The Lawletter Vol 37 No 1
"It ain't over 'til it's over."—Yogi Berra
The U.S. Supreme Court recently considered whether a federal appellate court has the authority to address sua sponte the timeliness of a state prisoner's federal habeas petition. Relying on prior precedent holding that a federal district court may consider a statute of limitations, Day v. McDonough, 547 U.S. 198, 202 (2006), or exhaustion, Granberry v. Greer, 481 U.S. 129, 134 (1987), defenses not raised by the State in answering the habeas petition at issue in Wood v. Milyard, 132 S. Ct. 1826 (2012), the Court held in an opinion written by Justice Ginsburg that an appellate court has the authority to consider, on its own motion, a forfeited timeliness defense. However, the Court concluded that the U.S. Court of Appeals for the Tenth Circuit had abused its discretion in denying the petition on the ground of timeliness because the State did not merely forfeit the defense by inadvertent omission, but it knowingly waived the defense by affirmatively declining to assert the statute of limitations defense.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which applied to the petition in Milyard, 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 the AEDPA was enacted, the one‑year limitations period runs from the AEDPA's effective date, that is, April 24, 1996. The one‑year clock is stopped during the time a properly filed application for state postconviction relief is pending. Id. § 2244(d)(2).
In Milyard, the state judgment became final on direct review in early 1990. Thus, the time for filing a federal petition began to run on April 24, 1996 and would expire on April 24, 1997 unless a properly filed application for state postconviction relief was pending in Colorado state court during that period. The prisoner maintained that he had had such an application pending on April 24, 1996, that is, a motion for postconviction relief that he had filed in 1995 and that remained pending until he filed a second petition in August 2004. The prisoner argued that the second petition had further tolled the limitations period until February 5, 2007, exactly one year before he filed the federal petition at issue in Milyard.
In its preanswer response to the federal petition for writ of habeas corpus, the State acknowledged that it was arguable that the 1995 petition had been abandoned before 1997 and therefore did not toll the AEDPA statute of limitations. However, the State informed the federal district court that it would not challenge the petition on the ground of timeliness. The State reasserted its position in its full answer and defended on the merits, and the district court issued an opinion denying the petition, in part on the merits and in part for failure to exhaust. On appeal, the Tenth Circuit directed the parties to brief the timeliness issue and then ruled that the petition was time-barred without addressing the merits.
The Supreme Court recognized that the appeals court had the authority, but not the obligation, to consider a forfeited timeliness defense to further values beyond the concerns of the parties, such as judicial efficiency, conservation of judicial resources, safeguarding the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and giving finality to state judgments within a reasonable time. However, in Milyard, the State had not merely forfeited the timeliness defense by overlooking it; it had strategically withheld the limitations defense and chosen to relinquish it. The distinction between forfeiture and waiver was key to the decision. Under those circumstances, it was inappropriate for the court of appeals to dismiss the petition as untimely.
Justice Thomas, joined by Justice Scalia, wrote a short decision concurring in the judgment but refusing to join in the decision because they believed that Day, on which the Court had relied, had been wrongly decided.