Bilal v. North Carolina

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-6677

WALI FARAD MUHAMMAD BILAL,

Petitioner - Appellant,

versus

STATE OF NORTH CAROLINA,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Senior
District Judge. (1:06-cv-00082)

Argued: May 13, 2008 Decided: July 18, 2008

Before MICHAEL and DUNCAN, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Ryan Stafford Johnson, Third Year Law Student, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia; Neal Lawrence Walters, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant. Mary Carla Hollis, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Amy L. Woolard, Third Year Law Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Appellant. Roy Cooper, Attorney
General of North Carolina, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

After a series of failed attempts at obtaining relief in North

Carolina state court, convicted felon Wali Farad Muhammad Bilal

(“Bilal”) filed a pro se petition in federal court for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. He did so by

completing the standard form habeas petition (“form petition”)

adopted by the Judicial Conference for the United States and

provided to him by the district court. One question on the form

petition instructs would-be petitioners to provide reasons why the

statute of limitations does not bar their petition if their

judgment of conviction became final more than one year prior to the

instant filing. Bilal answered simply, “N/A.” Without further

notice to Bilal, the district court dismissed the petition sua

sponte for untimeliness.

On appeal, Bilal argues that he was not given sufficient

notice and an opportunity to be heard prior to the dismissal as

required by our precedent in Hill v. Braxton, 277 F.3d 701 (4th

Cir. 2002). On the specific facts before us, we agree. We

therefore vacate and remand for the district court to allow Bilal

to clarify or correct his response.1

1
We express no opinion on the merits of Bilal’s argument that
equitable tolling or a statutory exception excuses his month-long
delay in filing his petition.

3
 I.

Following a jury trial in North Carolina Superior Court, Bilal

was convicted on October 12, 2001 of two counts of robbery with a

dangerous weapon, two counts of second-degree kidnapping, one count

of simple assault, and one count of assault inflicting serious

bodily injury. He was later sentenced to 394 months’ imprisonment,

and is currently serving out that sentence in a North Carolina

prison.

Since his conviction, Bilal has filed a number of appeals and

petitions within the North Carolina state court system, all of

which have failed.2 Finally, on February 23, 2006, he filed this

habeas corpus petition pursuant to 28 U.S.C. § 2254 with the

District Court for the Western District of North Carolina,

challenging, inter alia, the sufficiency of the evidence to support

his convictions and alleging that both his trial and appellate

2
Because the timeliness of Bilal’s petition is at issue, we
briefly recount the wending path of Bilal’s post-conviction
challenges. First, Bilal appealed his convictions and sentence to
the North Carolina Court of Appeals, which affirmed both on
December 3, 2002. He then filed a petition for writ of certiorari
with the North Carolina Supreme Court, which was denied on August
21, 2003. Bilal next began state post-conviction proceedings by
filing a pro se Motion for Appropriate Relief (“MAR”) on September
30, 2004, which was denied on January 31, 2005. On March 14, 2005,
Bilal filed a petition for a writ of certiorari with the North
Carolina Court of Appeals, which was denied on March 28, 2005. On
April 26, 2005, he filed a second petition for a writ of certiorari
seeking discretionary review by the North Carolina Supreme Court.
This petition was denied on December 1, 2005.

4
counsel provided him with ineffective assistance. He initiated

this collateral attack by filling out the form petition.3

The form petition consists of questions designed to elicit the

salient facts underlying a petitioner’s challenge to his

confinement. Some of the questions are relatively straightforward,

calling for a simple “yes” or “no” answer or soliciting easily

ascertained facts such as dates and names. Others are more open-

ended. The question giving rise to this appeal, question 18, is of

the latter variety. Question 18 reads:

TIMELINESS OF PETITION: If your judgment of conviction
became final over one year ago, you must explain why the
one-year statute of limitations as contained in 28 U.S.C.
§ 2244(d) does not bar your petition.

J.A. 26. The questions ends with a footnote setting forth the text

of 28 U.S.C. § 2244(d)(1)-(2).4 Bilal wrote only “N/A” on the

3
The form petition currently in effect was adopted by the
Judicial Conference in 2003. See Report of the Proceedings of the
Judicial Conference of the United States 36 (Sept. 23, 2003),
available at http://www.uscourts.gov/judconf/sept03proc.pdf; see
also 5B West’s Federal Forms, District Courts, Criminal § 8959
(2007) (adopting the current version of the form petition).
4
Section 2244(d) provides:

(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;

(B) the date on which the impediment to filing an
application created by State action in violation of the

5
first of twenty-two lines provided to answer the question. His

petition was otherwise complete.

Upon receipt of the petition, the district court concluded on

the face of the filing that Bilal’s § 2254 claims were barred by

the one-year limitations period imposed by § 2244(d),5 dismissing

the petition sua sponte without first discussing with Bilal the

limitations period or any applicable tolling provisions. In a

Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;

(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or

(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.

(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.

28 U.S.C. § 2244(d).
5
The court determined that the limitations period began to run
when Bilal’s “conviction became final on November 19, 2003. [It]
then ran for 316 days until he filed his MAR on September 30,
2004.” J.A. 62. Next, the period was tolled while Bilal’s
post-conviction proceedings were pending, but began again on
December 1, 2005 when his petition for writ of certiorari was
denied by the North Carolina Supreme Court. The period finally
expired 49 days later, on January 19, 2006. Bilal’s habeas
petition was not filed until February 23, 2006.

6
footnote at the end of the order, the district court acknowledged

that, under this court’s holding in Hill v. Braxton, it was

required to warn Bilal, prior to sua sponte dismissal of the

petition, “‘that the case is subject to dismissal . . . absent a

sufficient explanation’” for its seeming untimeliness. J.A. 62 n.2

(quoting Hill, 277 F.3d at 706). The district court determined,

however, that Bilal’s case was distinguishable from Hill because

Bilal “had an opportunity in his form petition to address the

timeliness of his petition and declined to do so.” Id. Thus, the

court determined that “it need not provide [him] with any

additional opportunities to address such matters.” Id.

Bilal filed a pro se notice of appeal, arguing that the

district court “dismissed [his] federal habeas corpus [petition]

without affording [him] notice or an opportunity to be heard . . .

[and that] had he been permitted to [respond], he could have

demonstrated that either a statutory exception or equitable tolling

principles protected his § 2254 petition from dismissal.” J.A. 65.

This court subsequently granted a certificate of appealability and

appointed Bilal counsel to assist in the appeal.

II.

We review de novo the legal question of whether Bilal was

afforded adequate notice and an opportunity to be heard prior to

7
the sua sponte dismissal of his § 2254 habeas petition. See United

States v. Hopkins, 268 F.3d 222, 224 (4th Cir. 2001).

A.

We begin our analysis with a discussion of this court’s

decisions in Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002), and

McMillan v. Jarvis, 332 F.3d 244 (4th Cir. 2003), upon which both

parties extensively rely.

Hill presented the question of whether a federal habeas court

had the power to dismiss sua sponte a pro se petition on the ground

that it was not filed within the one-year limitations period

established by 28 U.S.C. § 2244(d). This court began with the

general principle that “the one-year limitation period contained in

§ 2244(d) is an affirmative defense that the state bears the burden

of asserting.” Hill, 277 F.3d at 705. Nonetheless, this court

held that because § 2254 habeas actions, more so than ordinary

civil actions, “implicate considerations of comity, federalism, and

judicial efficiency,” a district court has the authority to raise

certain affirmative defenses sua sponte in this context. Id. Such

“discretion to raise an affirmative defense to a § 2254 petition

sua sponte and then dismiss the petition based on that affirmative

defense is not completely unfettered,” this court cautioned, and

should not be “automatic.” Id. at 706 (internal quotations

omitted); cf. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th

Cir. 2006) (“[W]e have recognized that a statute of limitations

8
defense may properly be raised sua sponte by a district court in

certain narrow circumstances.” (emphasis added)). Instead, in each

instance, a court should balance the federal interests listed above

against “the petitioner’s substantial interest in justice.” Id.

(internal quotations omitted).

When balancing those interests in Hill, this court reasoned:

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. . . . Any facts relating to [statutory
or equitable tolling] are [therefore] unlikely to be part
of the record . . . . 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
cannot be certain that there are no circumstances that
would cause the petition to be timely.

Id. at 706-07. This court noted that this problem was compounded

because a pro se petitioner like Hill was unlikely to anticipate

the affirmative defense of untimeliness, especially because the

form petition in use at the time did not direct petitioners to

address the issue. See id. at 707 (“[N]otice and an opportunity to

respond are particularly appropriate when the prisoner is pro se .

. . and the long-standing practice is to construe pro se pleadings

liberally.”). This court therefore held that,

when 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 subject to dismissal pursuant to § 2244(d)
absent a sufficient explanation, unless it is
indisputably clear from the materials presented to the
district court that the petition is untimely and cannot

9
 be salvaged by equitable tolling principles or any of the
circumstances enumerated in § 2244(d)(1).

Id. (emphasis added); see also Day v. McDonough, 547 U.S. 198, 210

(2006) (“Of course, before acting on its own initiative, a court

must accord the parties fair notice and an opportunity to present

their positions.”).

The following year, this court issued its decision in McMillan

v. Jarvis, 332 F.3d 244 (4th Cir. 2003), which recognized that the

right to notice and an opportunity to be heard extends to counseled

habeas petitioners. In McMillan, this court found no reasonable

basis for distinguishing between pro se and counseled petitioners,

because “[i]n either case, facts supporting a statutory exception

to the one-year limitation period . . . 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.” Id. at 249 (emphasis added).

This court explained that counsel in a habeas case is entitled

to the “legitimate strategic option of not pleading facts in

anticipation of a statute of limitations defense and [instead]

forcing the respondent to bear its own burden of identifying and

raising potentially applicable affirmative defenses.” Id. at 248.

Because counsel could rightfully choose to omit such facts, the

primary concern in Hill remained: a district court that dismisses

a petition as untimely “based solely on the petition” and “‘without

10
notice to or input from the petitioner . . . cannot be certain that

there are no circumstances that would cause the petition to be

timely.’” Id. at 249-50 (quoting Hill, 277 F.3d at 707).

After Hill and McMillan, and similar decisions by courts in

other circuits, see, e.g., Acosta v. Artuz, 221 F.3d 117 (2d Cir.

2000), the United States Judicial Conference adopted the form

petition at issue in this case, which took effect on December 1,

2004. Among other changes, the amended form petition added

question 18 which, as noted above, instructs petitioners to explain

why the § 2244(d) limitations period does not bar their petition if

their judgment of conviction became final over one year prior to

the petition’s filing, setting forth the text of § 2244(d) in a

footnote. It is the interplay between Hill and McMillan on the one

hand and the revised form petition on the other, in the context of

the facts before us, that forms the crux of this appeal.

B.

As a habeas petitioner filing in the Western District of North

Carolina, Bilal was required to “substantially follow” the revised

form petition.6 He claims that question 18 did not provide him

with the notice and opportunity to respond required by Hill. He

6
According to the Rules Governing § 2254 cases, a habeas
“petition must substantially follow either [the form petition] or a
form prescribed by a local district-court rule.” Rules Governing
Habeas Cases, Rule 2(d), 28 U.S.C. foll. § 2254. The Western
District of North Carolina requires that pro se petitioners comply
with the form petition. See Western District of North Carolina Pro
Se Litigant Guide 15 (2006).

11
contends that a contrary finding would oblige petitioners to plead

facts in anticipation of the affirmative defense of untimeliness,

an outcome specifically prohibited by this court in both Hill and

McMillan.7

The government counters, however, that “[t]he notice contained

in the new form § 2254 petition addresses the concerns” of this

court in Hill and McMillan--a petitioner no longer need

“anticipate” the statute of limitations defense because the form

puts a petitioner on notice that he must address the timeliness of

his petition if it is in question. Appellee=s Br. at 5. The

government argues that question 18 adequately informs a petitioner

that his petition is subject to dismissal for untimeliness and that

its inclusion of the text of 28 U.S.C. § 2244(d)--the statute that

sets forth the one year limitations period applicable to § 2254

habeas petitions--makes the statutory bar immediately apparent.

We agree with the government that Hill’s notice requirement is

not particularly onerous. See Hill, 277 F.3d at 708 (“A

particularly detailed notice is not necessary nor is a hearing

necessarily required.”). And, in the ordinary scheme of things,

7
Bilal also notes that while the form petition directs
petitioners to the statutory tolling provisions in § 2244(d) and
even includes the text of the statute, it makes no explicit
reference to the availability of equitable tolling, which may
revive an untimely petition “where--due to circumstances external
to the party’s own conduct--it would be unconscionable to enforce
the limitation against the party.” Hill, 277 F.3d at 704 (internal
quotations omitted).

12
the revised form petition probably serves the twin goals of

achieving increased efficiency for courts and providing notice of

the need to address the statute of limitations issue to

petitioners. On these facts, however, the district court

prematurely pretermitted an inquiry into the facts the form was

designed to elicit on the basis of a response that can only fairly

be described as ambiguous. Used in this way, the form seems in

some tension with Hill in that Bilal was not provided with any

guidance on the timeliness of his particular petition beyond the

mere recitation of the statutory text of § 2244(d). The court’s

failure to clarify Bilal’s confused response is especially

problematic given the notorious complexity of § 2244(d). See id.

at 708 (citing Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.

1975) (“[B]efore entering summary judgment . . ., the District

Court, as a bare minimum, should have provided [the pro se party]

with fair notice of the requirements of the summary judgment rule.

We stress the need for a form of notice sufficiently understandable

to one in appellant’s circumstances fairly to apprise him of what

is required.” (internal quotations omitted) (emphasis added)).

Applying the statute to Bilal’s petition illustrates the point.

The one-year limitations period of § 2244(d) begins to run

from the latest of (a) “the date on which the [petitioner’s]

judgment became final,” § 2244(d)(1)(A); (b) “the date on which the

impediment to filing an application created by State action in

13
violation of the Constitution or laws of the United States is

removed, § 2244(d)(1)(B); (c) “the date on which the constitutional

right asserted was initially recognized by the Supreme Court,”

§ 2244(d)(1)(C); or (d) “the date on which the factual predicate of

the claim or claims presented could have been discovered through

the exercise of due diligence,” § 2244(d)(1)(D). The district

court here assumed that § 2244(d)(1)(B), § 2244(d)(1)(C), and

§ 2244(d)(1)(D) were inapplicable to Bilal’s petition; that is,

that there was no “State action” that impeded Bilal’s filing, that

Bilal asserted only “constitutional rights” that had long been

recognized by the Supreme Court, and that the “factual predicate”

underlying Bilal’s claims was immediately discoverable. Assuming

arguendo that the district court rightfully discounted these

alternatives,8 the limitations period for Bilal’s petition began to

run on “the date on which [his] judgment became final.”

§ 2244(d)(1)(A).

Even this prescription presents a moving target, however,

because a judgment is not “final” until the later of the date on

which direct review of the petitioner’s case concluded or “the

expiration of the time for seeking such review.” Id. The last

stage of direct review is the filing of a petition for writ of

certiorari with the United States Supreme Court. See Harris v.

8
Bilal refutes the district court’s conclusion with respect to
§ 2244(d)(1)(B), claiming that the district court failed to provide
him with the form petition in a timely manner.

14
Hutchinson, 209 F.3d 325, 328 n.1 (4th Cir. 2000). Because Bilal

did not file a petition for writ of certiorari with the Court, his

judgment of conviction became final when “the time for seeking such

review” expired. See § 2244(d)(1)(A). According to Supreme Court

rules, the review period expires ninety days from the denial of a

petition for writ of certiorari with the highest court in the state

of conviction. See Sup. Ct. R. 13(1). Thus, Bilal’s limitation

period began to run on November 19, 2003, ninety days after the

North Carolina Supreme Court denied his first certiorari petition

on August 21, 2003.

Instead of the limitations period expiring one year later on

November 19, 2004, however, the tolling provision of § 2244(d)(2),9

which pauses the limitation period while review of a properly filed

petition is pending, stretched the period until January 19, 2006.

This date--the apparent expiration date of Bilal’s “one year”

limitation period--is more than four years after Bilal’s date of

conviction, but only 35 days prior to his filing the petition at

issue here.

It is in the context of this complexity that Bilal’s ambiguous

response must be viewed. Question 18 begins by stating a

condition: “If your judgment of conviction became final over one

9
“The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.” 28 U.S.C.
§ 2244(d)(2).

15
year ago.” J.A. 26 (emphasis added). It then requires those who

satisfy the condition to state why § 2244(d) does not bar their

petition. Bilal responded “N/A,” J.A. 26, or “not applicable,”

presumably because he thought that he did not satisfy the

condition. Put differently, Bilal may have thought that his

“judgment of conviction” did not “bec[o]me final over one year

ago,” excusing any further explanation of statutory exceptions or

equitable tolling principles that would cause his petition not to

be barred by § 2244(d).

The government interprets Bilal’s response differently,

contending that Bilal simply refused to answer question 18. It

would seem, though, that if Bilal were declining to answer the

question he would simply have left it blank. We think it far more

likely that Bilal’s cryptic answer spawned from his misapprehension

of the term “final,” as his counsel suggests, or from a

misunderstanding of question 18 entirely. Regardless of the reason

behind it, Bilal’s answer was arguably responsive, if confused, not

an outright refusal to answer as the government asserts.

Rather than asking Bilal to expand or clarify his answer, or

inquiring about any statutory exceptions or applicable equitable

tolling principles, the district court promptly dismissed his

petition. It concluded that Bilal “had an opportunity in his form

petition to address the timeliness of his petition and declined to

do so.” J.A. 62 (emphasis added).

16
 Though we do not fault the district court for relying on the

form petition in general, we find its response on these facts to be

out of step with our treatment of pro se petitioners in this and

other contexts. See Hill, 277 F.3d at 707 (“[N]otice and an

opportunity to respond are particularly appropriate when the

prisoner is pro se . . . and the long-standing practice is to

construe pro se pleadings liberally.”); cf. id. at 708 (“We also

disagree that Rule 59(e) affords a pro se petitioner . . . an

adequate opportunity to respond.”); Wright v. Collins, 766 F.2d

841, 846 (4th Cir. 1985) (“[W]e hold that a pro se litigant must

receive fair notification of the consequences of [his] failure to

object . . . before such a procedural default will result in waiver

of the right of appeal. The notice must be sufficiently

understandable to one in appellant’s circumstances fairly to

apprise him of what is required.” (internal quotations omitted)

(emphasis added)); Carter v. Hutto, 781 F.2d 1028, 1033 (4th Cir.

1986) (“[W]here . . . the pretrial order did not adequately inform

[the pro se litigant] of the degree of specificity necessary . . .,

and whereas [he] had obviously sought to comply, it was incumbent

on the magistrate to inform [him] of the deficiency of his response

and afford him the opportunity to cure it.”). Indeed, the very

instructions accompanying the form petition here inform petitioners

that if they fail to fill out the form petition properly the

district court will notify them of the error and afford them an

17
opportunity to “submit additional or correct information,” not

immediately dismiss the petition without further correspondence.

5B West’s Federal Forms, District Courts, Criminal § 8959 (2007)

(“If you do not fill out the form properly, you will be asked to

submit additional or correct information.”).

We thus find the district court’s sua sponte dismissal of

Bilal’s petition to be premature. In doing so, we are not

unsympathetic to the burdens that habeas petitions lade upon our

district courts and consequently limit our holding to the narrow

circumstances of this case. Here, the district court was faced

with Bilal’s apparent confusion regarding the timeliness of his

petition and an absence of evidence that he intentionally evaded

the issue. Furthermore, the state had not yet had the opportunity

to assert the expiration of the limitations period, an affirmative

defense that it ordinarily bears the burden of raising. In this

context, we read Hill and McMillan as requiring the district court

to afford Bilal, a pro se petitioner, an opportunity to put forth a

statutory exception or equitable tolling principle that might

explain the relatively brief period by which his petition was late.

See Day, 547 U.S. at 210 (requiring that parties be afforded “fair

notice and an opportunity to present their positions” prior to sua

sponte dismissal (emphasis added)). Otherwise the district court’s

order would once again raise the concerns present in Hill and

McMillan: a district court dismissing a habeas petition without

18
first “be[ing] certain that there [we]re no circumstances that

would cause the petition to be timely.” Hill, 277 F.3d at 707.

III.

For the foregoing reasons the judgment of the district court

is

VACATED AND REMANDED.

19