. Regardless of whether a habeas petitioner is rep-
resented by counsel or is proceeding pro se, that a § 2254 petition
does not allege facts that anticipate and refute a potential statute of
limitations affirmative defense does not mean no such facts exist. In
a counseled case the omission of such facts may be the result of a
deliberate strategic choice while, in a pro se case, the petitioner may
simply have failed to identify the statute of limitations as a defense
that the state could ultimately assert. Therefore, even when petitioner
has legal representation, a district court that dismisses sua sponte a
§ 2254 action based solely on the petition "cannot be certain that there
are no circumstances that would cause the petition to be timely." Hill,
277 F.3d at 707. Accordingly, we conclude that Hill’s requirement
that a petitioner be offered "an opportunity to explain why an appar-
ently untimely § 2254 application is subject to some exception," id.,
extends to both pro se habeas petitioners and those represented by
counsel.
III.
Unfortunately for McMillan, the fact that Hill’s notice requirement
is theoretically available does not assist him. The point of Hill is to
ensure that a district court does not prematurely dismiss a § 2254 peti-
tion as untimely before the petitioner has an adequate opportunity to
present facts "not apparent to the court that militate against the appli-
cation of the limitations bar." Id. Thus, Hill requires only that the peti-
tioner be given an opportunity to articulate a factual and legal basis,
if any, showing that the petition was filed within the limitation period.
Although the district court dismissed McMillan’s petition without
inviting a response from McMillan, the district court in fact allowed
him an opportunity to make his case, unfettered by the procedural
constraints of Rule 59(e). Thus, McMillan was permitted, and took
advantage of, an opportunity to explain why the limitations bar of
§ 2244(d) should not apply. McMillan raised a constitutional argu-
ment against the application of the statute of limitations as well as the
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equitable tolling doctrine. The district court rejected these arguments,
and McMillan has not pursued them on appeal. Moreover, McMillan
does not point to any specific fact or argument that he was not able
to present to the district court and concedes he is not aware of any
additional bases for avoiding the limitations bar. Thus, we conclude
that McMillan had his say on the timeliness of his § 2254 petition and
is not entitled to a remand. To the extent the district court committed
any error, it was harmless.
IV.
For the forgoing reasons, we affirm the decision of the district
court.
AFFIRMED
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