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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–9995
_________________
PATRICK WOOD, PETITIONER
v. KEVIN
MILYARD, WARDEN, et al.
on writ of certiorari to the united states
court of appeals for the tenth circuit
[April 24, 2012]
Justice Ginsburg delivered the opinion of the
Court.
This case concerns the authority of a federal
court to raise, on its own motion, a statute of limitations defense
to a habeas corpus petition. After state prisoner Patrick Wood
filed a federal habeas corpus petition, the State twice informed
the U. S. District Court that it “[would] not challenge, but
[is] not conceding, the timeliness of Wood’s habeas petition.” App.
70a; see
id., at 87a. Thereafter, the District Court
rejected Wood’s claims on the merits. On appeal, the Tenth Circuit
directed the parties to brief the question whether Wood’s federal
petition was timely. Post-briefing, the Court of Appeals affirmed
the denial of Wood’s petition, but solely on the ground that it was
untimely.
Our precedent establishes that a court may
consider a statute of limitations or other threshold bar the State
failed to raise in answering a habeas petition.
Granberry v.
Greer,
481
U.S. 129, 134 (1987) (exhaustion defense);
Day v.
McDonough,
547
U.S. 198, 202 (2006) (statute of limitations defense). Does
court discretion to take up timeliness hold when a State is aware
of a limitations defense, and intelligently chooses not to rely on
it in the court of first instance? The answer
Day instructs
is “no”: A court is not at liberty, we have cautioned, to bypass,
override, or excuse a State’s deliberate waiver of a limitations
defense.
Id., at 202, 210, n. 11. The Tenth Circuit, we
accordingly hold, abused its discretion by resurrecting the
limitations issue instead of reviewing the District Court’s
disposition on the merits of Wood’s claims.
I
In the course of a 1986 robbery at a pizza
shop in a Colorado town, the shop’s assistant manager was shot and
killed. Petitioner Patrick Wood was identified as the per-petrator.
At a bench trial in January 1987, Wood was convicted of murder,
robbery, and menacing, and sentenced to life imprisonment. The
Colorado Court of Appeals affirmed Wood’s convictions and sentence
on direct appeal in May 1989, and the Colorado Supreme Court denied
Wood’s petition for certiorari five months later. Wood did not ask
this Court to review his conviction in the 90 days he had to do
so.
Wood then pursued postconviction relief,
asserting con-stitutional infirmities in his trial, conviction, and
sentence. Prior to the federal petition at issue here, which was
filed in 2008, Wood, proceeding
pro se, twice sought relief
in state court. First, in 1995, he filed a motion to vacate his
conviction and sentence pursuant to Colorado Rule of Criminal
Procedure 35(c) (1984).[
1] He
also asked the Colorado trial court to appoint counsel to aid him
in pursuit of the motion. When some months passed with no
responsive action, Wood filed a request for a ruling on his motion
and accompanying request for counsel. The state court then granted
Wood’s plea for the appointment of counsel, but the record is
completely blank on any further action regarding the 1995 motion.
Second, Wood filed a new
pro se motion for postconviction
relief in Colorado court in 2004. On the first page of his second
motion, he indicated that “[n]o other postconviction proceedings
[had been] filed.” Record in No. 08–cv–00247 (D Colo.), Doc. 15–5
(Exh. E), p. 1. The state court denied Wood’s motion four days
after receiving it.
Wood filed a federal habeas petition in 2008,
which the District Court initially dismissed as untimely. App.
41a–46a. On reconsideration, the District Court vacated the
dismissal and instructed the State to file a preanswer response
“limited to addressing the affirmative defenses of timeliness
. . . and/or exhaustion of state court remedies.”
Id., at 64a–65a. On timeliness, the State represented in its
preanswer response: “Respondents will not challenge, but are not
conceding, the timeliness of Wood’s [federal] habeas petition.”
Id., at 70a. Consistently, in its full an-swer to Wood’s
federal petition, the State repeated: “Respondents are not
challenging, but do not concede, the timeliness of the petition.”
Id., at 87a.
Disposing of Wood’s petition, the District Court
dismissed certain claims for failure to exhaust state remedies, and
denied on the merits Wood’s two remaining claims—one alleging a
double jeopardy violation and one challenging the validity of
Wood’s waiver of his Sixth Amendment right to a jury trial.
Id., at 96a–111a. On appeal, the Tenth Circuit ordered the
parties to brief, along with the merits of Wood’s double jeopardy
and Sixth Amendment claims, “the timeliness of Wood’s application
for [federal habeas relief].”
Id., at 129a. After briefing,
the Court of Appeals affirmed the denial of Wood’s petition without
addressing the merits; instead, the Tenth Circuit held the petition
time barred. 403 Fed. Appx. 335 (2010). In so ruling, the Court of
Appeals concluded it had authority to raise timeliness on its own
motion.
Id., at 337, n. 2. It further ruled that the
State had not taken that issue off the table by declining to
interpose a statute of limitations defense in the District Court.
Ibid.
We granted review, 564 U. S. ___ (2011), to
resolve two issues: first, whether a court of appeals has the
author- ity to address the timeliness of a habeas petition on the
court’s own initiative;[
2]
second, assuming a court of appeals has such authority, whether the
State’s representations to the District Court in this case
nonetheless precluded the Tenth Circuit from considering the
timeliness of Wood’s petition.
II
A
Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110Stat. 1214, a state prisoner has
one year to file a federal petition for habeas corpus relief,
starting from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U. S. C. §2244(d)(1)(A). For a
prisoner whose judgment became final before AEDPA was enacted, the
one-year limitations period runs from the AEDPA’s effective date:
April 24, 1996. See
Serrano v.
Williams,
383 F.3d 1181, 1183 (CA10 2004). “The one-year clock is
stopped, however, during the time the petitioner’s ‘properly filed’
application for state postconviction relief ‘is pending.’ ”
Day, 547 U. S., at 201 (quoting 28 U. S. C.
§2244(d)(2)).[
3]
The state judgment against Wood became final on
direct review in early 1990. See
supra, at 2. Wood’s time
for filing a federal petition therefore began to run on the date of
AEDPA’s enactment, April 24, 1996, and expired on April 24, 1997,
unless Wood had a “properly filed” application for state
postconviction relief “pending” in Colorado state court during that
period. Wood maintains he had such an application pending on April
24, 1996: the Rule 35(c) motion he filed in 1995. That motion, Wood
asserts, remained pending (thus continuing to suspend the one-year
clock) until at least August 2004, when he filed his second motion
for postconviction relief in state court. The 2004 motion, the
State does not contest, was “properly filed.” Wood argues that this
second motion further tolled the limitations period until February
5, 2007, exactly one year before he filed the federal petition at
issue here. If Wood is correct that his 1995 motion remained
“pending” in state court from April 1996 until August 2004, his
federal petition would be timely.
In its preanswer response to Wood’s petition,
the State set forth its comprehension of the statute of limitations
issue. It noted that Wood’s “time for filing a habeas petition
began to run on April 24, 1996, when the AEDPA became effective”
and that Wood “had until April 24, 1997, plus any tolling periods,
to timely file his habeas petition.” App. 69a–70a. The State next
identified the crucial question: Did Wood’s 1995 state petition
arrest the one-year statute of limitations period from 1996 until
2004?
Id., at 70a. “[I]t is certainly arguable,” the State
then asserted, “that the 1995 postconviction motion was abandoned
before 1997 and thus did not toll the AEDPA statute of limitations
at all.”
Ibid. But rather than inviting a decision on the
statute of limitations question, the State informed the District
Court it would “not challenge” Wood’s petition on timeliness
grounds; instead, the State simply defended against Wood’s double
jeopardy and Sixth Amendment claims on the merits.
B
“Ordinarily in civil litigation, a statutory
time limitation is forfeited if not raised in a defendant’s answer
or in an amendment thereto.”
Day, 547 U. S., at 202
(citing Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a)). See also
Habeas Corpus Rule 5(b) (requiring the State to plead a statute of
limitations defense in its answer).[
4] An affirmative defense, once forfeited, is “exclu[ded]
from the case,” 5 C. Wright & A. Miller, Federal Practice and
Procedure §1278, pp. 644–645 (3d ed. 2004), and, as a rule, cannot
be asserted on appeal. See
Day, 547 U. S., at 217
(Scalia, J., dissenting);
Weinberger v.
Salfi,
422 U.S.
749, 764 (1975);
McCoy v.
Massachusetts Inst. of
Technology, 950 F.2d 13, 22 (CA1 1991) (“It is hornbook law
that theories not raised squarely in the district court cannot be
surfaced for the first time on appeal.”).
In
Granberry v.
Greer, we
recognized a modest exception to the rule that a federal court will
not consider a forfeited affirmative defense. 481 U. S., at
134. The District Court in
Granberry denied a federal habeas
petition on the merits.
Id., at 130. On appeal, the State
argued for the first time that the petition should be dismissed
because the petitioner had failed to exhaust relief available in
state court.
Ibid. See Habeas Corpus Rule 5(b) (list- ing
“failure to exhaust state remedies” as a threshold bar to federal
habeas relief). Despite the State’s failure to raise the
nonexhaustion argument in the District Court, the Seventh Circuit
accepted the argument and ruled for the State on that ground. We
granted certiorari to decide whether a court of appeals has
discretion to address a non-exhaustion defense that the State
failed to raise in the district court.
Id., at 130.
Although “express[ing] our reluctance to adopt
rules that allow a party to withhold raising a defense until after
the ‘main event’ . . . is over,”
id., at 132, we
nonetheless concluded that the bar to court of appeals’
consideration of a forfeited habeas defense is not absolute.
Id., at 133. The exhaustion doctrine, we noted, is founded
on concerns broader than those of the parties; in particular, the
doctrine fosters respectful, harmonious relations between the state
and federal judiciaries.
Id., at 133–135. With that comity
interest in mind, we held that federal appellate courts have
discretion, in “exceptional cases,” to consider a nonexhaustion
argument “inadverten[tly]” overlooked by the State in the District
Court.
Id., at 132, 134.[
5]
In
Day, we affirmed a federal district
court’s authority to consider a forfeited habeas defense when
extraordinary circumstances so warrant. 547 U. S., at 201.
There, the State miscalculated a time span, specifically, the
number of days running between the finality of Day’s state-court
conviction and the filing of his federal habeas petition.
Id., at 203. As a result, the State erroneously informed the
District Court that Day’s petition was timely.
Ibid. A
Magistrate Judge caught the State’s computation error and
recommended that the petition be dismissed as untimely,
notwithstanding the State’s timeliness concession.
Id., at
204. The District Court adopted the recommendation, and the Court
of Appeals upheld the trial court’s
sua sponte
dismissal of the petition as untimely.
Ibid.
Concluding that it would make “scant sense” to
treat AEDPA’s statute of limitations differently from other
threshold constraints on federal habeas petitioners, we held “that
district courts are permitted, but not obliged, to consider,
sua sponte, the timeliness of a state prisoner’s habeas
petition.”
Id., at 209;
ibid. (noting that Habeas
Corpus Rule 5(b) places “ ‘a statute of limitations’ defense
on a par with ‘failure to exhaust state remedies, a procedural bar,
[and] non-retroactivity.’ ”). Affording federal courts leeway
to consider a forfeited timeliness defense was appropriate, we
again reasoned, because AEDPA’s statute of limitations, like the
exhaustion doctrine, “implicat[es] values beyond the concerns of
the parties.”
Day, 547 U. S., at 205 (quoting
Acosta v.
Artuz,
221 F.3d 117, 123 (CA2 2000)); 547 U. S., at 205–206 (“The
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 final-ity to state
court judgments within a reasonable time.” (internal quotation
marks omitted)).
We clarified, however, that a federal court does
not have
carte blanche to depart from the principle of party
presentation basic to our adversary system. See
Greenlaw v.
United States,
554 U.S.
237, 243–244 (2008). Only where the State does not
“strategically withh[o]ld the [limitations] defense or cho[o]se to
relinquish it,” and where the petitioner is accorded a fair
opportunity to present his position, may a district court consider
the defense on its own initiative and “ ‘determine whether the
interests of justice would be better served’ by addressing the
merits or by dismissing the petition as time barred.”
Day,
547 U. S., at 210–211 (quoting
Granberry, 481
U. S., at 136; internal quotation marks omitted). It would be
“an abuse of discretion,” we observed, for a court “to override a
State’s deliberate waiver of a limitations defense.” 547
U. S., at 202. In Day’s case itself, we emphasized, the
State’s concession of timeliness resulted from “inadvertent error,”
id., at 211, not from any deliberate decision to proceed
straightaway to the merits.
Consistent with
Granberry and
Day,
we decline to adopt an absolute rule barring a court of appeals
from rais- ing, on its own motion, a forfeited timeliness defense.
The institutional interests served by AEDPA’s statute of
limitations are also present when a habeas case moves to the court
of appeals, a point
Granberry recognized with respect to a
nonexhaustion defense. We accordingly hold, in response to the
first question presented, see
supra, at 4, that courts of
appeals, like district courts, have the authority—though not the
obligation—to raise a forfeited timeliness defense on their own
initiative.
C
We turn now to the second, case-specific,
inquiry. See
ibid. Although a court of appeals has
discretion to address,
sua sponte, the timeliness of a
habeas petition, appellate courts should reserve that authority for
use in exceptional cases. For good reason, appellate courts
ordinarily abstain from entertaining issues that have not been
raised and preserved in the court of first instance. See
supra, at 6. That restraint is all the more appropriate when
the appellate court itself spots an issue the parties did not air
below, and therefore would not have antici-pated in developing
their arguments on appeal.
Due regard for the trial court’s processes and
time investment is also a consideration appellate courts should not
overlook. It typically takes a district court more time to decide a
habeas case on the merits, than it does to resolve a petition on
threshold procedural grounds. See Dept. of Justice, Bureau of
Justice Statistics, R. Hanson & H. Daley, Federal Habeas Corpus
Review: Challenging State Court Criminal Convictions 23
(NCJ–155504, 1995) (district courts spent an average of 477 days to
decide a habeas petition on the merits, and 268 days to resolve a
petition on procedural grounds). When a court of appeals raises a
procedural impediment to disposition on the mer-its, and disposes
of the case on that ground, the district court’s labor is
discounted and the appellate court acts not as a court of review
but as one of first view.
In light of the foregoing discussion of the
relevant considerations, we hold that the Tenth Circuit abused its
discretion when it dismissed Wood’s petition as untimely. In the
District Court, the State was well aware of the statute of
limitations defense available to it and of the arguments that could
be made in support of the defense. See
supra, at 5–6. Yet
the State twice informed the District Court that it “will not
challenge, but [is] not conceding” the timeliness of Wood’s
petition. See
supra, at 3. Essentially, the District Court
asked the State: Will you oppose the petition on statute of
limitations grounds? The State answered: Such a challenge would be
supportable, but we won’t make the challenge here.
“[W]aiver is the ‘intentional relinquishment or
abandonment of a known right.’ ”
Kontrick v.
Ryan,
540 U.S.
443, 458, n. 13 (2004) (quoting
United States v.
Olano,
507 U.S.
725, 733 (1993)). The State’s conduct in this case fits that
description. Its decision not to contest the timeliness of Wood’s
petition did not stem from an “inadvertent er-ror,” as did the
State’s concession in
Day. See 547 U. S., at 211.
Rather, the State, after expressing its clear and accurate
understanding of the timeliness issue, see
supra, at 5–6,
deliberately steered the District Court away from the question and
towards the merits of Wood’s petition. In short, the State knew it
had an “arguable” statute of limitations defense, see
supra,
at 5, yet it chose, in no uncertain terms, to refrain from
interposing a timeliness “challenge” to Wood’s petition. The
District Court therefore reached and decided the merits of the
petition. The Tenth Circuit should have done so as well.
* * *
For the reasons stated, the judgment of the
Court of Appeals for the Tenth Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
