Earlier this week, in Wood v. Milyard (No. 10-9995), the Supreme Court ruled that a federal court of appeals may not reject a habeas petition on the basis of a statute of limitations defense that was previously waived by the state. Wood, a Colorado lifer convicted in 1987, had filed his federal habeas petition in 2008. Under the Antiterrorism and Effective Death Penalty Act, state prisoners have only one year after their convictions become final in which to seek federal habeas relief. In Wood’s case, however, there was some uncertainty as to whether and for how long the SOL had been tolled by state post-conviction proceedings. When specifically invited by the district court to address the SOL issue, the state replied that it would “not challenge, but [is] not conceding, the timeliness of Wood’s [federal] habeas petition.” The district court then denied Wood’s petition on other grounds.
On appeal, the Tenth Circuit raised the timeliness problem sua sponte and ruled against Wood on that basis, without addressing the merits of his petition.
The Supreme Court reversed, holding that the state’s deliberate decision that it would “not challenge” Wood’s timeliness constituted a waiver of the defense, and that the Tenth Circuit abused its discretion by resurrecting the defense over the state’s waiver.
Along the way, the Supreme Court affirmed that appellate courts do have discretion to raise a forfeited SOL defense sua sponte. A forfeited defense is one that is not raised due to neglect, as opposed to deliberate waiver. Forfeiture does not entirely take a defense off the table if the defense is intended to serve broader values beyond the interests of the parties. For instance, the SOL defense helps to conserve judicial resources and promotes finality in litigation. As Justice Thomas pointed out in his concurrence, though, it is hard to see how this consideration supports a distinction between forfeiture and waiver — if there are broader interests at stake that justify resurrecting a forfeited defense, why would they not also justify resurrecting a waived defense?
Left open is the question of whether district courts can raise defenses that have been waived by the state. Would it have been an abuse of discretion, for instance, for the district court to decide the SOL issue in Wood’s case? Much of the Supreme Court’s reasoning in Wood seems to rest on the considerations that are specific to the appellate court:
Due regard for the trial court’s processes and time investment is also a consideration appellate courts should not overlook. It typically takes a district court more 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 merits, and disposes of the case on that ground, the district court’s labor is discounted and the appellate court actsnot as a court of review but as one of first view. (9-10)
The Court’s emphasis on these considerations suggests that the analysis might come out differently if the district court had been the one to raise the defense over the state’s waiver.