Decision below: Wood v. Milyard, 10th Cir, 11/26/10
Questions Presented (by the Court):
1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense?
2) Does the State’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amount to a deliberate waiver of any statute of limitations defense the State may have had?
SCOTUSblog page (not yet posted)
The limitations defense was raised sua sponte by the lower court. Not clear whether that would fly in the 7th, Grigsby v. Cotton, 456 F.3d 727, 732 (7th Cir.2006) (“We will not enforce the alleged untimeliness of Grigsby’s petition. The state’s argument on appeal chastises Grigsby for not arguing — presumably in his opening brief — that we should look past the alleged untimeliness of his petition and his procedural default. But it was the state’s duty to raise those defenses in the district court, and it has provided us no reason to excuse its failure to do so.”). But see, Bates v. Carter, N.D. Ind., 3/22/11 (“Grigsby stands not for the proposition that a district court may not sua sponte raise the statute of limitations, but rather for the proposition that the State may not raise the statute of limitations for the first time on appeal.”) In any event, we will see soon enough whether lower courts may sua sponte bounce a petition on procedural grounds, or must instead wait to bounce it on the merits.