The Supreme Court granted certiorari today in Wood v. Milyard (No. 10-9995; opinion below, 403 Fed. Appx. 335 (10th Cir. 2010)), a case presenting two connected questions relating to the one-year statute of limitations for federal habeas petitions. The first question is whether the court of appeals could properly raise the one-year bar sua sponte. The second is whether the state waived the one-year bar when it indicated that it was “not challenging, but  not conced[ing], the timeliness of [the] petition.”
In Wood, the Court returns to an issue that it addressed in Day v. McDonough, 547 U.S. 198 (2006). Day held that courts, in the absence of deliberate waiver by the state, have discretion to consider the statute of limitations. As Justice Scalia noted in dissent, this approach violates the general rule that the Federal Rules of Civil Procedure govern habeas actions. In civil litigation, of course, the defendant must affirmatively assert a statute of limitations defense in order to preserve it. Joined by only Justices Thomas and Breyer — there’s an odd couple! — Scalia was short of a majority in Day. Will he now make a run at Sotomayor and Kagan? They were not part of the Court in 2006, so perhaps Wood will provide an occasion for overturning Day. Even if not, a ruling in favor of Wood would at least put some constraints on the discretion granted by Day.