Day v. McDonough

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DAY v. MCDONOUGH, INTERIM SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 04–1324. Argued February 27, 2006—Decided April 25, 2006

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

sets a one-year limitation period for filing a state prisoner’s federal

habeas corpus petition, running from “the date on which the judg

ment became final by the conclusion of direct review or the expiration

of the time for seeking such review,” 28 U. S. C. §2244(d)(1)(A), but

stops the one-year clock while the petitioner’s “properly filed” appli

cation for state postconviction relief “is pending,” §2244(d)(2). Under

Eleventh Circuit precedent, which is not challenged here, that tolling

period does not include the 90 days in which a petitioner might have

sought certiorari review in this Court challenging state-court denial

of postconviction relief.

Petitioner Day’s Florida trial-court sentence was affirmed on De

cember 21, 1999, and his time to seek this Court’s review of the final

state-court decision expired on March 20, 2000. Day unsuccessfully

sought state postconviction relief 353 days later. The trial court’s

judgment was affirmed on appeal, effective December 3, 2002. Day

petitioned for federal habeas relief 36 days later, on January 8, 2003.

Florida’s answer asserted that the petition was “timely” because it

was filed after 352 days of untolled time. Inspecting the answer and

attachments, however, a Federal Magistrate Judge determined that

the State had miscalculated the tolling time: Under the controlling

Eleventh Circuit precedent, the untolled time was actually 388 days,

rendering the petition untimely. After affording Day an opportunity

to show cause why the petition should not be dismissed for failure to

meet AEDPA’s one-year deadline, the Magistrate Judge found peti

tioner’s responses inadequate and recommended dismissal. The Dis

trict Court adopted the recommendation, and the Eleventh Circuit af

2 DAY v. MCDONOUGH

Syllabus

firmed, concluding that a State’s patently erroneous concession of

timeliness does not compromise a district court’s authority sua sponte

to dismiss a habeas petition as untimely.

Held: In the circumstances here presented, the District Court had dis

cretion to correct the State’s erroneous computation and, accordingly,

to dismiss the habeas petition as untimely under AEDPA’s one-year

limitation. Pp. 2–11.

(a) A statute of limitations defense is not jurisdictional, therefore

courts are under no obligation to raise the matter sua sponte. Cf.

Kontrick v. Ryan, 540 U. S. 443, 458. As a general matter, a defendant

forfeits a statute of limitations defense not asserted in its answer or in

an amendment thereto. See Federal Rules of Civil Procedure 8(c), 12(b),

and 15(a) (made applicable to federal habeas proceedings by Rule 11 of

the Rules governing such proceedings). And the Court would count it

an abuse of discretion to override a State’s deliberate waiver of the limi

tations defense. But, in appropriate circumstances, a district court may

raise a time bar on its own initiative. The District Court in this case

confronted no intelligent waiver on the State’s part, only an evident

miscalculation of time. In this situation the Court declines to adopt ei

ther an inflexible rule requiring dismissal whenever AEDPA’s one-

year clock has run, or, at the opposite extreme, a rule treating the

State’s failure initially to plead the one-year bar as an absolute

waiver. Rather, the Court holds that a district court has discretion to

decide whether the administration of justice is better served by dis

missing the case on statute of limitations grounds or by reaching the

merits of the petition. This resolution aligns the statute of limitations

with other affirmative defenses to habeas petitions, notably exhaustion

of state remedies, procedural default, and nonretroactivity. In Gran-

berry v. Greer, 481 U. S. 129, 133, this Court held that federal appel

late courts have discretion to consider a state prisoner’s failure to ex

haust available state remedies before invoking federal habeas

jurisdiction despite the State’s failure to interpose the exhaustion de

fense at the district-court level. Similarly, in Caspari v. Bohlen, 510

U. S. 383, 389, the Court held that “a federal court may, but need not,

decline to apply [the nonretroactivity rule announced in Teague v.

Lane, 489 U. S. 288, 310,] if the State does not argue it.” It would

make scant sense to distinguish AEDPA’s time bar from these other

threshold constraints on federal habeas petitioners. While a district

court is not required to double-check the State’s math, cf. Pliler v.

Ford, 542 U. S. 225, 231, no Rule, statute, or constitutional provision

commands a judge who detects a clear computation error to suppress

that knowledge. Cf. Fed. Rule Civ. Proc. 60(a). The Court notes par

ticularly that the Magistrate Judge, instead of acting sua sponte,

might have informed the State of its obvious computation error and

Cite as: 547 U. S. ____ (2006) 3

Syllabus

entertained an amendment to the State’s answer. See, e.g., Fed. Rule

Civ. Proc. 15(a). There is no dispositive difference between that

route, and the one taken here. Pp. 2–10.

(b) Before acting sua sponte, a court must accord the parties fair

notice and an opportunity to present their positions. It must also as

sure itself that the petitioner is not significantly prejudiced by the de

layed focus on the limitation issue, and “determine whether the in

terests of justice would be better served” by addressing the merits or

by dismissing the petition as time barred. See Granberry, 481 U. S.,

at 136. Here, the Magistrate Judge gave Day due notice and a fair

opportunity to show why the limitation period should not yield dis

missal. The notice issued some nine months after the State’s answer.

No court proceedings or action occurred in the interim, and nothing

suggests that the State “strategically” withheld the defense or chose

to relinquish it. From all that appears in the record, there was

merely an inadvertent error, a miscalculation that was plain under

Circuit precedent, and no abuse of discretion in following Granberry

and Caspari. P. 11.

391 F. 3d 1192, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, SOUTER, and ALITO, JJ., joined. STEVENS, J., filed

an opinion dissenting from the judgment, in which BREYER, J., joined.

SCALIA, J., filed a dissenting opinion, in which THOMAS and BREYER, JJ.,

joined.

Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1324

_________________

PATRICK DAY, PETITIONER v. JAMES R.

MCDONOUGH, INTERIM SECRETARY,

FLORIDA DEPARTMENT OF

CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 25, 2006]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns the authority of a U. S. District

Court, on its own initiative, to dismiss as untimely a state

prisoner’s petition for a writ of habeas corpus. The Anti

terrorism and Effective Death Penalty Act of 1996

(AEDPA), 110 Stat. 1214, sets a one-year limitation period

for filing such petitions, running from “the date on which

the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such re

view.” 28 U. S. C. §2244(d)(1)(A). The one-year clock is

stopped, however, during the time the petitioner’s “prop

erly filed” application for state postconviction relief “is

pending.” §2244(d)(2). Under Eleventh Circuit precedent,

that tolling period does not include the 90 days in which a

petitioner might have sought certiorari review in this

Court challenging state-court denial of postconviction

relief. Coates v. Byrd, 211 F. 3d 1225, 1227 (2000).

In the case before us, the State’s answer to the federal

habeas petition “agree[d] the petition [was] timely” be

2 DAY v. MCDONOUGH

Opinion of the Court

cause it was “filed after 352 days of untolled time.” App.

24. Inspecting the pleadings and attachments, a Federal

Magistrate Judge determined that the State had miscalcu

lated the tolling time. Under Circuit precedent, the un

tolled time was 388 days, rendering the petition untimely

by some three weeks. After affording the petitioner an

opportunity to show cause why the petition should not be

dismissed for failure to meet the statutory deadline, and

finding petitioner’s responses inadequate, the Magistrate

Judge recommended dismissal of the petition. The Dis

trict Court adopted the Magistrate Judge’s recommenda

tion, and the Court of Appeals affirmed, concluding that

“[a] concession of timeliness by the state that is patently

erroneous does not compromise the authority of a district

court sua sponte to dismiss a habeas petition as untimely,

under AEDPA.” Day v. Crosby, 391 F. 3d 1192, 1195

(CA11 2004).

The question presented is whether a federal court lacks

authority, on its own initiative, to dismiss a habeas peti

tion as untimely, once the State has answered the petition

without contesting its timeliness. Ordinarily in civil

litigation, a statutory time limitation is forfeited if not

raised in a defendant’s answer or in an amendment

thereto. Fed. Rules Civ. Proc. 8(c), 12(b), and 15(a). And

we would count it an abuse of discretion to override a

State’s deliberate waiver of a limitations defense. In this

case, however, the federal court confronted no intelligent

waiver on the State’s part, only an evident miscalculation

of the elapsed time under a statute designed to impose a

tight time constraint on federal habeas petitioners.1 In

——————

1 Until AEDPA took effect in 1996, no statute of limitations applied to

habeas petitions. See Mayle v. Felix, 545 U. S. ___, ___ (2005) (slip op., at

7). Courts invoked the doctrine of “prejudicial delay” to screen out

unreasonably late filings. See generally 2 R. Hertz & J. Liebman,

Federal Habeas Corpus Practice and Procedure §24 (4th ed. 2001). In

AEDPA, Congress prescribed a uniform rule: “A 1-year period of limita

Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

the circumstances here presented, we hold, the federal

court had discretion to correct the State’s error and, ac

cordingly, to dismiss the petition as untimely under

AEDPA’s one-year limitation.

I

Petitioner Patrick A. Day was convicted of second-

degree murder and sentenced to 55 years in prison by a

Florida trial court. Day unsuccessfully appealed the

sentence, which was affirmed on December 21, 1999. Day

did not seek this Court’s review of the final state-court

decision; his time to do so expired on March 20, 2000.

Three hundred and fifty-three (353) days later, Day

unsuccessfully sought state postconviction relief. The

Florida trial court’s judgment denying relief was affirmed

on appeal, and the appellate court issued its mandate on

December 3, 2002. See Nyland v. Moore, 216 F. 3d 1264,

1267 (CA11 2000) (under Florida law, appellate order “is

pending” until the mandate issues). Thirty-six (36) days

thereafter, on January 8, 2003, Day petitioned for federal

habeas relief asserting several claims of ineffective assis

tance of trial counsel. A Magistrate Judge, finding the

petition “in proper form,” App. 21, ordered the State to file

an answer, id., at 21–22. In its responsive pleading, the

State failed to raise AEDPA’s one-year limitation as a

defense. See supra, at 2. Overlooking controlling Elev

enth Circuit precedent, see Coates, 211 F. 3d, at 1227, the

State calculated that the petition had been “filed after 352

days of untolled time,” and was therefore “timely.” App.

24. The State’s answer and attachments, however, re

vealed that, had the State followed the Eleventh Circuit’s

instruction on computation of elapsed time, the timeliness

concession would not have been made: Under the Circuit’s

——————

tion shall apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court.” 28

U. S. C. §2244(d)(1).

4 DAY v. MCDONOUGH

Opinion of the Court

precedent, more than one year, specifically, 388 days of

untolled time, had passed between the finality of Day’s

state-court conviction and the filing of his federal habeas

petition.2

A newly assigned Magistrate Judge noticed the State’s

computation error and ordered Day to show cause why his

federal habeas petition should not be dismissed as un

timely. Id., at 26–30. Determining that Day’s responses

did not overcome the time bar, the Magistrate Judge

recommended dismissal of the petition, App. to Pet. for

Cert. 8a–15a, and the District Court adopted that recom

mendation, id., at 7a.

The Eleventh Circuit granted Day a certificate of ap

pealability on the question “[w]hether the district court

erred in addressing the timeliness of [Day’s] habeas corpus

petition . . . after the [State] had conceded that [the] peti

tion was timely.” App. 37. In a decision rendered two

years earlier, Jackson v. Secretary for Dept. of Corrections,

292 F. 3d 1347 (2002), the Eleventh Circuit had ruled

that, “even though the statute of limitations is an affirma

tive defense, the district court may review sua sponte the

timeliness of [a federal habeas] petition.” Id., at 1349.

Adhering to Jackson, and satisfied that the State’s conces

——————

2 Day

urges this Court to find his petition timely. He asserts that the

Eleventh Circuit misinterpreted §2244(d)(2) in holding that AEDPA’s

time limitation was not tolled during the 90-day period he could have

petitioned this Court to review the denial of his motion for state post-

conviction relief. See Brief for Petitioner 45–50. This question was not

“set out in the petition [for certiorari], or fairly included therein,” and

we therefore do not consider it here. This Court’s Rule 14.1(a). We

note, however, that the Court recently granted certiorari in Lawrence v.

Florida, No. 05–8820 (cert. granted, Mar. 27, 2006), which presents the

question whether AEDPA’s time limitation is tolled during the pend

ency of a petition for certiorari from a judgment denying state postcon

viction relief. The instant opinion, we emphasize, addresses only the

authority of the District Court to raise AEDPA’s time bar, not the

correctness of its decision that the limitation period had run.

Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

sion of timeliness “was patently erroneous,” the Eleventh

Circuit affirmed the dismissal of Day’s petition. 391 F. 3d,

at 1192–1195.3

We granted certiorari sub nom. Day v. Crosby, 545 U. S.

__ (2005), in view of the division among the Circuits on the

question whether a district court may dismiss a federal

habeas petition as untimely under AEDPA, despite the

State’s failure to raise the one-year limitation in its an

swer to the petition or its erroneous concession of the

timeliness issue. Compare, e.g., Long v. Wilson, 393 F. 3d

390, 401–404 (CA3 2004), and 391 F. 3d, at 1194–1195

(case below), with Scott v. Collins, 286 F. 3d 923, 930–931

(CA6 2002), and Nardi v. Stewart, 354 F. 3d 1134, 1141–

1142 (CA9 2004).

II

A statute of limitations defense, the State acknowledges,

is not “jurisdictional,” hence courts are under no obligation

to raise the time bar sua sponte. See, e.g., Acosta v. Artuz,

221 F. 3d 117, 122 (CA2 2000); Hill v. Braxton, 277 F. 3d

701, 705 (CA4 2002); Davis v. Johnson, 158 F. 3d 806, 810

——————

3 Day reads the Eleventh Circuit’s opinion in this case as rendering

mandatory a district court’s sua sponte application of AEDPA’s one-

year limitation, even when the respondent elects to waive the limita

tion and oppose the petition solely on the merits. See Tr. of Oral Arg.

6–8. He points to a sentence in the Eleventh Circuit’s brief per curiam

opinion stating: “A federal court that sits in collateral review of a

criminal judgment of a state court has an obligation to enforce the

federal statute of limitations.” 391 F. 3d, at 1194. We read the Elev

enth Circuit’s summary disposition in line with that court’s description

of its controlling precedent: “We . . . ruled that, ‘even though the statute

of limitations is an affirmative defense, the district court may review

sua sponte the timeliness of [a federal habeas] petition.’ ” Ibid. (refer

ring to Jackson v. Secretary for Dept. of Corrections, 292 F. 3d, at 1349

(emphasis added)); see also 391 F. 3d, at 1195 (State’s “patently errone

ous” concession of timeliness “does not compromise the authority of a

district court sua sponte to dismiss a habeas petition as untimely”

under AEDPA’s one-year limitation (emphasis added)).

6 DAY v. MCDONOUGH

Opinion of the Court

(CA5 1998); cf. Kontrick v. Ryan, 540 U. S. 443, 458 (2004)

(defendant forfeited untimeliness argument “by failing to

raise the issue until after [the] complaint was adjudicated

on the merits”). In this respect, the limitations defense

resembles other threshold barriers—exhaustion of state

remedies, procedural default, nonretroactivity—courts

have typed “nonjurisdictional,” although recognizing that

those defenses “implicat[e] values beyond the concerns of

the parties.” Acosta, 221 F. 3d, at 123 (“The AEDPA

statute of limitation promotes judicial efficiency and con

servation of judicial resources, safeguards the accuracy of

state court judgments by requiring resolution of constitu

tional questions while the record is fresh, and lends final

ity to state court judgments within a reasonable time.”).

On the exhaustion of state remedies doctrine, requiring

state prisoners, before invoking federal habeas jurisdic

tion, to pursue remedies available in state court, Gran-

berry v. Greer, 481 U. S. 129 (1987), is the pathmarking

case. We held in Granberry that federal appellate courts

have discretion to consider the issue of exhaustion despite

the State’s failure to interpose the defense at the district-

court level. Id., at 133.4 Later, in Caspari v. Bohlen, 510

U. S. 383, 389 (1994), we similarly held that “a federal

court may, but need not, decline to apply [the nonretroac

tivity rule announced in Teague v. Lane, 489 U. S. 288,

310 (1989),] if the State does not argue it.” See also Schiro

v. Farley, 510 U. S. 222, 229 (1994) (declining to address

nonretroactivity defense that State raised only in Supreme

Court merits brief, “[a]lthough we undoubtedly have the

discretion to reach” the argument).

While the issue remains open in this Court, see Trest v.

——————

4 In AEDPA, enacted nearly a decade after Granberry, Congress ex

pressly provided that “[a] State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the re

quirement unless the State, through counsel, expressly waives the

requirement.” 28 U. S. C. §2254(b)(3).

Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

Cain, 522 U. S. 87, 90 (1997),5 the Courts of Appeals have

unanimously held that, in appropriate circumstances,

courts, on their own initiative, may raise a petitioner’s

procedural default, i.e., a petitioner’s failure properly to

present an alleged constitutional error in state court, and

the consequent adequacy and independence of state-law

grounds for the state-court judgment. See Brewer v. Mar

shall, 119 F. 3d 993, 999 (CA1 1997); Rosario v. United

States, 164 F. 3d 729, 732 (CA2 1998); Sweger v. Chesney,

294 F. 3d 506, 520 (CA3 2002); Yeatts v. Angelone, 166

F. 3d 255, 261 (CA4 1999); Magouirk v. Phillips, 144 F. 3d

348, 358 (CA5 1998); Sowell v. Bradshaw, 372 F. 3d 821,

830 (CA6 2004); Kurzawa v. Jordan, 146 F. 3d 435, 440

(CA7 1998); King v. Kemna, 266 F. 3d 816, 822 (CA8 2001)

(en banc); Vang v. Nevada, 329 F. 3d 1069, 1073 (CA9

2003); United States v. Wiseman, 297 F. 3d 975, 979 (CA10

2002); Moon v. Head, 285 F. 3d 1301, 1315, n. 17 (CA11

2002).

Petitioner Day relies heavily on Rule 4 of the Rules

Governing Section 2254 Cases in the United States Dis

trict Courts (Habeas Rules), i.e., the procedural Rules

governing federal habeas petitions from state prisoners, in

urging that AEDPA’s limitation may be raised by a federal

court sua sponte only at the preanswer, initial screening

stage. Habeas Rule 4 provides that district courts “must

promptly examine” state prisoner habeas petitions and

must dismiss the petition “[i]f it plainly appears . . . that

the petitioner is not entitled to relief.” Once an answer

has been ordered and filed, Day maintains, the court loses

authority to rule the petition untimely sua sponte.6 At

——————

5 Trest held that a Court of Appeals was not obliged to raise proce

dural default on its own initiative, but declined to decide whether

courts have discretion to do so. 522 U. S., at 89.

6 Were we to accept Day’s position, courts would never (or, at least,

hardly ever) be positioned to raise AEDPA’s time bar sua sponte. As

this Court recognized in Pliler v. Ford, 542 U. S. 225, 232 (2004), infor

8 DAY v. MCDONOUGH

Opinion of the Court

that point, according to Day, the Federal Rules of Civil

Procedure hold sway. See Habeas Rule 11 (“The Federal

Rules of Civil Procedure, to the extent that they are not

inconsistent with any statutory provisions or these rules,

may be applied to a proceeding under these rules.”).7

Under the Civil Procedure Rules, a defendant forfeits a

statute of limitations defense, see Fed. Rule Civ. Proc. 8(c),

not asserted in its answer, see Rule 12(b), or an amend

ment thereto, see Rule 15(a).

The State, on the other hand, points out that the statute

of limitations is akin to other affirmative defenses to

habeas petitions, notably exhaustion of state remedies,

procedural default, and nonretroactivity. Indeed, the

statute of limitations is explicitly aligned with those other

defenses under the current version of Habeas Rule 5(b),

which provides that the State’s answer to a habeas peti

tion “must state whether any claim in the petition is

barred by a failure to exhaust state remedies, a procedural

bar, non-retroactivity, or a statute of limitations.” The

considerations of comity, finality, and the expeditious

handling of habeas proceedings that motivated AEDPA,8

the State maintains, counsel against an excessively rigid

or formal approach to the affirmative defenses now listed

in Habeas Rule 5. Citing Granberry, 481 U. S., at 131–

134, as the instructive case, the State urges express rec

ognition of an “intermediate approach.” Brief for Respon

——————

mation essential to the time calculation is often absent—as it was in this

case—until the State has filed, along with its answer, copies of documents

from the state-court proceedings.

7 The Habeas Rules were amended after the proceedings below. We

cite the current version because both parties agree that the amend

ments to Rules 4 and 11, effective December 1, 2004, wrought no

relevant substantive change.

8 See Rhines v. Weber, 544 U. S. 269, 276 (2005) (AEDPA’s time bar

“quite plainly serves the well-recognized interest in the finality of state

court judgments”; it “reduces the potential for delay on the road to final

ity[.]” (quoting Duncan v. Walker, 533 U. S. 167, 179 (2001))).

Cite as: 547 U. S. ____ (2006) 9

Opinion of the Court

dent 14 (internal quotation marks omitted); see also id., at

25. In lieu of an inflexible rule requiring dismissal when

ever AEDPA’s one-year clock has run, or, at the opposite

extreme, a rule treating the State’s failure initially to

plead the one-year bar as an absolute waiver, the State

reads the statutes, Rules, and decisions in point to permit

the “exercise [of] discretion in each case to decide whether

the administration of justice is better served by dismissing

the case on statute of limitations grounds or by reaching

the merits of the petition.” Id., at 14. Employing that

“intermediate approach” in this particular case, the State

argues, the petition should not be deemed timely simply

because a government attorney calculated the days in

between petitions incorrectly.

We agree, noting particularly that the Magistrate

Judge, instead of acting sua sponte, might have informed

the State of its obvious computation error and entertained

an amendment to the State’s answer. See Fed. Rule Civ.

Proc. 15(a) (leave to amend “shall be freely given when

justice so requires”); see also 28 U. S. C. §2243 (State’s

response to habeas petition may be amended by leave of

court); cf. Long, 393 F. 3d, at 402–404 (District Court

raised the statute of limitations sua sponte, the State

agreed with that disposition, and the Court of Appeals

treated that agreement as a constructive amendment to

the State’s answer). Recognizing that an amendment to

the State’s answer might have obviated this controversy,9

we see no dispositive difference between that route, and

the one taken here. See Brief for Respondent 24 (“Here,

the State did not respond to the show cause order because

its concession of timeliness was based on an erroneous

calculation and it agreed the petition should be dismissed

as untimely.”); cf. Slack v. McDaniel, 529 U. S. 473, 487

——————

9 The Court is unanimous on this point. See post, at 5, n. 2 (SCALIA,

J., dissenting).

10 DAY v. MCDONOUGH

Opinion of the Court

(2000) (admonishing against interpretation of procedural

prescriptions in federal habeas cases to “trap the unwary

pro se prisoner” (quoting Rose v. Lundy, 455 U. S. 509, 520

(1982))).

In sum, we hold that district courts are permitted, but

not obliged, to consider, sua sponte, the timeliness of a

state prisoner’s habeas petition. We so hold, noting that it

would make scant sense to distinguish in this regard

AEDPA’s time bar from other threshold constraints on

federal habeas petitioners. See supra, at 6–7; Habeas

Rule 5(b) (placing “a statute of limitations” defense on a

par with “failure to exhaust state remedies, a procedural

bar, [and] non-retroactivity”); Long, 393 F. 3d, at 404

(“AEDPA’s statute of limitations advances the same con

cerns as those advanced by the doctrines of exhaustion

and procedural default, and must be treated the same.”).

We stress that a district court is not required to double-

check the State’s math. If, as this Court has held,

“[d]istrict judges have no obligation to act as counsel or

paralegal to pro se litigants,” Pliler v. Ford, 542 U. S. 225,

231 (2004),10 then, by the same token, they surely have no

obligation to assist attorneys representing the State.

Nevertheless, if a judge does detect a clear computation

error, no Rule, statute, or constitutional provision com

mands the judge to suppress that knowledge. Cf. Fed.

Rule Civ. Proc. 60(a) (clerical errors in the record “arising

from oversight or omission may be corrected by the court

——————

10 The procedural hindrance in Pliler was the petitioner’s failure to

exhaust state remedies. The Court in that case declined to rule on the

propriety of the stay-and-abeyance procedure that would enable a

habeas petitioner to remain in federal court while exhausting unex

hausted claims in state court. 542 U. S., at 231. In a later decision,

Rhines, 544 U. S., at 278–279, this Court held that a district court has

discretion to stay a mixed petition (i.e., one that includes both ex

hausted and unexhausted claims) to allow a habeas petitioner to

present his unexhausted claims to the state court in the first instance,

then return to federal court for review of his perfected petition.

Cite as: 547 U. S. ____ (2006) 11

Opinion of the Court

at any time of its own initiative or on the motion of any

party”).

Of course, before acting on its own initiative, a court

must accord the parties fair notice and an opportunity to

present their positions. See, e.g., Acosta, 221 F. 3d, at

124–125; McMillan v. Jarvis, 332 F. 3d 244, 250 (CA4

2003). Further, the court must assure itself that the

petitioner is not significantly prejudiced by the delayed

focus on the limitation issue, and “determine whether the

interests of justice would be better served” by addressing

the merits or by dismissing the petition as time barred.

See Granberry, 481 U. S., at 136.11 Here, the Magistrate

Judge gave Day due notice and a fair opportunity to show

why the limitation period should not yield dismissal of the

petition. The notice issued some nine months after the

State answered the petition. No court proceedings or

action occurred in the interim, and nothing in the record

suggests that the State “strategically” withheld the de

fense or chose to relinquish it. From all that appears in

the record, there was merely an inadvertent error, a mis

calculation that was plain under Circuit precedent, and no

abuse of discretion in following this Court’s lead in Gran-

berry and Caspari, described supra, at 6–7.

* * *

For the reasons stated, the judgment of the Court of

Appeals is

Affirmed.

——————

11 Adistrict court’s discretion is confined within these limits. As ear

lier noted, should a State intelligently choose to waive a statute of

limitations defense, a district court would not be at liberty to disregard

that choice. See supra, at 2. But see post, at 7 (SCALIA, J., dissenting).

Cite as: 547 U. S. ____ (2006) 1

STEVENS, J., dissenting from judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1324

_________________

PATRICK DAY, PETITIONER v. JAMES R.

MCDONOUGH, INTERIM SECRETARY,

FLORIDA DEPARTMENT OF

CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 25, 2006]

JUSTICE STEVENS, with whom JUSTICE BREYER joins,

dissenting from the judgment.

Although JUSTICE BREYER and I disagree on the proper

answer to the question on which we granted certiorari—in

my view, JUSTICE GINSBURG’s opinion for the Court cor

rectly decides that question, while JUSTICE BREYER has

joined JUSTICE SCALIA’s dissenting opinion—we agree on

the proper disposition of this case. In our view, the Court

should announce its opinion now, but it should postpone

the entry of judgment pending our decision in Lawrence v.

Florida, No. 05–8820 (cert. granted, Mar. 27, 2006). As

JUSTICE GINSBURG notes, the question whether the Court

of Appeals correctly concluded that Day’s habeas corpus

petition was barred by the statute of limitations will be

answered by our decision in Lawrence. See ante, at 4, n. 2.

It seems improvident to affirm a possibly erroneous Court

of Appeals judgment that dismissed Day’s habeas petition

without an evaluation of its merits when we have already

granted certiorari to address the issue on which the Court

of Appeals may have erred. Of course, the Court of Ap

peals may avoid a miscarriage of justice by keeping this

case on its docket until after we decide Lawrence, but it

would be better practice for us to do so ourselves. Accord

2 DAY v. MCDONOUGH

STEVENS, J., dissenting from judgment

ingly, we respectfully dissent from the entry of the Court’s

judgment at this time.

Cite as: 547 U. S. ____ (2006) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1324

_________________

PATRICK DAY, PETITIONER v. JAMES R.

MCDONOUGH, INTERIM SECRETARY,

FLORIDA DEPARTMENT OF

CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 25, 2006]

JUSTICE SCALIA, with whom JUSTICE THOMAS and

JUSTICE BREYER join, dissenting.

The Court today disregards the Federal Rules of Civil

Procedure (Civil Rules) in habeas corpus cases, chiefly

because it believes that this departure will make no differ

ence. See ante, at 9. Even if that were true, which it is

not, I could not join this novel presumption against apply

ing the Civil Rules.

The Civil Rules “govern the procedure in the United

States district courts in all suits of a civil nature.” Rule 1.

This includes “proceedings for . . . habeas corpus,” Rule

81(a)(2), but only “to the extent that the practice in such

proceedings is not set forth in statutes of the United

States [or] the Rules Governing Section 2254 Cases [Ha

beas Rules],” Civil Rule 81(a)(2); see also Habeas Rule 11.

Thus, “[t]he Federal Rules of Civil Procedure apply in the

context of habeas suits to the extent that they are not

inconsistent with the Habeas Corpus Rules,” Woodford v.

Garceau, 538 U. S. 202, 208 (2003), and do not contradict

or undermine the provisions of the habeas corpus statute,

Gonzalez v. Crosby, 545 U. S. ___, ___ (2005) (slip op., at

4–5).

As the Court notes, the Civil Rules adopt the traditional

2 DAY v. MCDONOUGH

SCALIA, J., dissenting

forfeiture rule for unpleaded limitations defenses. See

ante, at 8 (citing Rules 8(c), 12(b), 15(a)). The Court does

not identify any “inconsisten[cy]” between this forfeiture

rule and the statute, Rules, or historical practice of habeas

proceedings—because there is none. Forfeiture of the

limitations defense is demonstrably not inconsistent with

traditional habeas practice, because, as the Court ac

knowledges, habeas practice included no statute of limita

tions until 1996. Ante, at 2, n. 1; see also infra, at 3–5.

Forfeiture is perfectly consistent with Habeas Rule 5(b),

which now provides that the State’s “answer . . . must

state whether any claim in the petition is barred by . . .

statute of limitations.” (Emphasis added.) And forfeiture

is also consistent with (and indeed, arguably suggested by)

Habeas Rule 4, because Rule 4 provides for sua sponte

screening and dismissal of habeas petitions only prior to

the filing of the State’s responsive pleading.1

Most importantly, applying the forfeiture rule to the

limitations period of 28 U. S. C. §2244(d) does not contra

dict or undermine any provision of the habeas statute.

Quite the contrary, on its most natural reading, the stat

ute calls for the forfeiture rule. AEDPA expressly enacted,

without further qualification, “[a] 1-year period of limita

tion” for habeas applications by persons in custody pursu

ant to the judgments of state courts. §2244(d)(1) (empha

sis added). We have repeatedly stated that the enactment

of time-limitation periods such as that in §2244(d), with

out further elaboration, produces defenses that are non

——————

1 The

Court observes that “[w]ere we to accept Day’s position, courts

would never (or, at least, hardly ever) be positioned to raise AEDPA’s

[Antiterrorism and Effective Death Penalty Act of 1996] time bar

sua sponte,” because “information essential to the time calculation is

often absent” at the Rule 4 prescreening stage, ante, at 7–8, n. 6. But to

be distressed at this phenomenon is to beg the question—that is, to

assume that courts ought to “be positioned to raise AEDPA’s time bar

sua sponte.” That is precisely the question before us.

Cite as: 547 U. S. ____ (2006) 3

SCALIA, J., dissenting

jurisdictional and thus subject to waiver and forfeiture.

See Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393

(1982); see also Eberhart v. United States, 546 U. S. ___,

___ (2005) (per curiam) (slip op., at 3); Kontrick v. Ryan,

540 U. S. 443, 447 (2004). Absent some affirmative in

compatibility with habeas practice, there is no reason why

a habeas limitations period should be any different. By

imposing an unqualified “period of limitation” against the

background understanding that a defense of “limita-

tions” must be raised in the answer, see Civil Rules 8(c),

12(b), the statute implies that the usual forfeiture rule is

applicable.

Instead of identifying an inconsistency between habeas

corpus practice and the usual civil forfeiture rule, the

Court urges that “it would make scant sense to distinguish

in this regard AEDPA’s time bar from other threshold

constraints on federal habeas petitioners” that may be

raised sua sponte—ante, at 10—namely, exhaustion of

state remedies, procedural default, nonretroactivity, and

(prior to AEDPA) abuse of the writ. See Granberry v.

Greer, 481 U. S. 129, 133 (1987) (exhaustion); Caspari v.

Bohlen, 510 U. S. 383, 389 (1994) (nonretroactivity). But

unlike AEDPA’s statute of limitations, these defenses

were all created by the habeas courts themselves, in the

exercise of their traditional equitable discretion, see

Withrow v. Williams, 507 U. S. 680, 717–718 (1993)

(SCALIA, J., concurring in part and dissenting in part),

because they were seen as necessary to protect the inter

ests of comity and finality that federal collateral review of

state criminal proceedings necessarily implicates. See

McCleskey v. Zant, 499 U. S. 467, 489–491 (1991) (abuse of

the writ); Wainwright v. Sykes, 433 U. S. 72, 80–81 (1977)

(procedural default); Teague v. Lane, 489 U. S. 288, 308

(1989) (nonretroactivity); Rose v. Lundy, 455 U. S. 509,

515 (1982) (exhaustion of state remedies). Unlike these

other defenses, no time limitation—not even equitable

4 DAY v. MCDONOUGH

SCALIA, J., dissenting

laches—was imposed to vindicate comity and finality.

AEDPA’s 1-year limitations period is entirely a recent

creature of statute. See ante, at 2, n. 1. If comity and

finality did not compel any time limitation at all, it follows

a fortiori that they do not compel making a legislatively

created, forfeitable time limitation nonforfeitable.

In fact, prior to the enactment of AEDPA, we affirma

tively rejected the notion that habeas courts’ traditionally

broad discretionary powers would support their imposition

of a time bar. Historically, “there [wa]s no statute of

limitations governing federal habeas, and the only laches

recognized [wa]s that which affects the State’s ability to

defend against the claims raised on habeas”—which was

imposed by Rule, and not until 1977. Brecht v. Abraham-

son, 507 U. S. 619, 637 (1993); see also United States v.

Smith, 331 U. S. 469, 475 (1947); 17A C. Wright, A. Miller,

& E. Cooper, Federal Practice and Procedure §4268.2,

p. 497–498 (2d ed. 1988) (hereinafter Wright & Miller).

We repeatedly asserted that the passage of time alone

could not extinguish the habeas corpus rights of a person

subject to unconstitutional incarceration. See Pennsyl

vania ex rel. Herman v. Claudy, 350 U. S. 116, 123 (1956);

Chessman v. Teets, 354 U. S. 156, 164–165 (1957). For

better or for worse, this doctrine was so well entrenched

that the lower courts regularly entertained petitions filed

after even extraordinary delays. See, e.g., Hawkins v.

Bennett, 423 F. 2d 948, 949 (CA8 1970) (40 years); Hamil

ton v. Watkins, 436 F. 2d 1323, 1325 (CA5 1970) (at least

36 years); Hannon v. Maschner, 845 F. 2d 1553, 1553–

1555 (CA10 1988) (at least 24 years). And in 1977, when

enactment of the former Habeas Rule 9(a) “introduce[d]

for the first time an element of laches into habeas corpus,”

17A Wright & Miller §4268.2, at 498—by adopting the

rule against “ ‘prejudicial delay’ ” to which the Court refers,

ante, at 2, n. 1—even that limited doctrine was treated as

subject to the very same pleading requirements and forfei

Cite as: 547 U. S. ____ (2006) 5

SCALIA, J., dissenting

ture rule that the Court rejects today for the stricter limi

tations period of §2244(d). See Smith v. Secretary of New

Mexico Dept. of Corrections, 50 F. 3d 801, 821–822, n. 30

(CA10 1995); see also McDonnell v. Estelle, 666 F. 2d 246,

249 (CA5 1982).

There is, therefore, no support for the notion that the

traditional equitable discretion that governed habeas

proceedings permitted the dismissal of habeas petitions on

the sole ground of untimeliness. Whether or not it should

have, see Collins v. Byrd, 510 U. S. 1185, 1186–1187

(1994) (SCALIA, J., dissenting), it did not. The Court’s

reliance on pre-existing equitable doctrines like procedural

default and nonretroactivity is, therefore, utterly mis

placed. Nothing in our tradition of refusing to dismiss

habeas petitions as untimely justifies the Court’s decision

to beef up the presumptively forfeitable “limitations pe

riod” of §2244(d) by making it the subject of sua sponte

dismissal.

In what appears to be the chief ground of its decision,

the Court also observes that “the Magistrate Judge, in

stead of acting sua sponte, might have informed the State

of its obvious computation error and entertained an

amendment to the State’s answer” under Civil Rule 15(a).

Ante, at 9. “Although an amendment to the State’s answer

might have obviated this controversy,” the Court concedes,

“we see no dispositive difference between that route, and

the one taken here.” Ibid. But this consideration cuts in

the opposite direction. If there truly were no “dispositive

difference” between following and disregarding the rules

that Congress has enacted, the natural conclusion would

be that there is no compelling reason to disregard the Civil

Rules.2 Legislatively enacted rules are surely entitled to

——————

2 I agree with the Court that today’s decision will have little impact

on the outcome of district court proceedings. In particular, I agree that

“if a [district] judge does detect a clear computation error, no Rule,

6 DAY v. MCDONOUGH

SCALIA, J., dissenting

more respect than this apparent presumption that, when

nothing substantial hangs on the point, they do not apply

as written. And, unlike the novel regime that the Court

adopts today, which will apparently require the develop

ment of new rules from scratch, there already exists a

well-developed body of law to govern the district courts’

exercise of discretion under Rule 15(a). See 6 Wright &

Miller §§1484–1488 (2d ed. 1990 and Supp. 2005). Ock

ham is offended by today’s decision, even if no one else is.

But, in fact, there are at least two notable differences

between the Civil Rules and the sua sponte regime of such

cases as Granberry and Caspari—both of which involve

sufficiently significant departures from ordinary civil

practice as to require clear authorization from the statute,

the Rules, or historical habeas practice. First, the Gran-

berry regime allows the forfeited procedural defense to be

raised for the first time on appeal, either by the State or

by the appellate court sua sponte. See 481 U. S., at 130,

133; Schiro v. Farley, 510 U. S. 222, 228–229 (1994).

Ordinary civil practice does not allow a forfeited affirma

tive defense whose underlying facts were not developed

below to be raised for the first time on appeal. See

Weinberger v. Salfi, 422 U. S. 749, 764 (1975); Metropoli

tan Housing Development Corp. v. Arlington Heights, 558

F. 2d 1283, 1287 (CA7 1977). The ability to raise even

——————

statute, or constitutional provision commands the judge to suppress

that knowledge,” ante, at 10. Rather, a judge may call the timeliness

issue to the State’s attention and invite a motion to amend the plead

ings under Civil Rule 15(a), under which “leave shall be freely given

when justice so requires.” In fact, in providing for leave whenever

“justice so requires,” Rule 15(a), the Civil Rules fully accommodate the

comity and finality interests that the Court thinks require a departure

from the Civil Rules, see ante, at 6–7, 10. Requiring the State to take

the affirmative step of amending its own pleading at least observes the

formalities of our adversary system, which is a nontrivial value in

itself. See United States v. Burke, 504 U. S. 229, 246 (1992) (SCALIA, J.,

concurring in judgment).

Cite as: 547 U. S. ____ (2006) 7

SCALIA, J., dissenting

constitutional errors in criminal trials for the first time on

appeal is narrowly circumscribed. See Fed. Rule Crim.

Proc. 52(b); United States v. Olano, 507 U. S. 725, 732

(1993). Comity and finality justified this departure from

ordinary practice for historically rooted equitable defenses

such as exhaustion. See Granberry, supra, at 134. But

limitations was not such a defense.

Also, Granberry and the like raise the possibility that

the courts can impose a procedural defense over the

State’s affirmative decision to waive that defense. The

Court takes care to point out that this is not such a case,

ante, at 11, but it invites such cases in the future. After all,

the principal justification for allowing such defenses to be

raised sua sponte is that they “ ‘implicat[e] values beyond

the concerns of the parties,’ ” including “ ‘judicial efficiency

and conservation of judicial resources’ ” and “the expedi

tious handling of habeas proceedings.” Ante, at 6, 8 (quot

ing Acosta v. Artuz, 221 F. 3d 117, 123 (CA2 2000)). There

are many reasons why the State may wish to disregard

the statute of limitations, including the simple belief that

it would be unfair to impose the limitations defense on a

particular defendant. On the Court’s reasoning, a district

court would not abuse its discretion in overriding the

State’s conscious waiver of the defense in order to protect

such “ ‘values beyond the concerns of the parties,’ ” ante, at

6.3 Under the Civil Rules, by contrast, amending a party’s

——————

3 In order to avoid this seemingly unavoidable conclusion, the Court

asserts, without relevant citation or reasoning, that “should a State

intelligently choose to waive a statute of limitations defense, a district

court would not be at liberty to disregard that choice.” Ante, at 11,

n. 11. This assertion is contrary to our statement in Granberry v.

Greer, 481 U. S. 129, 134 (1987)—a case which, on the Court’s view, it

makes “scant sense to distinguish,” ante, at 10—that an appellate court

may dismiss an unexhausted petition sua sponte in “cases in which the

State fails, whether inadvertently or otherwise, to raise an arguably

meritorious nonexhaustion defense.” (Emphasis added.) To support its

assertion, the Court cites nothing but its own earlier statement: “Ordi

8 DAY v. MCDONOUGH

SCALIA, J., dissenting

pleading over his objection would constitute a clear abuse

of the trial court’s discretion.

In sum, applying the ordinary rule of forfeiture to the

AEDPA statute of limitations creates no inconsistency

with the Habeas Rules. On the contrary, it is the Court’s

unwarranted expansion of the timeliness rule enacted by

Congress that is inconsistent with the statute, the Habeas

Rules, the Civil Rules, and traditional practice. I would

hold that the ordinary forfeiture rule, as codified in the

Civil Rules, applies to the limitations period of §2244(d). I

respectfully dissent.

——————

narily in civil litigation, a statutory time limit is forfeited if not raised

in a defendant’s answer or in an amendment thereto. Fed. Rules Civ.

Proc. 8(c), 12(b), and 15(a). And we would count it an abuse of discre

tion to override a State’s deliberate waiver of a limitations defense.”

Ante, at 2. But as the statement itself shows, the “ordinary” inability to

override the State’s “intelligent” waiver is coupled with an “ordinary”

automatic forfeit of the defense if it is not timely raised. The Court

does not say why it makes sense, for the statute of limitation of

§2244(d)(1)(A), to reject (as it does) the first part of the ordinary prac

tice (automatic forfeiture), while embracing the second (inability to

override intelligent waiver). The reason for rejecting the first part

surely applies just as well to the second: Section 2244(d)(1)(A) suppos

edly “‘implicate[s] values beyond the concerns of the parties,’” including

“‘judicial efficiency,’” “‘conservation of judicial resources’” and “expedi

tious handling of habeas proceedings.” Ante, at 6, 8.