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Argument preview: Appellate authority to raise AEDPA limitations sua sponte

When Patrick Wood, a Colorado state prisoner, was too late in seeking federal habeas-corpus relief, the state told the federal district court that it neither challenged nor conceded the timeliness of Wood’s petition.  The district court denied the petition without addressing its timeliness, and Wood appealed.  Under these circumstances, did the court of appeals have authority to affirm the district court on the sole ground that the petition was untimely?  This is the question before the Court on February 27, 2012, in Wood v. Milyard.

Facts and procedural history

In 1986, Patrick Wood was convicted of murder in Colorado state court.  In 1995, he filed a post-conviction petition in state court to vacate his conviction and sentence.  In December 1995, the state court appointed the Colorado Public Defender’s Office to represent Wood.

In 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into effect.  AEDPA imposes a one-year limitations period for filing a federal habeas petition, which can be tolled by the pendency of a state post-conviction petition.

Nothing happened in Wood’s state post-conviction action for more than eight years.  Hearing nothing from the state court, Wood filed a second state post-conviction petition in 2004.  The state courts denied the 2004 petition.

Exactly one year later, Wood filed a habeas petition in federal district court.  Wood mentioned his 2004 state petition but not his 1995 state petition.  Accordingly, the district court denied Wood’s federal petition as time-barred without requiring a response from the state.

Wood then filed a motion for reconsideration, which the district court granted.  In its pre-answer response and its formal answer, the state acknowledged the possibility that Wood had abandoned his 1995 petition and that his federal habeas petition was therefore untimely, but it nevertheless asserted that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.”  The district court denied the petition without deciding the timeliness issue.

The Tenth Circuit granted a certificate of appealability, but it also directed the parties to address whether Wood’s federal habeas petition was timely.  Responding to the Tenth Circuit’s directive, the state argued, for the first time, that AEDPA’s deadline barred Wood’s federal habeas petition.

The Tenth Circuit affirmed only on the timeliness ground.  It held that because Wood abandoned his 1995 petition sometime before filing his 2004 petition, his one-year deadline thus expired before he filed his federal habeas petition.

Wood filed a petition for certiorari, arguing that the Tenth Circuit’s holding conflicts with the decisions of two other circuits.  The Court granted certiorari in September 2011 to consider both whether the Tenth Circuit can raise a statute of limitations defense sua sponte and whether the state’s actions had waived such as defense.

Merits briefs

In his brief on the merits, Wood argues that the state’s failure to assert the AEDPA’s limitations defense in the district court precludes the appellate court from raising the defense on its own.  To support this contention, he cites Kontrick v. Ryan (2004), in which the Court held that a bankruptcy debtor could not challenge the timeliness of a creditor’s objection to discharge because the debtor failed to raise the timeliness defense until after the court had adjudicated the creditor’s complaint on the merits, and Eberhart v. United States (2005), in which the Court held that the government could not raise the timeliness of a criminal defendant’s motion for a new trial for the first time on appeal.  In response, the state distinguishes Kontrick and Eberhart as cases preventing a party – rather than the court – from raising a forfeited issue.

The state also points to Day v. McDonough (2006), in which the Court held that a district court could raise the AEDPA time bar sua sponte even though the state had forfeited the defense.  Wood contends that Day does not extend to appellate courts, at least not when the state acknowledged the timeliness issue in the district court.  The state counters that the Supreme Court has allowed appellate courts to raise a number of forfeited issues on their own, such as in Granberry v. Greer (1987) (habeas exhaustion), Caspari v. Bohlen (1994) (Teague nonretroactivity), and Arizona v. California (2000) (preclusion).  Wood replies that the systemic values of comity and federalism that animated those decisions are not implicated by the AEDPA time bar, which is a limitations defense designed to encourage timely filings, promote finality, and safeguard party repose.  The state disagrees, casting the AEDPA deadline as furthering federalism, finality, and docket control, values that underlie other issues that appellate courts can protect on their own.

Normatively, Wood argues that applying this forfeiture rule to AEDPA’s one-year deadline has a number of benefits.  First, it forces the state to raise (and the district court to resolve) dispositive limitations defenses before judicial and litigant resources are expended on the merits of the case.  Second, it discourages the state from sandbagging its defense for strategic advantage, perhaps hoping to win on favorable merits grounds.  Third, it advances the principles of the adversary system by requiring the parties to pursue the issues they believe most favorable to their interests.  Fourth, it advances judicial neutrality by reducing the authority of the court to raise an issue unfavorable to one litigant.

The state counters by urging that broad appellate authority to raise timeliness issues sua sponte makes good sense because such issues can terminate a habeas appeal clearly and expeditiously.  The state also argues that giving appellate courts flexibility to ensure the timeliness of a petition may also give them more comfort in exercising discretion to hear habeas appeals on the merits.  Finally, the state contends, requiring the state to take a position on the timeliness of a habeas petition at a very early stage in the litigation can be onerous for the state, which may not have sufficient information to be able to do so.

The state also argues that deliberate waiver generally prevents a court from considering the issue on its own, but forfeiture (which is what the state argues happened here) generally does not.  The United States, which filed a brief as an amicus in support of the state, makes a similar argument by reiterating that the question is not whether the appellate court must raise the timeliness issue sua sponte but rather whether it may raise it.  The United States contends that appellate courts inherently possess discretionary authority to raise forfeited defenses unless written law prohibits it.

The parties dispute the characterization of the state’s conduct in this particular case.  Wood characterizes the state’s statements in the district court as a deliberate waiver of the limitations defense, because the state recognized that the defense was available but specifically declined to raise it.  The state disagrees, contending that its position of “not conceding” the timeliness of the petition makes clear that no waiver occurred.  The state also characterizes its position as based on a misunderstanding of how AEDPA’s deadline interacts with abandonment rules.  Such a misunderstanding, the state reasons, cannot give rise to a knowing and intelligent waiver.


This case provides the Court with an opportunity to flesh out a number of “soft” forms of federal procedural common law.  In particular, how do party waiver, party forfeiture, and judicial authority interact?  Wood’s theory is that waiver and forfeiture both cabin the authority of appellate courts to consider the issue sua sponte (with some exceptions based on the importance of any systemic interests at stake).  The state’s theory is that although waiver cabins judicial authority, forfeiture does not.  A third theory (that I raise, sua sponte), is that waiver and forfeiture constrain party conduct but not inherent judicial authority, which instead depends upon the particular systemic values at stake.

A refusal to allow party conduct to control court authority could create enforcement difficulties.  In other words, if forfeiture bars a party from re-raising an issue but does not bar a court from raising the issue, the forfeiting party may use hints and innuendos to try to persuade the court to raise the issue.  In other words, it could be difficult to determine when a party was unlawfully trying to “raise” a forfeited issue.

Neither party seemed to consider the possibility that the state’s seemingly ambivalent position – neither challenging nor conceding the timeliness of Wood’s habeas petition – could in fact be perfectly coherent.  The state’s assertion to the district court might mean simply that although the state was not asserting the legal defense in this case, it also was not conceding the factual issue of timeliness.  After all, the forfeiture or waiver of the legal defense affects only the case at hand, while the factual concession could affect other cases with similar facts.  For a repeat litigant routinely faced with the same issues – such as a state in habeas cases involving limitations issues – preserving the ability to take a particular position in a future case might be important.

The broader implications of the case might also affect other doctrines.  For example, Rule 60(b)(6) of the Federal Rules of Civil Procedure allows a losing litigant to seek relief from judgment, but only if he shows extraordinary circumstances.  In Ackermann v. United States (1950), the Supreme Court held that a losing party’s deliberate choice not to appeal cannot support Rule 60(b)(6) relief.  The Court has never explained what other deliberate litigation choices might disqualify Rule 60(b)(6) relief or whether the district court can, sua sponte, consider forgone options in granting relief.

Wood might also have something to say about state sovereign immunity (and, perhaps, vice versa).  State sovereign immunity is waivable.  But, in Edelman v. Jordan (1974), the Court allowed a state to assert immunity for the first time on appeal.  And in Ford Motor Co. v. Department of Treasury (1945), overruled in part by Lapides v. Board of Regents (2002), the Court allowed a state to assert immunity for the first time in the U.S. Supreme Court.  In addition, Justice Kennedy, in his widely cited concurrence in Wisconsin Department of Corrections v. Schacht (1998), hinted that district courts are under no obligation to enforce immunity sua sponte.  As I have written elsewhere, even when the state has waived the issue, it may be appropriate for courts to raise state sovereign immunity sua sponte in limited instances, such as if the court is unsure whether any waiver was valid.  For these reasons, Wood may shed insight into the character, and in the opportunities for characterizing, state sovereign immunity.

Recommended Citation: Scott Dodson, Argument preview: Appellate authority to raise AEDPA limitations sua sponte, SCOTUSblog (Feb. 8, 2012, 11:35 AM),