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Argument recap: Disregarding a state’s litigation decisions on habeas

Yesterday the Court heard oral arguments in Wood v. Milyard.  The issue in the case is whether, when a state neither challenges nor concedes the timeliness of a state habeas petition, an appellate court can raise and decide the issue on its own.

Three primary themes ran throughout the oral argument.

The first theme was a focus on power and discretion.  Justice Sonia Sotomayor pressed Assistant Federal Public Defender Kathleen A. Lord, arguing on behalf of petitioner Patrick Wood, on the difference between appellate power and discretion.  Justice Sotomayor asked whether the state’s conduct circumscribed the power of the court of appeals or whether the state’s conduct was just a factor in how the court of appeals exercised its discretion.  Ms. Lord responded that the state’s conduct amounted to a deliberate waiver and thus circumscribed the authority of the court of appeals to raise the issue again on its own.  Colorado Solicitor General Daniel D. Domenico, arguing on behalf of the state, naturally disagreed.  Chief Justice John Roberts and Justice Antonin Scalia seemed to agree with him that the state’s conduct did not deprive the court of appeals of the power to exercise discretion.  But Justices Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer seemed more receptive to the idea that party conduct can constrain both the power and the discretion of a court of appeals.

A second theme was on the meaning of the two key precedential cases of Granberry v. Greer and Day v. McDonough.  In Granberry, the Supreme Court allowed a state to raise a habeas exhaustion defense for the first time on appeal, even though the state had forfeited the defense in the district court.  And, in Day, the Supreme Court allowed a district court to raise, on its own, the same habeas limitations defense at issue in Wood.

Justice Kagan was the first to point out that these cases, taken together, could create a problem for Wood, particularly because Day drew upon Granberry in suggesting that the habeas exhaustion defense and the habeas limitations defense were two peas in a pod.  Ms. Lord responded in several ways.  She distinguished Granberry as a case that did not involve sua sponte actions by the court; in that case, the state in fact raised the exhaustion issue (for the first time on appeal).  She also argued that exhaustion is different than limitations because although a limitations period denies relief, exhaustion just delays it.  Finally, Ms. Lord distinguished Day as a case that allowed the court to ensure that the state really wanted to let the limitations defense go.

Later, Justice Kagan acknowledged that the precedent had a gap; although Granberry and Day together will get the state “most of the way there,” the “one difference is that here there was sua sponte decision by the Court; whereas, in even the combination of Granberry and Day, it was a party that raised it, although the party raised it late.  So why should that difference not matter?”  Assistant to the Solicitor General Melissa Arbus Sherry, arguing on behalf of the federal government as amicus curiae in support of the state, responded that habeas proceedings imbue courts with greater screening authority, so party presentation holds relatively low value.  Justices Scalia and Alito seemed to agree that waiver, forfeiture, and inherent-authority rules ought to be different in the habeas context.

Justice Ginsburg, the author of Day (and the possible author of Wood), also distinguished the case.  In Day, the district court noticed the state’s computation error and brought it to the state’s attention, then allowed the state to revive its forfeited limitations defense.  That was a permissible exercise of the trial judge’s discretion.  But Wood, Justice Ginsburg remarked, is “so different” because the state timely acknowledged the availability of the defense but deliberately refused to pursue it.  In her view, the state’s conduct was not the kind of negligent oversight at issue in Day.  It was an affirmative representation that the state was relinquishing the right to assert the timeliness defense.

The third theme of the oral argument flows from the second: how to characterize the state’s conduct in this case.  Justices Sotomayor and Alito both asked Ms. Lord whether knowing silence would be forfeiture or waiver.  At one point, Ms. Lord appeared to concede that deliberate silence would not deprive the appellate court of authority to decide the issue on its own.  However, Ms. Lord argued that this case was different because the state acknowledged the issue and affirmatively declined to pursue it.


The Justices seemed to appreciate the difference between a litigant’s substantive right to a limitations-based dismissal and the litigant’s procedural right to raise the limitations defense in a motion, and they all seemed to understand that the state only gave up the latter.  Justice Breyer, however, suggested that the two merge when a court apprises the litigant of its procedural right, but the litigant deliberately refuses to exercise it.

Mr. Domenico maintained that a waiver must be “unequivocal and clear,” but several Justices – including Justices Sotomayor, Breyer, Kagan, and Ginsburg – seemed to buy Ms. Lord’s characterization of the state’s conduct as a deliberate waiver.

Justice Breyer, for example, told Mr. Domenico that according to Black’s Law Dictionary, “it seems like you lose.”  Forfeiture, he said, is the loss of a right, which might fit the fact pattern of Day.  But waiver, Justice Breyer continued, is the voluntary relinquishment of a right, and by acknowledging and refusing to press the right, Colorado waived it in this case.

Justice Breyer then posited a hypothetical: say the state just forgets and the court tells the state it hasn’t raised the limitations defense in a timely fashion.  Then, Justice Breyer continued, the state responds one of three ways: (1) oops, my mistake, I’d like to raise it now; (2) I don’t care; or (3) I don’t want to raise it.  Justice Breyer suggested that the first is a forfeiture covered by Day, but the third is a waiver presented by this case.  (He didn’t say how he would characterize the second response.)

Justice Kagan also pressed the state, saying that the state was “saying something considerably more” than what was allowed in Day.  When a state gets up after an inquiry by the court and affirmatively disavows the argument, she noted, “that’s unequivocal to me.”

Justice Scalia, who asked only a few questions, seemed more interested in the practical issue at stake: whether a court of appeals could raise the habeas limitations issue on its own.  In his view, if the Court instead had to decide whether to characterize the state’s conduct in this case as waiver or forfeiture, then he would prefer to dismiss the writ as improvidently granted because that decision was too fact-bound to justify certiorari review.


Notably, a few issues from the briefs received little airtime during oral argument.  First, and perhaps most interesting, no Justice questioned the advocates about the distinction that Ms. Lord drew in her brief between district-court authority and appellate-court authority to exercise sua sponte power.  That distinction formed a major part of her opening brief on the merits and relied in part on the cases of Kontrick and Eberhart, neither of which was mentioned during oral argument.  It appears the Justices were persuaded by the state’s argument that those cases were too far afield as non-habeas, true-forfeiture cases.  Second, although Ms. Lord attempted to explain why the state may have been strategic in its conduct, the Justices were disinclined to guess at the meaning of the state’s cryptic position in the trial court.  Third, the Justices did not engage the parties’ briefs about the normative benefits of their respective rules; policy took a back seat.  Fourth, the Justices showed little interest in whether, if the court of appeals had discretion to consider the issue, the it properly exercised or abused that discretion.

Three additional points are worth mentioning.  First, neither Justice Clarence Thomas nor Justice Anthony Kennedy asked a question.  Second, although Justice Sotomayor used the term “power” at times, no Justice fell into a trap about whether the court of appeals had or lacked “jurisdiction” to decide the issue.  Third, Mr. Domenico’s sole citation for the proposition that waiver must be “unequivocal and clear” was College Savings Bank, which elucidated the standard for a state’s waiver of its sovereign immunity.  As I wrote in my preview, the decision in Wood could affect the waivability doctrine of state sovereign immunity.

Recommended Citation: Scott Dodson, Argument recap: Disregarding a state’s litigation decisions on habeas, SCOTUSblog (Feb. 28, 2012, 10:46 AM),