Opinion analysis: An appellate court lacks discretion to override a state’s deliberate waiver of AEDPA’s limitations defense
Posted on April 24, 2012 at 4:29 pm by Scott Dodson
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year limitations period for filing a federal habeas petition. If the state recognizes that a habeas petitioner’s petition for relief may be untimely but deliberately waives its limitations defense, may an appellate court nevertheless decide the issue sua sponte? Today, the Court decided Wood v. Milyard (10-9995), holding unanimously that an appellate court may not do so. (A brief Plain English summary of the decision is available at the end of this post.)
In his brief on the merits, petitioner Patrick Wood had argued that appellate courts can never consider waived or forfeited limitations defenses. Although the Court in Day v. McDonough (2006) had held that a district court could raise the AEDPA time bar sua sponte despite the state’s inadvertent forfeiture of the defense, Wood argued that such discretion did not extend to the appellate court.
The Court in Wood rejected that argument. Although it acknowledged the general rule that a federal court will not consider a forfeited affirmative defense, it also recognized, citing to Granberry v. Greer (1987), that the bar to appellate consideration of a forfeited defense “is not absolute.” Accordingly, the Court “decline[d] to adopt an absolute rule barring a court of appeals from raising, on its own motion, a forfeited timeliness defense.” Instead, the Court affirmed that “courts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative.”
Nevertheless, the Court cautioned that courts of appeals should “reserve that authority for use in exceptional cases.” One reason for restraint, explained the Court, is that the parties may have structured their appellate arguments on the assumption that the forfeited issue was settled. Another is “[d]ue regard for the trial court’s processes and time investment.” In sum, the Court admonished appellate courts to exercise their sua sponte discretion sparingly.
With those standards articulated, the Court then turned to the facts of Wood’s case. The Court found that – unlike the state in Day – here the state had not inadvertently forfeited the limitations defense; instead, it had instead intelligently and deliberately waived it. In light of such an intelligent and deliberate waiver, the court of appeals abused its discretion in raising and deciding the issue anyway.
Justice Thomas, joined by Justice Scalia, concurred in the judgment only. Justices Thomas and Scalia, who dissented in Day from the holding that district courts have discretionary authority to raise forfeited limitations defenses sua sponte, adhered to their view that Day was wrongly decided. Accordingly, they would have held that courts of appeals have no discretion to revive a forfeited AEDPA limitations defense, whatever the circumstances.
Perhaps this case will be remembered, if at all, as the least important case on the Court’s docket this year. That seems to be how the Justices treated it. By construing the state’s conduct as a deliberate waiver, and by marginalizing Granberry as a “modest exception,” the Court greatly simplified matters; from there, a rote application of Day led straight to an unsurprising, narrow, and thoroughly mundane result. It makes one wonder, as Justice Scalia did during oral argument, why the Court took the case in the first place.
Despite the simplification, the Court’s opinion is unsatisfying in several respects. First, the Court’s justification for allowing discretion in the first place is in tension with its rationale for why that discretion should be cabined in all but the most exceptional cases. The Court supports discretion with the strong federalism and systemic values at stake in habeas cases. But those values find no traction in the Court’s discussion of why the court of appeals abused its discretion in this case. Further, those values are largely indifferent to the distinction between forfeiture and waiver, which the Court believes is “key” to its decision. Finally, the countervailing values that the Court does cite to limit discretion – that the parties would not have anticipated having to develop their arguments on the issue on appeal and that appellate courts should respect trial courts’ processes and time investment – are woefully light.
Second, the Court does not offer a convincing theory for why and how party conduct affects a court’s inherent sua sponte authority. The Justices probed that issue extensively in oral argument, but the Court’s opinion leaves its theoretical foundation unstated.
Third, the Court’s opinion leaves some important issues undecided. The opinion says little about how party forfeiture affects a court’s sua sponte authority. Although the Court cautioned that sua sponte authority was to be exercised in extraordinary circumstances, the two major forfeiture cases on which the Court relied (Day and Granberry) both held the exercise of such authority proper. Accordingly, the opinion offers conflicting guideposts for how a court should exercise its sua sponte discretion in the face of forfeiture.
The decision in Plain English
A state prisoner who is challenging his conviction in federal court on the ground that it was unconstitutional must file his challenge within one year after his state court conviction becomes final. If the prisoner files his challenge late, then the state may win a dismissal of the lawsuit simply on the grounds that the lawsuit is untimely. In this case, the Supreme Court considered whether an appellate court could dismiss the prisoner’s case because he filed his challenge too late even when the state did not argue that the lawsuit was too late. The Court held that, in exceptional cases, the lower court can dismiss the case, but it is not required to do so. Here, when the state specifically recognized that the challenge was filed late but declined to argue that the lateness warranted dismissal, the lower court should not have dismissed the lawsuit.