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Habeas – Procedural Bar: Waiver by State

Patrick Wood v. Milyard, USSC No. 10-9995, 4/24/12, reversing 403 Fed. Appx. 335 (10th Cir 2010)

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. Greer481 U. S. 129134 (1987) (exhaustion defense); Day v. McDonough547 U. S. 198202 (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.

Wood was convicted in state court in 1987 but didn’t file this 2254 habeas petition until 2008. For various reasons that needn’t be recited, the petition was at least arguably timely. Arguably enough so that the State, while stopping short of conceding timeliness, expressly noted that it “will not challenge” timeliness, thus inviting review of the merits. As seen from the blockquote, the District Court indeed reached the merits, but the Court of Appeals erroneously imposed a limitations bar short of review on the merits. Granberry recognized what the Court now terms “a modest exception to the” rule against considering forfeited affirmative defenses such as timeliness. Thus, taking into account the “comity interest” underlying habeas review, where the State has “inadvertently” overlooked a defense in the District Court, the Court of Appeals may in exceptional cases entertain the defense nonetheless. This means in the first instance, though, that a habeas court is authorized to raise a forfeited defense sua sponte:

Consistent with Granberry and Day, we decline to adopt an absolute rule barring a court of appeals from raising, 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.

The Court hastens to add that “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.” Here, the lower court abused its discretion because the State didn’t merely forfeit the defense, but waived it:

[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’ ” Kontrick v. Ryan540 U. S. 443, n. 13 (2004) (quoting United States v. Olano507 U. S. 725733(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 error,” 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.

The distinction between “waiver” and “forfeiture” of an issue “is key” to understanding the result here: “We note here the distinction between defenses that are ‘waived’ and those that are ‘forfeited. A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve.” Footnote 4. Wisconsin employs the same taxonomy for review of unpreserved issues. E.g., State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”)

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