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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.
