throbber
(Slip Opinion)
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` OCTOBER TERM, 2011
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
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`
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
`
` Syllabus
`
` WOOD v. MILYARD, WARDEN, ET AL.
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE TENTH CIRCUIT
` No. 10–9995. Argued February 27, 2012—Decided April 24, 2012
`
`In 1987, petitioner Patrick Wood was convicted of murder and other
`crimes by a Colorado court and sentenced to life imprisonment. Wood
`filed a federal habeas petition in 2008. After receiving Wood’s peti-
`tion, the U. S. District Court asked the State if it planned to argue
`that the petition was untimely. In response, the State twice informed
`the District Court that it would “not challenge, but [was] not conced-
`ing,” the timeliness of Wood’s petition. Thereafter, the District Court
`rejected Wood’s claims on the merits. On appeal, the Tenth Circuit
`ordered the parties to brief both the merits and the timeliness of
`
`
`Wood’s petition. After briefing, the court held the petition time
`barred, concluding that the court had authority to raise timeliness on
`its own motion, and that the State had not taken the issue off the ta-
`ble by declining to raise a statute of limitations defense in the Dis-
`trict Court.
`Held:
`
`1. Courts of appeals, like district courts, have the authority—
`though not the obligation—to raise a forfeited timeliness defense on
`their own initiative in exceptional cases. Pp. 4–9.
`
`(a) “Ordinarily in civil litigation, a statutory time limitation is
`
`forfeited if not raised in a defendant’s answer or in an amendment
`thereto.” Day v. McDonough, 547 U. S. 198, 202. An affirmative de-
`fense, once forfeited, is excluded from the case and, as a rule, cannot
`
`be asserted on appeal.
`In Granberry v. Greer, 481 U. S. 129, 133, this Court recognized a
`
`modest exception to the rule that a federal court will not consider a
`forfeited defense. There, the Seventh Circuit addressed a nonexhaus-
`tion defense the State raised for the first time on appeal. The ex-
`haustion doctrine, this Court noted, is founded on concerns broader
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`WOOD v. MILYARD
`
`Syllabus
`
`than those of the parties; in particular, the doctrine fosters respect-
`ful, harmonious relations between the state and federal judiciaries.
`Id., at 133–135. With that comity interest in mind, the Court held
`
`
`that federal appellate courts have discretion to consider a nonexhaus-
`tion argument inadvertently overlooked by the State in the district
`court. Id. at 132, 134.
`
`
` In Day, the Court affirmed a federal district court’s authority to
`
`consider a forfeited habeas defense when extraordinary circumstances
`
`so warrant. 547 U. S., at 201. The State in Day, having miscalcu-
`
`lated a time span, erroneously informed the District Court that Day’s
`habeas petition was timely. Apprised of the error by a Magistrate
`
`Judge, the District Court, sua sponte, dismissed the petition as un-
`
`timely. This Court affirmed, holding that “district courts are permit-
`ted, but not obliged, to consider, sua sponte, the timeliness of a state
`
`prisoner’s habeas petition.” Id., at 209. Such leeway was appropri-
`
`ate, the Court again reasoned, because AEDPA’s statute of limita-
`tions, like the exhaustion doctrine, “implicat[es] values beyond the
`concerns of the parties.” Id., at 205.
`
`The Court clarified, however, that a federal court does not have
`
`carte blanche to depart from the principle of party presentation. See
`
`
`Greenlaw v. United States, 554 U. S. 237, 243–244. It would be “an
`
`
`abuse of discretion” for a court “to override a State’s deliberate waiv-
`er of a limitations defense.” Day, 547 U. S., at 202. In Day itself, the
`
`State’s timeliness concession resulted from “inadvertent error,” id., at
`211, not a deliberate decision to proceed to the merits. Pp. 6–9.
`(b) Consistent with Granberry and Day, the Court declines to
`adopt an absolute rule barring a court of appeals from raising, on its
`own motion, a forfeited timeliness defense. The institutional inter-
`ests served by AEDPA’s statute of limitations are also present when
`a habeas case moves to the court of appeals, a point Granberry recog-
`nized with respect to a nonexhaustion defense. P. 9.
`2. 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 that defense. Yet,
`the State twice informed the District Court that it would not “chal-
`lenge” the timeliness of Wood’s petition. In so doing, the State delib-
`erately waived the statute of limitations defense. In light of that
`
`waiver, the Tenth Circuit should have followed the District Court’s
`
`lead and decided the merits of Wood’s petition. Pp. 9–11.
`403 Fed. Appx. 335, reversed and remanded.
`GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
`
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` C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined.
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` Cite as: 566 U. S. ____ (2012)
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`Syllabus
`THOMAS, J., filed an opinion concurring in the judgment, in which SCA-
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`LIA, J., joined.
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`3
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` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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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
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`WOOD v. MILYARD
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`Opinion of the Court
`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 limita-
`tions 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 sen-
`tenced to life imprisonment. The Colorado Court of Ap-
`peals 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 sen-
`tence. 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
`——————
`1Colorado Rule of Criminal Procedure 35(c) (1984) provides, in rele-
`vant part: “[E]very person convicted of a crime is entitled as a matter of
`right to make application for postconviction review upon the groun[d]
`. . . [t]hat the conviction was obtained or sentence imposed in violation
`of the Constitution or laws of the United States or the constitution or
`laws of this state.”
`
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`2
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`3
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` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`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: “Re-
`
`spondents are not challenging, but do not concede, the
`timeliness of the petition.” Id., at 87a.
`
`Disposing of Wood’s petition, the District Court dis-
`missed certain claims for failure to exhaust state reme-
`dies, 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
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`

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`4
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`WOOD v. MILYARD
`
`Opinion of the Court
`held the petition time barred. 403 Fed. Appx. 335 (2010).
`In so ruling, the Court of Appeals concluded it had author-
`ity 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), 110 Stat. 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.,
`——————
`2The Tenth Circuit’s conclusion that it had authority to raise an
`
`
` AEDPA statute of limitations defense sua sponte conflicts with the view
` of the Eighth Circuit. Compare 403 Fed. Appx. 335, 337, n. 2 (CA10
`
`
`
`
`
` 2010) (case below), with Sasser v. Norris, 553 F. 3d 1121, 1128 (CA8
`2009) (“The discretion to consider the statute of limitations defense
`sua sponte does not extend to the appellate level.”).
`
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`Cite as: 566 U. S. ____ (2012)
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`Opinion of the Court
` 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” applica-
`
`tion 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 peti-
`tion 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 ques-
`tion: 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
`——————
` 3The one-year clock may also be stopped—or “tolled”—for equitable
`
`reasons, notably when an “extraordinary circumstance” prevents a
`
` prisoner from filing his federal petition on time. See Holland v. Flor-
`ida, 560 U. S. ___ (2010). Wood does not contend that the equitable
`tolling doctrine applies to his case. App. 144a, n. 5.
`
`
`
`5
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`WOOD v. MILYARD
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`Opinion of the Court
`before 1997 and thus did not toll the AEDPA statute of
`limitations at all.” Ibid. But rather than inviting a deci-
`sion on the statute of limitations question, the State in-
`formed 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 as-
`serted 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
`——————
`4We 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. Kontrick v. Ryan, 540 U. S.
`
`
` 443, 458, n. 13 (2004); United States v. Olano, 507 U. S. 725, 733
`
`
` (1993). That distinction is key to our decision in Wood’s case.
`
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`Cite as: 566 U. S. ____ (2012)
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`Opinion of the Court
`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 doc-
`trine 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
`
`——————
`5Although our decision in Granberry v. Greer, 481 U. S. 129 (1987),
`
`did not expressly distinguish between forfeited and waived defenses, we
`
`
` made clear in Day v. McDonough, 547 U. S. 198 (2006), that a federal
`court has the authority to resurrect only forfeited defenses. See infra,
`at 8–9.
`
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`7
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`8
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`WOOD v. MILYARD
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`Opinion of the Court
`Magistrate Judge caught the State’s computation error
`and recommended that the petition be dismissed as un-
`
`timely, notwithstanding the State’s timeliness concession.
`Id., at 204. The District Court adopted the recommenda-
`
`tion, 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 proce-
`dural 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, “im-
`plicat[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 con-
`servation of judicial resources, safeguards the accuracy of
`state court judgments by requiring resolution of constitu-
`tional 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 presen-
`tation 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 [limita-
`tions] 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
`
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`

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` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`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 discre-
`tion,” we observed, for a court “to override a State’s delib-
`erate 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 limi-
`tations are also present when a habeas case moves to the
`court of appeals, a point Granberry recognized with re-
`spect 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 au-
`
`thority—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 ad-
`dress, sua sponte, the timeliness of a habeas petition,
`appellate courts should reserve that authority for use in
`exceptional cases. For good reason, appellate courts ordi-
`narily 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 in-
` vestment is also a consideration appellate courts should
`
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`9
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`10
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`WOOD v. MILYARD
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`Opinion of the Court
`It typically takes a district court more
`not overlook.
`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 con-
`siderations, 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 Dis-
`trict Court that it “will not challenge, but [is] not conced-
`
`
`ing” 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 aban-
`donment 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
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` 11
`
`
`
`
`
`It is so ordered.
`
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
`Opinion of the Court
`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 there-
`fore 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.
`
`
`
`
`
`
`

`
`
`
`
`
`1
`
` Cite as: 566 U. S. ____ (2012)
`
` THOMAS, J., concurring in judgment
`
`
`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 THOMAS, with whom JUSTICE SCALIA joins,
`concurring in the judgment.
`In Day v. McDonough, 547 U. S. 198 (2006), the Court
`
`held that a federal district court may raise sua sponte a
`forfeited statute of limitations defense to a habeas corpus
`
`petition. Relying on Day and Granberry v. Greer, 481
`U. S. 129 (1987), the Court now holds that a court of ap-
`peals may do the same. Because I continue to think that
`Day was wrongly decided and that Granberry is inappo-
`site, I cannot join the Court’s opinion. See Day, 547 U. S.,
`
`at 212–219 (SCALIA, J., joined by THOMAS and BREYER,
`
`
`
`JJ., dissenting).
`
`As the dissent in Day explained, the Federal Rules of
`
`
`Civil Procedure apply in habeas corpus cases to the extent
`that they are consistent with the Habeas Corpus Rules,
`the habeas corpus statute, and the historical practice of
`habeas proceedings. Id., at 212 (citing Gonzalez v. Crosby,
`
`545 U. S. 524, 529–530 (2005), and Woodford v. Garceau,
`538 U. S. 202, 208 (2003)). As relevant here, the Rules of
`Civil Procedure provide that a defendant forfeits his stat-
`ute of limitations defense if he fails to raise it in his an-
`swer or in an amendment thereto. 547 U. S., at 212 (citing
`Rules 8(c), 12(b), 15(a)). That forfeiture rule is fully con-
`sistent with habeas corpus procedure. As an initial mat-
`ter, the rule comports with the Habeas Rules’ instruction
`
`

`
`WOOD v. MILYARD
`
` THOMAS, J., concurring in judgment
`
`
`that a State “must” plead any limitations defense in its
`answer.
`Id., at 212–213 (quoting Rule 5(b) (emphasis
`deleted)). Moreover, the rule does not conflict with the
`habeas statute, which imposes a 1-year period of limita-
`tions without any indication that typical forfeiture rules
`
`do not apply. Id., at 213 (citing 28 U. S. C. §2244(d)(1)).
`
`Finally, the rule does not interfere with historical practice.
`Prior to the enactment of a habeas statute of limitations in
`the Antiterrorism and Effective Death Penalty Act of 1996
`(AEDPA), habeas practice included no limitations pe-
`riod at all, much less one immune to forfeiture. 547 U. S.,
`at 212.
`
`
`As the dissent in Day further explained, id., at 214,
`AEDPA’s statute of limitations is distinguishable from the
`equitable defenses that we have traditionally permitted
`federal habeas courts to raise sua sponte. See, e.g., Gran-
`berry, supra, at 133 (holding that appellate courts may
`consider a habeas petitioner’s failure to exhaust state rem-
`edies despite a State’s forfeiture of the defense). Those
`
`judicially created defenses were rooted in concerns of com-
`ity and finality that arise when federal courts collaterally
`
`review state criminal convictions. Day, 547 U. S., at 214.
`
`But those same concerns did not lead this Court to recog-
`nize any equitable time bar against habeas petitions. Id.,
`at 214–215. Thus, nothing in this Court’s pre-existing
`doctrine of equitable defenses supported the Day Court’s
`“decision to beef up the presumptively forfeitable ‘limita-
`tions period’ of §2244(d) by making it the subject of sua
`sponte dismissal.” Id., at 215–216.
`
`For these reasons, I believe that the Day Court was
`
`wrong to hold that district courts may raise sua sponte
`
`forfeited statute of limitations defenses in habeas cases. I
`therefore would not extend Day’s reasoning to proceedings
`
`
`in the courts of appeals. Appellate courts, moreover, are
`particularly ill suited to consider issues forfeited below.
`
`Unlike district courts, courts of appeals cannot permit a
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`

`
`
`
`3
`
`
`
` Cite as: 566 U. S. ____ (2012)
`
` THOMAS, J., concurring in judgment
`
`
` State to amend its answer to add a defense, nor can they
`
`develop the facts that are often necessary to resolve ques-
`tions of timeliness. Cf. id., at 209 (majority opinion) (find-
`ing no difference between a district court’s ability to raise
`a forfeited limitations defense sua sponte and its ability to
`notice the State’s forfeiture and permit an amended plead-
`ing under Rule of Civil Procedure 15).
`In light of these considerations, I cannot join the Court’s
`
`
`holding that a court of appeals has discretion to consider
`sua sponte a forfeited limitations defense. Nor can I join
`
`the Court’s separate holding that the Court of Appeals
`abused its discretion by raising a defense that had been
`
`deliberately waived by the State. As the dissent in Day
`noted, there is no principled reason to distinguish between
`forfeited and waived limitations defenses when determin-
`ing whether courts may raise such defenses sua sponte.
`
`
` See 547 U. S., at 218, n. 3 (explaining that, if “‘values
`
`
`beyond the concerns of the parties’” justify sua sponte
`consideration of forfeited defenses, such values equally
`
`support sua sponte consideration of waived defenses).
`Therefore, I concur only in the judgment.

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