Issues
In a habeas proceeding, does the government’s assertion that it “will not challenge, but [is] not conceding” the timeliness of a prisoner’s habeas petition waive the state’s timeliness defense, and, if so, does an appellate court have the authority to raise that timeliness issue on its own?
Petitioner Patrick Wood filed a petition for writ of habeas corpus on February 25, 2008, in order to challenge his murder conviction. On appeal, the appellate court raised, sua sponte, a 28 U.S.C. § 2244(d) statute of limitations defense that barred Wood’s claims. Wood argues that appellate courts lack authority to raise a statute of limitations defense sua sponte, because an affirmative defense is forfeited if not raised, and because the government waived its statute of limitations defense at the district court level. In opposition, Kevin Milyard argues that appellate courts do have authority to raise a statute of limitations defense sua sponte, assuming the state did not intelligently waive the defense in the district court. In determining appellate court capacity to independently raise statute of limitations defenses, this decision will impact the finality of lower court decisions.
Questions as Framed for the Court by the Parties
Does an appellate court have the authority to raise sua sponte a 28 U.S.C. § 2254(d) statute of limitations defense?
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?
Facts
On January 27, 1986, Petitioner Patrick Wood attempted to rob a pizza shop with a revolver, killing an employee in the attempt. See Wood v. Milyard, 403 Fed.Appx. 335, 336 (10th Cir. 2010). Before Wood could escape, two other pizza-shop employees disarmed and subdued him. See id. Prosecutors charged Wood in Colorado State District Court with first-degree murder after deliberation, felony murder, two counts of menacing, and aggravated robbery. See id.A jury convicted Wood on both counts of menacing, and on the count of aggravated robbery; however, the jury was unable to reach a verdict on either of the murder charges. See id.The court declared a mistrial, and Wood waived his jury right as part of an agreement to avoid the death penalty. See id. After the subsequent bench trial, the court acquitted Wood of first-degree murder after deliberation, but convicted Wood of felony murder, among other charges, and sentenced him to life in prison. See id.
After his conviction, Wood directly appealed to the Colorado Court of Appeals, which affirmed the conviction. See Wood, 403 Fed. Appx. at 336. Wood then raised several challenges to the constitutional validity of his conviction for felony murder. See id. In 1994, Wood filed a pro se habeas petition in federal district court. See id. The district court dismissed this action, because Wood had not yet exhausted his state court remedies. See id.
In 1995, a few months after this dismissal, Wood filed a pro se motion to vacate his conviction and sentence in Colorado state court, on constitutional and evidentiary grounds. See Wood, 403 Fed. Appx. at 336. After four months with no action on this motion, Wood filed a new motion for a ruling. See id. The court assigned Wood to the Colorado Public Defender’s Office, and did not take further action on the motion. See id. Wood did not continue to seek a ruling, and did not contact the court again until 2004. See id.338
Nine years later, in 2004, Wood filed a pro se petition for post-conviction relief in state court. See Wood, 403 Fed. Appx. at 336; Brief for Petitioner, Patrick Wood at 7. The court denied Wood’s petition, the Court of Appeals affirmed, and the Colorado Supreme Court denied certiorari. See Wood, 403 Fed. Appx.at336–37.
In 2008, one year after the Colorado Supreme Court denied certiorari on his claims, Wood filed a habeas petition in federal court, pursuant to 28 U.S.C. § 2254. See Wood, 403 Fed. Appx. at 337. After initially dismissing Wood’s claims as untimely, the district court granted reconsideration of the issues, and ordered the state to notify the court if it intended to raise a timeliness defense. Seeid. In response, the state asserted that the “Respondents will not challenge, but are not conceding, the timeliness of Wood’s habeas petition.” See id.at 337.
Wood subsequently dismissed his unexhausted claims, and the United States District Court for the District of Colorado dismissed Wood’s remaining claims on the merits. See Wood, 403 Fed.Appx. at 337. Wood appealed, and the United States Court of Appeals for the Tenth Circuit granted a certificate of appealability on Wood’s dismissed claims, as well as on the issues of timeliness and exhaustion. See id.
The Tenth Circuit then dismissed Wood’s appeal, on the grounds that the petition was untimely, ruling that Wood’s 1995 post-conviction motion did not toll the statutory one-year limitations period, because Wood had abandoned his claim in the eight years between that motion’s filing and Wood’s 2004 habeas petition. See Wood, 403 Fed. Appx. at 338–39. The court further held that the state’s declaration regarding the timeliness of Wood’s petition did not constitute a waiver of the state’s timeliness defense. See id.at footnote 2.
After the Tenth Circuit denied Wood’s petition for rehearing, Wood filed for certiorari, which the Supreme Court granted on April 7, 2011. See Question Presented.
Analysis
Under 28 U.S.C. § 2244(d) - the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) - a defendant has one year from conviction to file a federal habeas petition. SeeWood v. Milyard, 403 Fed. Appx. 335, 337–38 (10th Cir. 2010). Defendants like Petitioner Wood, who were convicted prior to the enactment of 28 U.S.C. 2244(d), were given one year from the enactment of 28 U.S.C. § 2244(d) (until April 24, 1997) to file a federal habeas petition. See id.This one-year period is tolled, however, when a defendant has a properly filed and pending application for state court post-conviction review. See id.at 338.At issue is whether an appellate court can properly raise sua sponte a 28 U.S.C. § 2244(d) limitations defense that the state did not raise in district court. See Question Presented. Wood argues that, because the statute of limitations defense is an affirmative defense that is forfeited if not asserted in district court, appellate courts may not raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations argument. See Brief for Petitioner at 20. In contrast, Respondent Milyard contends that, as long as the statute of limitations defense is not “intelligently waived,” a court of appeals has the authority to raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense. See Brief for Respondent, Kevin Milyard at 19.
Do Appellate Court Have Authority to Raise Sua Sponte A 28 U.S.C. § 2244(d) Limitations Defense?
Wood argues that appellate courts may not raise sua sponte a § 2244(d) statute of limitations defense, when the state failed to do so in district court and the district court ruled on the merits. SeeBrief for Petitioner at 20. Wood argues that, according to history and case law, the statute of limitations defense is an affirmative defense that is forfeited if not raised. See Brief for Petitioner at 21–23. Wood contends that, when Congress adopted AEDPA (enabling a one year period to raise a statute of limitations defense), it did so intending to adhere to the “traditional approach” that affirmative defenses are forfeited if not raised. See id. at 21–22. Wood states that, if Congress intended to veer from this “traditional approach” by enacting the § 2244(d) statute of limitations defense, it would have done so explicitly. See id. at 22. Wood argues that the Federal Rules of Civil Procedure apply to habeas corpus actions, as long as the rules are not inconsistent with federal law. See id. at 25–26. Wood explains that the Federal Rules of Civil Procedure demand that the parties raise their statute of limitations defense in district court - because the defense is non-jurisdictional - or else the limitations defense is forfeited on appeal. See id.
Milyard contends that an appellate court has authority to raise sua sponte a statute of limitations defense that was not “intelligently waived” in the district court. See Brief for Respondent at 19. At the outset, Milyard claims that “waiver” and “forfeiture” are not interchangeable terms. See id. at 20. Milyard explains that, if a party expressly waives a defense, appellate review is not permitted. See id. at 21. If, however, an issue or defense is forfeited by a party’s failure to act, Milyard asserts that appellate courts can “resurrect” the defense sua sponte. See id.at 21. Although the court is under no obligation to raise the defense, Milyard contends that, where the party forfeits a defense, the appellate court has the discretion to raise the issue. See id. at 24–25. Milyard also argues that allowing appellate courts to raise “threshold AEDPA issues” is necessary, given the interests at stake in federal habeas petitions. See id. at 26.
Wood further argues that the Day v. McDonough exception, which allows district courts to raise sua sponte a limitations defense, does not apply to appellate courts. SeeBrief for Petitioner at 32. The Court permitted the exception in Day, Wood explains, because litigants are freely able to amend their complaints when still at the district court level. See id. At the appellate court level, however, Wood notes that litigants cannot raise points or arguments that were not raised in the court below. See id. at 32–33. Wood therefore contends that permitting appellate courts to raise sua sponte a limitations defense enables appellate courts to act as “advocates” for certain parties—which, Wood argues, is in direct conflict with the adversarial legal system. See id. at 32–34.
Milyard contends that the Day exception, allowing a district court to raise sua sponte a statute of limitations defense, also applies to appellate courts. See Brief for Respondentat 32. Milyard contends that the underlying policies of Day apply to appellate courts with equal force. Seeid. at 32. Specifically, Milyard argues that allowing appellate courts the authority to raise a limitations defense sua sponte is well aligned with the state’s interest in finality of court determinations, comity between courts, and speed in the habeas petition process. See id. at 30. Unless a state “intelligently waives” its statute of limitations defense, Milyard asserts, Day supports the argument that timeliness should be treated like other “threshold barriers” to a claim such as exhaustion of state remedies and the procedural default doctrine—all of which can be raised by appellate courts sua sponte. Seeid. at 31.
Did the State Waive or Forfeit A Statute of Limitations Defense?
Wood argues that, even if an appellate court could properly raise sua sponte a limitations defense, the state waived its limitations defense in his case when it stated that it “will not challenge, but is not conceding the timeliness of Wood’s habeas petition.” SeeBrief for Petitioner at 34. Specifically, Wood contends that the pleadings submitted by the state demonstrated “clear manifestation of an intentional relinquishment” of the limitations defense. See id. at 35. Therefore, Wood contends that, because the state waived any potential limitations defense it may have had, the Tenth Circuit acted outside its discretion in raising sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense. See id. at 37. In particular, Wood argues that the Tenth Circuit acted outside of its discretion, given that the state’s refusal to raise the limitations defense in district court was, in Wood’s opinion, likely a strategic decision. See id. at 41–42. Specifically, Wood claims that failure to raise the limitations defense in district court decreased the chances for an evidentiary hearing and the likelihood that an attorney would be appointed. See id. at 42.
In contrast, Milyard argues that the state did not “intelligently waive” any statute of limitations defense. SeeBrief for Respondent at 41. Specifically, Milyard argues that the state’s statement that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” falls short of the waiver standard—that a defense is only waived if it is intentionally and knowingly relinquished. See id. at 41. Milyard further explains that “an equivocal statement” does not amount to an intentional and knowing relinquishment of a right.See id. at 42. Milyard contends that, because the state did not waive the § 2244(d) statute of limitations defense, the state’s failure to raise the defense implies the sate’s forfeiture of the defense. See id. at 49. Milyard argues that, although an appellate court should not have the authority to raise a defense that was tactically waived by the defendant, the court can raise a defense that was merely forfeited. See id. at 41–42. Accordingly, Milyard argues that the appellate court did not act outside its discretion in raising sua sponte the statute of limitations defense, because the state did not waive, but rather forfeited, the defense. See Id.
Discussion
The parties chiefly disagree as to whether a court can raise a statute of limitations defense sua sponte in a habeas proceeding. SeeQuestion Presented. Petitioner Wood argues that allowing a court to raise a limitations defense sua sponte will waste judicial resources, needlessly encourage sandbagging, and frustrate the adversarial system, See Brief for Petitioner, Patrick Woodat 26–27. Respondent Milyard asserts that allowing a court to raise such a defense will actually save judicial resources, without compromising the integrity of a proceeding that Milyard argues is not designed to be purely adversarial. See Brief for Respondent, Kevin Milyard at 26–27.
Conserving Judicial Resources
Petitioner Wood argues that a prohibition preventing appellate courts from raising limitations defenses conserves judicial resources in three primary ways; first, Wood asserts that such a rule is simple and easy to enforce, thus saving courts from conducting intensive inquiries as to whether to raise such a defense on their own. See Brief for Petitionerat 27. Second, Wood claims that a rule prohibiting courts from raising timeliness defenses sua sponte will ensure that this potentially dispositive issue is raised before the courts address the merits of a case. Seeid.Finally, according to Wood, a prohibition on raising sua sponte limitations defenses discourages “sandbagging”—a strategic delay in which a party withholds one defense in the hope of succeeding on other defenses. See id.
Respondent Kevin Milyard argues that, contrary to Wood’s assertion, allowing courts to raise timeliness defenses sua sponte will actually conserve judicial resources. See Brief for Respondent at 26–27. According to Milyard, letting a court raise such a defense on its own motion will let the court “screen out” frivolous habeas claims, in order to focus its limited resources on claims with actual merit. See id.at 27To find for Wood, Milyard argues, would be to misuse limited judicial resources and frustrate the process of real justice for proper claims. See id. The United States, as amicus curiae, asserts that the conservation of judicial resources is especially important in the habeas setting, because the costs of hearing habeas petitions are “societal costs” that extend beyond the costs to the parties. See Brief of Amicus Curiae United States in Support of Respondent at 16. Thus, the United States argues, the “gatekeeping” function of courts in this context would be frustrated by preventing courts from raising timeliness defenses on their own motion. See id.
Preserving the Adversarial System
Wood asserts that, in addition to conserving judicial resources, a rule preventing courts from raising timeliness defenses sua sponte strengthens the adversarial system that forms the bedrock of the American judicial system. See Brief for Petitioner at 27. Wood argues that the traditional American approach to justice requires that parties raise issues themselves, and that preventing a court from raising an issue on its own motion preserves this tradition. See id.at 33–34. To hold otherwise, according to Wood, would allow courts to cross the line from judging to acting as an advocate for a party. See id.at 33. In addition, Wood asserts that a rule against raising sua sponte limitations defenses advances the “appearance of impartiality,” by preventing courts from intervening on one party’s behalf. See id.at 27.
Respondent Milyard counters Wood’s assertions by arguing that habeas proceedings present a less adversarial setting than does most litigation, and that adversarial principles are counterbalanced by other considerations in the habeas context. See Brief of Respondent at 26. According to Milyard, federal review of state court convictions should be done carefully, so as not to upset the “mutual respect” between state and federal courts. See id.Milyard asserts that habeas proceedings entail “profound societal costs” impacting interests other than those of the parties. See id.For these reasons, Milyard argues, habeas proceedings are not designed to be “purely" adversarial. See id.at 38. The United States similarly argues that allowing overly liberal review of habeas petitions undermines the redistributive and deterrent functions of criminal law by impinging on the finality of state court decisions. See Brief of United States at 15.
Conclusion
This case will address whether an appellate court can raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense that was waived or forfeited by a party at the district court level. Petitioner Patrick Wood argues that the state waived its statute of limitations defense, and that an appellate court cannot raise sua sponte a statute of limitations defense following a failure by the party to raise the defense at the district court. In opposition, Respondent Kevin Milyard argues that appellate courts do have authority to raise sua sponte a statute of limitations defense, as long as the defense was not intelligently waived at the district court level. The Supreme Court's decision will impact the process by which courts review habeas petitions.
Written by
Edited by
Acknowledgments
Additional Resources
Supreme Court to Address Habeas Statute of Limitations Defense, Life Sentences Blog, (Sept. 27, 2011)
The Short List from the Long Conference, Crime and Consequences (Sept. 27, 2011).