The opinion of the court was delivered by: William W. Caldwell United States District Judge
On September 28, 2011, Petitioner filed the present motion for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 26, 2012, we sua sponte raised the issue of the timeliness of the petition and allowed Petitioner twenty-one (21) days to respond. Presently before the court is Petitioner's response, which argues that the statute of limitation should be tolled, and his petition should be considered timely.
In 2007, Petitioner was convicted in the Lycoming County Court of Common Pleas of robbery, criminal conspiracy to commit robbery, theft by unlawful taking or disposition, receiving stolen property, possessing instruments of crime, and simple assault. On March 30, 2007, Petitioner filed a notice of appeal, but later withdrew the appeal on December 17, 2007. On January 10, 2008, Petitioner filed a Post-Conviction Relief Act ("PCRA") petition in the state trial court. The trial court denied relief, and the Pennsylvania Superior Court affirmed. The Pennsylvania Supreme Court denied the petition for allowance of appeal.
On February 1, 2011, Petitioner filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 11, 2011, we sent Petitioner an Order describing the limitations of filing subsequent 2254 petitions. On April 28, 2011, Petitioner moved to withdraw his first petition in order to later bring a more comprehensive, all-inclusive petition. On April 29, 2011, we granted Petitioner's request to withdraw his petition.
On September 28, 2011, Petitioner filed a second habeas petition. As explained in our April 26, 2012 Memorandum, this was eighty-five days following the expiration of the statute of limitations. On February 17, 2012, Respondents filed a response to the petition, but did not raise the statute of limitations. On April 26, 2012, we ordered Petitioner to file a brief opposing our determination that his petition is time-barred. Presently before the court is Petitioner's brief.
Petitioner does not dispute that his petition was not timely filed. Instead, he argues that Respondents waived the timeliness defense by failing to raise it in their Response. Alternatively, Petitioner asserts that the statute of limitations should be tolled.
A. Respondents' Failure to Raise Timeliness Petitioner asserts that the statute of limitations defense is an affirmative defense that must be raised in the first responsive pleading. In support of this argument,
Petitioner cites Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). There, the Sixth Circuit Court of Appeals found "[t]o 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." Id. The Third Circuit, however, expressly rejected the Sixth Circuit's finding in United States v. Bendolph, 409 F.3d 155, 163 (3d Cir. 2005). In Bendolph, the Third Circuit determined that a court may "raise sua sponte the AEDPA statute of limitations defense even after an answer has been filed." Id. (citing Long v. Wilson, 393 F.3d 390, 404 (3d Cir. 2004)). Given the express direction of the Third Circuit on this matter, Petitioner's argument lacks merit.
Next, Petitioner argues that the statute of limitations should be tolled. A limitations period may be subject to equitable tolling when the petitioner shows that he "has been pursuing his rights diligently," and yet "some extraordinary circumstances stood in his way and prevented timely filing." Holland v. Florida, __ U.S. __, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010); see also Sistrunk v. Rozum, 674 F.3d 181 (3d Cir. 2012). The Third Circuit has identified four circumstances in which equitable tolling is justified: (1) when the defendant has actively misled the plaintiff; (2) when the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) when the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum; (4) when the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Petitioner argues that he lacked clear guidance regarding the statute of limitations set forth in 28 U.S.C. § 2244(d), because the language of Rule 3(c) of the Rule Governing Section 2254 Cases in the United States District Courts and § 2244(d) is ambiguous. Rule 3(c) provides "the time for filing a ...