Respondents Brief — Day v. McDonough

(2 JAN 17 2006

No. 04-1324 eee

3n The

Supreme Court of the Hnited States

@dtober Term, 2005

PATRICK A. DAY,

Petitioner,

v.

JAMES V. CROSBY, JR., Secretary,

Florida Department of Corrections,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF ON THE MERITS

CHARLES J. CRIST, JR. CHRISTOPHER M. KISE

Attorney General of Florida Solicitor General of Florida

Counsel of Record

ERIK M. FIGLIO

Deputy Solicitor General LYNN C. HEARN

Deputy Solicitor General

CASSANDRA K. DOLGI?.

Assistant Attorney General Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399

Tel: (850) 414-3681

Fax: (850) 410-2672

QUESTION PRESENTED

(COMBINED AND RESTATED)

Whether a district court has discretion to dismiss a habeas

petition as untimely despite a State’s waiver, inadvertent or

otherwise, if the district court gives the parties notice and an

opportunity to be heard and considers whether a sua sponte

dismissal would prejudice the petitioner?

TABLE OF CONTENTS

Oe Fr ivcristinttnivitinilibiiiiccasrinijiicieiineiinsil iil

RSA A EEET S SIE BUNIED SG AIUIIED sitendemctennincitsctscteneecvsninssasenssiiianies |

I GHer Se IIIT ccccncccscmastinsciningahpniceuisinaraaneamnnaiey 3

ETE cacicey sntsenitisiasiininiecbeidadaiuisininbisliassactansaaedeinatosiicndabiile 5

I. A DISTRICT COURT HAS DISCRETION TO RAISE

THE LIMITATIONS DEFENSE SUA SPONTE.................. 5

A. Habeas proceedings implicate interests beyond

ey i aiccrttencsinnscssincstitcinicetibienteninesagineats 5

B. Federal courts have discretion to raise

procedural bars to habeas relief sua sponte.............8

C. The limitations defense should be treated like

other procedural bars to habeas relief.................... 14

Il. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION BY RAISING THE LIMITATIONS

Ascent ictciencieecinedilhcatatnaiadippcentehaiacetnptaiicenactnereies 21

A. Respondent’s waiver, inadvertent or otherwise,

i icnciininhcinticistineniinhasitesiiiibinininsintiaimaginapintaiaind 21

B. Day had notice and an opportunity to be heard ..... 23

C. Day is not prejudiced by the dismissal .................. 24

D. Day’s petition was untimely ....................0::ececeeeeee 27

IID cicscedticiininstsisidicicsmisilitixinscisaschiiaioensinteladeniaadigintete 33

i

TABLE OF AUTHORITIES

FEDERAL CASES

Abela v. Martin, 348 F.3d 164 (6th Cir. 2003), cert.

re SR ea nO ICE 31

Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000)............... 5, 15, 23

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999)..........28

Bell v. Thompson, 125 S. Ct. 2825 (2005) ..........:cecceccceeceeeeeeees 6

Brecht v. Abrahamson, 507 U.S. 619 (1993) ....:.....cccceeeeeeees 5, 6

Calderon v. Thompson, 523 U.S. 538 (1998)............. 5, 6, 7, 20

Carey v. Saffold, 536 U.S. 214 (2002) ............ccccccceeeees 4, 30, 31

Caspari v. Bohlen, 510 U.S. 383 (1994) ............00. 8, 12, 19, 20

City of Sherrill v. Oneida Indian Nation, 125 S. Ct.

SERENA TERESA STE a 7 ER OOD OPP 28

Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000), cert.

SEE, IPO Ws Be i ertcttiticinitccerscccensccttnterncanent 32

Crawley v. Catoe, 257 F.3d 395 ‘4th Cir. 2001), cert.

denied, 534 U.S. 1080 (2002)..............ccceccecseserseeeeeeees 30, 32

David v. Hall, 318 F.3d 343 (1st Cir.), cert. denied,

aT iticincextetveniicdattiichasntp cuitmmiintadanibiiidiaityisi 31

Davis v. Campbell, 608 F.2d 317 (8th Cir. 1979) .......00......... 22

Day v. Crosby, 126 S. Ct. 34 (2005) ........:ccccccececesseeseeessseeeseeees 2

ill

Day v. Crosby, 391 F.3d 1192 (11th Cir. 2004).......00 2, 22, 26

Dretke v. Haley, 541 U.S. 386 (2004) .......cccccecesseeeseeeeneeees 10

Duncan v. Walker, 533 U.S. 167 (2001) .0.....:cccscccereeeneee passim

Engle v. Isaac, 456 U.S. 107 (1982) ..sessesssesnssseee 5,6, 10, 17

Esslinger v. Davis, 44 F.3d 1515 (11th Cir. 1995)........... 11, 26

Foman v. Davis, 371 U.S. 178 (1962).....ccccccseseseerserseeseeeeees 24

FW/PBS, Inc. v. City of Dallas, 493 U.S. 214 (1990)............ 29

Federal Trade Comm'n v. Grolier Inc., 462 U.S. 19

CRG D) cnccrcesenisecttinestasertinceseivithcsialiamsidéianmgaaainania 29

Femia v. United States, 47 F.3d 519 (2d Cir. 1995)......... 13, 20

Graham v. Johnson, 94 F.3d 958 (Sth Cir. 1996) 2.0.0.0... 10

Granberry v. Greer, 481 U.S. 129 (1987)........cccccsceeeeeee passim

Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000),

cert. denied, 532 U.S. 950 (2001) ........cccscsceseeseseerseeeevenens 32

Hagen v. Utah, 510 U.S. 399 (1994)... ccceccsersseeeseneneneennnny 28

Hardiman vy. Reynolds, 971 F.2d 500 (10th Cir. 1992).......... 11

Ex parte Hawk, 321 U.S. 114 (1944) 0.0.0... cccceseeees nenenennnennennns 9

Henderson v. Thieret, 859 F.2d 492 (7th Cir. 1988),

cert. denied, 490 U.S. 1009 (1989) ............cccceeeenneees 21,24

Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001)..........cccccceoe 16

lV

Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002).................. 15, 16

Hern v. Dams, S96 US. 266 (2002) ccceesccencnsneomemesrenene 18

Housel v. Head, 238 F.3d 1289 (11th Cir. 2001), cert.

denied, 534 U.S. 1172 (2002)q..c.c..sssssccsecccsscvecssseseseseseese 12

Izumi Seimitsu Kogyo Kebushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27 (1993)..........c.ccevsssv0vessssssee0see 28

Jones v. Estelle, 692 F.2d 380 (Sth Cir. 1982)... 13

King v. Kemna, 266 F.3d 816 (8th Cir. 2001), cert.

denied, 535 U.S. 934 (2002)..cccccvvvvee-sssssseeseseeevevevseeseevesee ul

Lambrix v. Singletary, 520 U.S. $18 (1997) occ... 8, 28

Lewis v. Johnson, 359 F.3d 646 (3d Cir. 2004).........c..c.c0000 12

Link v. Wabash Railroad Co., 370 U.S. 626 (1962)......... 18, 19

Long v. Wilson, 393 F.3d 390 (3d Cir. 2004) ......cccccccssss000 8,15

Mackey v. United States, 401 U.S. 667 (1971) ...c.cs.sss.vv00000 12

Magouirk v. Phillips, 144 F.3d 348 (Sth Cir. 1998).........11, 21

Mayle v. Felix, 125 S. Ct. 2562 (2005) ..ccccccccccssvvssssssssessseeeeeee 7

McCleskey v. Zant, 499 U.S. 467 (1991) ..cccccccccccsswsseeev0e passim

MeMillan v. Jarvis, 332 F.3d 244 (4th Cir. 2003)...» 23

Nardi v. Stewart, 354 F.3d 1134 (9th Cir. 2004) oo... 9

Oakes v. United States, 400 F.3d 92 (1st Cir. 2005) ............. 11

Vv

Oklahoma Tax Comm'n v. Chickasaw Nation, 515

a aiabanee, 28

Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994), cert.

denied, 513 U.S. 1085 (1995)........cccescsssvesesvecsssvucesneeeeeen 23

Ott v. Johnson, 192 F.3d 510 (Sth Cir. 1999), cert

denied, 592 U.S. 1099 (2000)...........ccscssseessseesssesesseeceseeee 32

Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999), cert.

denied, 528 U.S. 1084 (2000).........cccscscessscsesenvesseneeen 30, 32

Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002),

cert. denied, 540 U.S. 826 (2003) ....cccccccccvecssssessesveesevees 5,8

Schiro v. Farley, 510 U.S. 222 (1994) ....ccccccccvessvessssseesseesesees 28

Scott v. Collins, 286 F.3d 923 (6th Cir. 2002) ............ 9, 16, 19

Smaidone v. Senkowski, 273 F.3d 133 (2d Cir. 2001),

cert. denied, 535 U.S. 1017 (2002) ........ccccccesecveeeseseesevees 32

Smith v. Horn, 120 F.3d 400 (3d Cir. 1997), cert.

denied, 522 U.S. 1009 (1998).........cccccccccesssecesssesseseeersecen 10

Smith v. Murray, 477 U.S. 527 (1986) ............cccccceccececneeeeneenee 5

Snow v, Ault, 238 F.3d 1033 (8th Cir.), cert. denied,

SEND IN aii atid ble sieacietensistaesidichinisias 32

Sockwell v. Maggio, 709 F.2d 341 (Sth Cir, 1983) ............. 13

Sowell v. Bradshaw, 372 F.3d 821 (6th Cir. 2004),

cert. denied, 125 S. Ct. 1645 (2005) ...........ccccccccseeeeeeeees 11

Stokes v. District Attorney, 247 F.3d 539 (3d Cir.),

cert, denied, 534 U.S. 959 (2001) -......cccccsevvvvve:ssvsseseree 32

Strader v. Allsbrook, 656 F.2d 67 (4th Cir. 1981)........0.00... 22

Sweger v. Chesney, 294 F.3d 506 (3d Cir. 2002), cert

denied, 538 U.S. 1002 (2003) ...........csccsceessssessssssvessevsee 11

Teague v. Lane, 489 U.S. 288 (1989) ....cceccccccvccvsseesesee 6, 12, 17

Thigpen v. Smith, 792 F.2d 1507 (11th Cir. 1986)...............- 13

Trest v. Cain, 522 U.S. 87 (1997) .ccccccccccccessssssssesssseseesvee 10, 19

United States v. Bendolph, 409 F.3d 155 (3d Cir.

2005), petition for cert. filed, (U.S. June 24, 2005)

I ee trccncencsentinsncsictintentiscniteedicnnticinioabineeanadinndlbe passim

United States, ex rel Kennedy v. Tyler, 269 U.S. 13

ED eihicigernitivisicensinsiacnetinemniajucencitepitiaiiddatimintatatiiesinasdmaas 9

Vang v. Nevada, 329 F.3d 1069 (9th Cir. 2003) .................... 11

Wainwright v. Sykes, 433 U.S. 72 (1977)................ SI Fa 10

Washington v. James, 996 F.2d 1442 (2d Cir. 1993),

cert. denied, 510 U.S. 1078 (1994) .....-.--ccccsssssssssseen 11, 22

Washington v. Lane, 840 F.2d 443 (7th Cir.), cert.

CE, SS GE. TS CI ceccisesncsttitseeenmenennnn 11

Webster v. Woodford, 361 F.3d 522 (9th Cir.),

cert. denied sub nom. Webster v. Brown,

ee iciicticstahinaiiticitmninteinnenttiin nies 12

White v. Klitzkie, 281 F.3d 920 (9th Cir. 2002)...................... 32

vu

Willams v. Taylor, 529 U.S. 420 (2000) ..ccecccsesecsscsvseseeeessessee SS

Woodford v. Garceau, 538 U.S. 202 (2003) ..........eceee--eeseeseee Be

Yeatts v. Angelone, 166 F.3d 255 (4th Cir.), cert.

denied, 526 U.S. 1095 (1999)...cccc.cseceeeen 11, 15, 21, 24

Yee v. Escondido, 503 U.S. 519 (1992) ..eceeccsoccecsseseesenssee 28

FEDERAL STATUTES

Cn LES DE as ce Ae Tee Oe ne 13

en REIMER Fe BF Dia IR 13

i i ni ee ee

Te TELE AD mea od 14, 31

2B U.S.C. § ZAMAN) ccceceencncnevevnnccneccevenceeceenre 4, 29, 30, 31

SAREE EE LAR De BE Dae VE 6

ne Oe i 9, 20

RULES

Federal Rule of Civil Procedure Rule 15(2) .....cc-sccssuoose 24

Rule 4 of the Rules Governing Section 2254 Cases

in the United States District Courts (2005) ................ 18, 19, 29

Rule 5 of the Rules Governing Section 2254 Cases

in the United States District Courts (2005)............... 8, 9, 15, 20

Rule 9 of the Rules Governing Section 2254 Cases

in the United States District Courts (2004) ...............ccsccceeees 13

IG CBS crcrtrrcatcnsctssemntmnisapiimcttinniemnatigesins l

8 ee ae 28

LEGISLATIVE MATERIALS

et, Fe etintticircnrctncitatnarescitimnnenines 14

ED, Fen i PO a csineceritensinnincciiaieanictisnintdenretestinns 9

DE Cons, BaaO. BGS Ga cccesttarictiercncctiiblencccanitaneeecmecee 14

OTHER AUTHORITIES

Report on Habeas Corpus in Capital Cases, 45 Crim.

I 14

STATEMENT OF THE CASE

A Florida jury convicted Day of second degree murder, and

he was sentenced by a Florida trial court. The Florida First

District Court of Appeal (“First District”) affirmed Day’s

sentence on December 21, 1999. (J.A. 1, 3). Day did not

petition this Court for review of that decision, but his deadline

for doing so was March 20, 2000. See Supreme Court Rule 13.1.

Three hundred and fifty-three (353) days later, on March 13,

2001, Day filed a motion for state post-conviction relief. (J.A.

2). That motion and a second post-conviction motion were both

denied. (J.A. 2). The First District affirmed and issued its

mandate on December 3, 2002. (J.A. 4).

Thirty-six (36) days later, on January 8, 2003, Day filed the

petition for federal habeas relief that is the subject of this appeal.

(J.A. 5). The assigned magistrate judge ordered the State to

answer. (J.A.21). Respondent’s answer erroneously concluded

that the petition had been “filed after 352 days of untolled time”

and was therefore “timely,” even though the answer and its

attachments revealed that more than one year of untolled time

had passed between the finality of Day’s conviction and the

filing of his habeas petition. (J.A. 23-24; Dkt. 7, Exs. G, I, P

(Exhibits to Respondent’s Answer)). Upon order of the court,

Day filed a reply to Respondent’s answer. (Dkts. 8, 9).

No further activity occurred in the case until December 2003,

when a newly assigned magistrate judge ordered Day to show

cause why the petition should not be dismissed as untimely.

(J.A. 26-30). Day’s response noted Respondent agreed the

petition was timely, and contended his petition was in fact timely

because the limitations period in 28 U.S.C. § 2244(d) was tolled

during the time when he could have sought certiorari from the

First District’s denial of post-conviction relief. (J.A. 31-32). He

also raised brief arguments relating to equitable tolling. (J.A.

32). The magistrate judge recommended dismissal, concluding

Day’s argument that his petition was timely was foreclosed by

controlling Eleventh Circuit precedent and his equitable tolling

claim was deficient. (Petition for Cert. App. C at 8a-15a). Day

filed an objection, asserting that the district court’s power to

dismiss a plainly deficient habeas petition expired when the court

ordered the respondent to file an answer. (J.A. 35). The district

court adopted the magistrate judge’s report and recommendation

and dismissed the petition. (J.A. 7).

The Eleventh Circuit granted Day a certificate of

appealability to address “[w]hether the district court erred in

addressing the timeliness of appellant’s habeas corpus petition . .

. after Respondent had conceded that [Day’s] petition was

timely.” (J.A. 37). The court affirmed, holding that “a

concession of timeliness that is patently erroneous does not

compromise the authority of a district court to dismiss sua sponte

a habeas petition that is untimely, under AEDPA, which was

enacted to promote finality of state criminal judgments.” Day v.

Crosby, 391 F.3d 1192, 1192 (11th Cir. 2004). This Court

granted certiorari. Day v. Crosby, 126 S. Ct. 34 (2005).

SUMMARY OF ARGUMENT

A district court has authority to raise the AEDPA limitations

defense sua sponte nothwithstanding a State’s waiver, and to

dismiss an untimely petition after having given notice and

determined that the petitioner is not prejudiced by the sua sponte

dismissal. While Respondent acknowledges the limitations

defense may be waived, that waiver, inadvertent or otherwise, is

not alone dispositive of the court’s inherent authority. Rather,

the district court must exercise discretion in each case to decide

whether the administration of justice is better served by

dismissing the case on limitations grounds or by reaching the

merits of the petition.

Habeas cases differ from ordinary civil cases because habeas

cases implicate interests of comity, federalism, and finality ---

interests beyond those of the parties. Recognizing this

distinction, this Court and the lower courts have held that federal

habeas courts have inherent authority to raise other potential non-

jurisdictional bars to habeas relief even where the government

has not properly raised such defenses. AEDPA’s limitations

defense implicates these same interests and promotes judicial

efficiency and conservation of judicial resources. Therefore,

federal courts may raise the limitations defense sua sponte just as

they may raise the more traditional habeas defenses sua sponte.

The exercise of inherent authority to dismiss untimely petitions

is consistent with both the letter and spirit of the Habeas Rules

and with this Court’s habeas jurisprudence.

Waiver of the limitations defense is a factor to be considered

by the court in determining whether to raise the defense sua

sponte. Indeed the intentional relinquishment of the defense

would weigh against sua sponte dismissal. However in this case,

the district court was correct to raise the limitations defense sua

sponte because applicability of the defense was apparent from

the entirety of Respondent’s answer. |

3

Day was given appropriate notice and the opportunity to be

‘heard before his untimely petition was dismissed, and is not

prejudiced by the dismissal. A frustrated expectation of

receiving a decision on the merits does not constitute prejudice.

Further, there is no suggestion Respondent “strategically”

withheld the defense, and the possibility that a State might do so

in another case is not a sound basis for denying courts the

authority to consider timeliness sua sponte in all cases.

Additionally, the fact that statute of limitations calculations in

habeas cases are prone to error counsels in favor of district court

discretion. The effectuation of AEDPA’s purposes should not

depend solely on the ability of one government attorney to

calculate the limitations period correctly in a given case.

Finally, Day’s contention his petition was timely is not fairly

included within the certiorari petition and in fact would obviate

the need to address the issues upon which the Court granted

certiorari. Additionally, Day’s contention his petition was timely

can only be correct if his state postconviction motion remains

“pending” under 28 U.S.C. § 2244(d)(2) during the period when

he could have, but did not, petition this Court for a writ of

certiorari. This construction of § 2244(d)(2) is inconsistent with

this Court’s decision in Carey v. Saffold, 536 U.S. 214 (2002),

and has been rejected by all but one of the eleven circuits to have

considered the issue. Thus even if the Court reaches this issue, it

should reject Day’s argument and approve the view of the

overwhelming majority of the circuits.

ARGUMENT

I. A DISTRICT COURT HAS DISCRETION TO RAISE

THE LIMITATIONS DEFENSE SUA SPONTE

Respondent of course acknowledges the statute of limitations

defense in a habeas proceeding may be waived. Every circuit

court of appeal to consider the issue has held the limitations

defense is not jurisdictional and is thus subject to equitable

considerations such as waiver. E.g., Robinson v. Johnson, 313

F.3d 128, 134, 141 (3d Cir. 2002), cert. denied, 540 U.S. 826

(2003); Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir. 2000).

However, the effect of a State’s waiver in any given case

presents a question subsumed by the central issue presented in

this case—whether a federal court has discretion to dismiss an

untimely habeas petition notwithstanding the State’s waiver of

the statute of limitations defense. As developed below, a State’s

waiver of the limitations defense in a § 2254 case, inadvertent or

otherwise, is not alone dispositive. Waiver is simply one factor

for the district court to consider in deciding whether to exercise

its sua sponte discretion to raise the limitations defense and, after

notice and absent prejudice, ultimately to dismiss on that basis.

A. Habeas proceedings implicate interests beyond those

of the parties.

The exercise of habeas jurisdiction exacts “profound societal

costs.” Smith v. Murray, 477 U.S. 527, 539 (1986), quoted in

Calderon v. Thompson, 523 U.S. 538, 554 (1998). Among the

heaviest costs of habeas review is the frustration of “both the

States’ sovereign power to punish offenders and their good-faith

attempts to honor constitutional nghts.” Engle v. Isaac, 456 U.S.

107, 128 (1982), quoted in, e.g., Calderon, 523 U.S. at 555-56,

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993), and

McCleskey v. Zant, 499 U.S. 46, 491 (1991). This Court has

recognized repeatedly the States’ significant interest in the

5

finality of convictions that have survived direct review within the

state courts. Brecht, 507 U.S. at 635; Bell v. Thompson, 125 S.

Ct. 2825, 2837 (2005); Calderon, 523 U.S. at 555. “Finality is

essential to both the retributive and deterrent functions of the

criminal law.” £.g., Calderon, 523 U.S. at 555. “Neither

innocence nor just punishment can be vindicated until the final

judgment is known,” McCleskey, 499 U.S. at 491, and “{w]ithout

finality, the criminal law is deprived of much of its deterrent

effect,” id. (quoting Teague v. Lane, 489 U.S. 288, 309 (1989)).

Lack of finality has heightened significance in the context of

habeas petitions filed under 28 U.S.C. § 2254 because such

petitions implicate comity and federalism concerns. See

McCleskey, 499 U.S. at 491; Engle, 456 U.S. at 134. “Our

federal system recognizes the independent power of a State to

articulate societal norms through criminal law; but the power ofa

State to pass laws means little if the State cannot enforce them.”

McClesky, 499 U.S. at 491, quoted in Calderon, 523 U.S. at 556.

The Court has recognized that liberal allowance of habeas

diminishes the significance of state trial court proceedings, see,

e.g., id. at 635, Engle, 456 U.S. at 127, encourages petitioners to

relitigate claims on collateral review, Brecht, 507 U.S. at 635,

and even arguably erodes the quality of state court judging and

the morale of state judiciaries, see Calderon, 523 U.S. at 555

(“There is perhaps nothing more subversive of a judge’s sense of

responsibility, of the inner subjective conscientiousness which is

so essential a part of the difficult and subtle art of judging well,

than an indiscriminate acceptance of the notion that all the shots

will always be called by someone «lse.’’) (internal quotation

omitted); Engle, 456 U.S. at 128 n.33. Thus, “[i}ndiscriminate

federal intrusions may simply diminish the fervor of state judges

to root out constitutional errors on their own.” Jd.

Congress sought to promote the core interests of comity,

federalism, and finality by enacting The Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). See, e.g.,

6

Woodford v. Garceau, 538 U.S. 202, 206 (2003) (recognizing

‘ that Congress enacted AEDPA to reduce delays in the execution

of criminal sentences and “to further the principles of comity,

finality, and federalism’’) (quoting Williams v. Taylor, 529 U.S.

420, 436 (2000)); see also Mayle v. Felix, 125 S. Ct. 2562, 2573

(2005) (“Congress enacted AEDPA to advance the finality of

criminal convictions.”). Even in cases where the specific terms

of AEDPA do not address the precise question at issue, federal

courts must act consistently with the specific objects of AEDPA

and the general principles underlying this Court’s habeas

jurisprudence. Calderon, 523 U.S. at 554 (“Although the terms

of AEDPA do not sovern this case, a court of appeals must

exercise its discretion [to sua sponte recall its mandate] in a

manner consistent with the objects of the statute.””). Therefore,

any exercise of discretion in a § 2254 case must be carried out

with these objects in mind.

Day discounts the fundamental distinction between habeas

and ordinary civil cases arguing that the interests of comity,

federalism, and finality have no impact on the outcome of this

case. After all, Day asserts, “Congress did not enact ‘comity,

federalism, and finality;’ it enacted AEDPA.” (Pet. Brief 31).

But Day’s position ignores this Court’s consistent instruction that

courts must exercise their discretion in determining whether

granting the writ in a particular case is consistent with the

overarching habeas principles of comity, federalism, and finality.

This discretion is embodied in the courts’ long recognized

authority to raise sua sponte defenses to habeas relief including

exhaustion, procedural default, nonretroactivity, and abuse of the

writ—even when the State has failed to raise such defenses—

because of the societal costs that attend the federal courts’

exercise of habeas jurisdiction. Like these traditional habeas

defenses, AEDPA’s statute of limitations defense implicates

concerns beyond those of the individual litigants in a particular

proceeding. Each of these defenses exists to safeguard the

finality of judgments and respect for state sovereignty.

7

Therefore, it is a proper exercise of judicial discretion for a

federal court to raise habeas defenses sua sponte when doing so

is consistent with these principles.

B. Courts have discretion to raise procedural bars to

habeas relief sua sponte.

A State’s answer to a habeas petition must state whether any

claim in the petition is barred by “a failure to exhaust remedies, a

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

Rule 5 of the Rules Governing Section 2254 Cases in the United

States District Courts (2005).' None of these bars is

jurisdictional. E.g., Granberry v. Greer, 481 U.S. 129, 131

(1987) (exhaustion not jurisdictional); Lambrix v. Singletary,

520 U.S. 518, 523 (1997) (procedural default bar not

jurisdictional); Caspari v. Bohlen, 510 U.S. 383, 389 (1994)

(nonretroactivity principle not jurisdictional); Robinson, 313

F.3d at 134 (limitations not jurisdictional). Nevertheless, this

Court and the circuit courts have held repeatedly that even when

one of these potential bars is not properly raised by the State, the

federal courts have discretion to raise the issue. Long v. Wilson,

393 F.3d 390, 403 (3d Cir. 2004) (“It is now widely recognized

that judges have discretion to raise procedural defenses in habeas

cases.”). This is because the interests advanced by these

defenses, comity, federalism, and finality, are institutional

interests that extend beyond the interests of the litigants in any

particular case.”

' Respondent cites the current version of the rule even though it

contains amendments made after pleading was complete in the present

case because the amendments were intended to be stylistic only and not

substantive. See Rule 5, Rules Governing Section 2254 Cases, Notes

of Advisory Committee on 2004 amendments.

? Day relies heavily on Scott v. Collins, 286 F.3d 923 (6th Cir. 2002)

and Nardi v. Stewart, 354 F.3d 1134 (9th Cir. 2004). However, neither

case even mentions Granberry v. Greer, 481 U.S. 129 (1987),

8

1. Failure to Exhaust

Absent exceptional circumstances, a federal court will not

consider a habeas petition until the petitioner has exhausted his

state remedies. 28 U.S.C. § 2254(b)(3); e.g., United States, ex

rel Kennedy v. Tyler, 269 U.S. 13, 17-19 (1925). This doctrine is

based on comity: “federal courts . . . will interfere with the

administration of justice in the state courts only in rare cases

where exceptional circumstances of peculiar urgency are shown

to exist.” Ex parte Hawk, 321 U.S. 114, 117 (1944).

This Court has held that when a State fails to raise an

arguably meritonous nonexhaustion defense, it is appropriate for

a habeas court to take a “fresh look” at the issue. Granberry v.

Greer, 481 U.S. 129, 131 (1987). In reaching this conclusion,

the Court recognized that although the State has a duty under

Habeas Rule 5 to advise the district court whether the prisoner

has exhausted all available state remedies, there are exceptional

cases in which the State fails to do so. Jd. The Court

acknowledged three possible consequences of the State’s failure

to raise a potentially viable exhaustion defense: the Court could

(1) prohibit dismissal on exhaustion grounds; (2) require

dismissal on exhaustion grounds notwithstanding the State’s

failure to raise the issue; or (3) adopt an intermediate approach

discussed infra, and its progeny, nor any of the procedural default or

nonretroactivity cases. Moreover, neither case recognizes the

fundamental distinctions between habeas and ordinary civil cases nor

AEDPA’s avowed congressional purpose of advancing comity,

federalism and finality.

* As part of AEDPA, § 2254 was amended to provide that a State shall

not be deemed to have waived the exhaustion requirement unless the

State waives the requirement expressly. 28 U.S.C. § 2254(b)(3). This

provision was added in reaction to court decisions that deemed States to

have waived the exhaustion requirement where the State did not do so

expressly. H.R. Rep. No. 104-23, at 10 (1995). Although Granberry

predates AEDPA, the force of its reasoning nevertheless applies.

9

allowing the courts to exercise discretion to determine what

resolution best serves the administration of justice in each case.

Id. at 131. The Court rejected the two “extreme positions,”

holding that a court “is not required to dismiss for nonexhaustion

notwithstanding the State’s failure to raise it, and the court is not

obligated to regard the State’s omission as an absolute waiver of

the claim.” Jd. at 133. The Court instead adopted the “middle

course,” allowing the federal court to determine in each case

whether the interests of comity, federalism, and judicial

efficiency will be better served by addressing the merits or by

requiring additional proceedings in state court. Jd. at 134, 135.

Thus, even where a State has failed to raise the defense of

nonexhaustion, federal courts routinely consider sua sponte

whether such defense should be applied in a given case in the

interests of comity, federalism, and judicial economy. E.z.,

Graham v. Johnson, 94 F.3d 958, 970-71 (Sth Cir. 1996); Smith

v. Horn, 120 F.3d 400, 407-08 (3d Cir. 1997), cert. denied, 522

U.S. 1109 (1998).

2. Procedural Default

As a corollary to the exhaustion requirement, a habeas

petition may be barred for procedural default if the petitioner

failed to raise an alleged constitutional error in state court and is

barred from doing so by state procedural rules. Wainwright v.

Sykes, 433 U.S. 72, 81-8) (1977). Like exhaustion, this rule is

grounded in respect for finality, comity, and the orderly

administration of justice. Dretke v. Haley, 541 U.S. 386, 388

(2004). It is based upon the general principle that federal courts

will not disturb state court judgments based on adequate and

independent state law procedural grounds. /d. at 392-93; Engle,

456 U.S. at 128-29.

This Court has not squarely addressed the question of

whether a court may raise a procedural default defense sua

10

sponte. In Trest v. Cain, 522 U.S. 87 (1997), the Court held a

court of appeals is not required to raise the issue of procedural

default sua sponte when it has been waived or not raised by the

State. /d. at 89. The Court expressly declined to address the

narrower issue of whether the law permitted the circuit court to

raise the procedural default issue sua sponte, because that issue

was not within the scope of the question presented. Jd.

The circuit courts hold unanimously that sua sponte

consideration of procedural default is within the court’s

discretion. See, e.g., Oakes v. United States, 400 F.3d 92, 96 (ist

Cir. 2005); Washington v. James, 996 F.2d 1442, 1448 (2d Cir.

1993), cert. denied, 510 U.S. 1078 (1994); Sweger v. Chesney,

294 F.3d 506, 520-21 (3d Cir. 2002), cert. denied, 538 U.S. 1002

(2003); Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir.), cert.

denied, 526 U.S. 1095 (1999); Magouirk v. Phillips, 144 F 3d

348, 358 (Sth Cir. 1998); Sowell v. Bradshaw, 372 F.3d 821, 830

(6th Cir. 2004), cert. denied, 125 S. Ct. 1645 (2005); Washington

v. Lane, 840 F.2d 443, 446 (7th Cir.), cert. denied, 488 U.S. 861

(1988); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001) (en

banc), cert. denied, 535 U.S. 934 (2002); Vang v. Nevada, 329

F.3d 1069, 1073 (9th Cir. 2003); Hardiman v. Reynolds, 971

F.2d 500, 503 (10th Cir. 1992); Esslinger v. Davis, 44 F.3d 1515,

1523-29 (11th Cir. 1995). The universal view is that although

affirmative defenses ordinarily must be raised by a defendant, the

defense of procedural default in habeas proceedings implicates

values that transcend the concerns of the parties, i.e., comity,

finality, and respect for state judgments. E.g., Sweger, 294 F.3d

at 520 n.13; Hardiman, 971 F.2d at 503. Therefore, it is not

exclusively within the parties’ control to decide whether such a

defense should be raised or waived. E.g., Sweger, 294 F.3d at

520 n.13; see also Oakes, 400 F.3d at 97 (where “institutional

values that transcend the litigants’ parochial interests . . . are in

play, . . . the court should have some say in deciding whether a

defense should be considered or deemed waived”’).

11

3. Nonretroactivity

A third potential bar to habeas relief, nonretroactivity,

prohibits a federal court from granting relief to a state prisoner

based on a new constitutional rule of criminal procedure

announced after the prisoner’s conviction and sentence become

final. Teague v. Lane, 489 U.S. 288, 310 (1989). This

prohibition derives from concerns for finality and evenhanded

justice. /d. at 300, 309. This Court determined that applying

constitutional rules that did not exist when a conviction became

final would “seriously undermine{] the principle of finality

which is essential to the operation of our criminal justice

system.” Jd. at 309 (citing Mackey v. United States, 401 U.S.

667, 691 (1971) (Harlan, J., concurring in part and dissenting in

part) (“No one, not criminal defendants, not the judicial system,

not society as a whole is benefited by a judgment providing a

man shall tentatively go to jail today, but tomorrow and every

day thereafter his continued incarceration shall be subject to

fresh litigation.”’)).

This Court instructs that although application of Teague is

not jurisdictional, it is nevertheless a “threshold question in every

habeas case.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

Therefore, if the state does not raise a Teague defense, a federal

court “may, but need not” do so sua sponte. Id. Federal courts

thus raise the nonretroactivity issue regularly. See, e.g., Webster

v. Woodford, 361 F.3d 522, 526-27 (9th Cir.) (although state

waived issue by not presenting it to district court, appellate court

exercised discretion to reach issue), cert. denied sub nom.

Webster v. Brown, 543 U.S. 1007 (2004); Lewis v. Johnson, 359

F.3d 646, 654 n.4 (3d Cir. 2004) (exercising discretion to raise

Teague issue sua sponte), Housel v. Head, 238 F.3d 1289, 1298

(1 1th Cir. 2001) (same), cert. denied, 534 U.S. 1172 (2002).

12

4. Abuse of the Writ

A final procedural bar relates to successive habeas petitions.

Prior to AEDPA, there was no statutory prohibition against

prisoners filing multiple habeas petitions. However, successive

petitions were subject to the defense of “abuse of the writ,”

which allowed for dismissal of second or successive habeas

petitions raising grounds not included in the first petition. See

McCleskey, 499 U.S. at 470; Rule 9(b) of the Rules Governing §

2254 Cases (2004). The abuse of the writ doctrine was designed

“to lessen the injury to a State that results through reexamination

of a state conviction on a ground that the State did not have the

opportunity to address at a prior, appropriate time . . . and to

vindicate the State’s interest in the finality of its criminal

judgments.” McCleskey, 499 U.S. at 493. The defense is

inapplicable to proceedings governed by AEDPA, as AEDPA

prohibits the filing of successive petitions raising new grounds

except upon permission from the appropriate circuit court of

appeals. 28 U.S.C. § 2244(b)(2),(3).

Those circuit courts that addressed the issue pre-AEDPA

held that the abuse of the writ defense cc uld be raised sua

sponte. See Femia v. United States, 47 F.3d 519, 522-23 (2d Cir.

1995); Sockwell v. Maggio, 709 F.2d 341, 343-44 (Sth Cir.

1983); Jones v. Estelle, 692 F.2d 380, 384 n.5 (Sth Cir. 1982);

see also Thigpen v. Smith, 792 F.2d 1507, 1515 (11th Cir. 1986).

The Second Circuit explained in Femia that dismissal for abuse

of the writ is not “within the sole initiative of the prosecution”

because abuse of court processes adversely affects the

administration of justice to the detriment of the public. 47 F.3d

at 522-23. “{W]here a doctrine implicates [nonjurisdictional}

values that may transcend the concerns of the parties to an

action, it is not inappropriate for the court, on its own motion, to

invoke the doctrine.” /d. (citations and internal quotations

omitted).

13

C. The limitations defense should be treated like

other procedural bars to habeas relief.

The question here is whether the federal courts’ sua sponte

authority to raise the defenses of exhaustion, procedural default,

nonretroactivity, and formerly, abuse of the writ, similarly

applies to the statute of limitations defense. As in Granberry,

this Court might resoive the question in one of three ways. At

one extreme, the position Day urges, the Court might treat the

State’s failure to raise the defense as an absolute waiver. At the

other extreme, the position Day attributes to Respondent, the

Court might require that a petition be dismissed when the statute

of limitations has run. As in Granberry, however, neither of

_ these extreme positions is persuasive. The third option, and the

one Respondent advocates, is the “intermediate approach” that

allows the district court to exercise 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.

Prior to AEDPA, there was no specific time limitation

governing habeas petitions. As a result, state prisoners,

particularly those sentenced to death, had incentives to delay

filing their habeas petitions. See, e.g., McCleskey, 499 U.S. at

491-92; see also, e.g., Report on Habeas Corpus in Capital

Cases, 45 Crim. L. Rep. (BNP) 3239, 3240 (1989) (“litigation of

constitutional claims often comes only when prompted by the

setting of an execution date.”’); 142 Cong Rec H3605, H3606

(1996) (statement of Rep. Hyde) (describing then-ubiquitous

delays in habeas proceedings in capital cases as “ridiculous”);

142 Cong. Rec. $3454, $3471-72 (1996) (statement of Sen.

Specter) (describing delays inherent in the pre-AEDPA habeas

statutory scheme).

The purpose of § 2244(d)(1) was to reform and streamline

the process, “reduc[ing] the potential for delay on the road to

14

finality by restricting the time that a prospective federal habeas

_ petitioner has in which to seek federal habeas review.” Duncan

v. Walker, 533 U.S. 167, 179 (2001). The limitation period

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

of state court judgments,” id., and through it, the derivative,

equally well-recognized interests in comity and federalism. “The

AEDPA statute of limitation promotes judicial efficiency and

conservation of judicial resources, safeguards the accuracy_of _

State court judgments by requiring resolution of constitutional

questions while the record is fresh, and lends finality to state

court judgments within a reasonable time.” Acosta v. Artuz, 221

F.3d 117, 123 (2d Cir. 2000), quoted in Long v. Wilson, 393 F.3d

390, 402 (3d Cir. 2004).

Because the statute of limitations furthers the same interests

as the other traditional habeas defenses, it is appropriate for

federal courts to raise the statute of limitations defense sua

sponte just as it is appropriate to raise sua sponte the defenses of

exhaustion, procedural default, nonretroactivity and formerly,

abuse of the writ. Acosta, 221 F.3d at 117 (like other procedural

bars to habeas review, statute of limitations implicates interests

of federal courts, state courts, and society and therefore it is

appropriate for court to raise statute of limitations on own

motion). Indeed, Rule 5 expressly treats the limitations defense

exactly like other habeas procedural issues. See Rule 5 of the

Rules Governing Section 2254 Cases in the United States

District Courts (2005). See also Long, 393 F.3d at 403 (there is

“no difference between the habeas corpus statute of limitations

and other habeas procedural issues”); Hill v. Braxton, 277 F.3d

701, 705 (4th Cir. 2002) (citing procedural default case, Yeatts v.

Angelone, 166 F.3d 255, 261-62 (4th Cir.), cert. denied, 526 U.S.

1095 (1991), for proposition that federal habeas courts may raise

affirmative defenses not preserved by state because § 2254

proceedings implicate considerations of comity, federalism, and

judicial efficiency to degree not present in ordinary civil actions);

Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001) (just as

15

district court may raise procedural default sua sponte, court may

also raise statute of limitations sua sponte because interests of

comity, federalism, and judicial efficiency underlying court’s

discretion to raise procedural default apply equally to statute of

limitations); Scott v. Collins, 286 F.3d 923, 934 (6th Cir. 2002)

(Stafford, J., dissenting) (AEDPA’s statute of limitations

advances similar concerns as doctrines of exhaustion and

procedural default, so must be treated the same).

A federal habeas petition filed beyond AEDPA’s one year

statute of limitations presents the possibility a state court

judgment which has survived both direct and collateral state

court review will be subjected to extensive federal review in

direct contravention of Congress’s prohibition on federal habeas

review of state judgments that have been final for more than one

year. This possibility--that ineligible habeas petitions will usurp

limited federal resources and may eventually nullify final

judgments entered and upheld by the state courts--raises concerns

of comity, federalism and finality that extend far beyond the

interests of the individual litigants to any particular habeas

proceeding. For this reason, the resolution of untimely habeas

petitions cannot be left solely in the hands of the litigants. See

United States v. Bendolph, 409 F.3d 155, 166 (3d Cir. 2005) (en

banc) (expressing doubt that “Congress intended to relegate the

efficacy of its reforms to the vagaries of a prosecutor’s decisions

or mistakes”), petition for cert. filed, (U.S. June 24, 2005) (No.

05-3); Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002)

(because § 2254 actions implicate comity, federalism, and

judicial efficiency to degree not present in ordinary civil actions,

these interests “eclipse the immediate concerns of the parties”

and provide courts discretionary authority to raise affirmative

defenses not preserved by state).

Day argues that unlike exhaustion and procedural default, the

statute of limitations does not implicate comity and federalism.

(Pet. Brief 40-41). To the contrary, this Court’s precedent

16

establishes that federal/state relations are implicated by any

federal collateral attack on a state court criminal judgment,

whether or not such attack directly implicates exhaustion or

procedural default. The Court explained this well in McCleskey,

holding that procedural default and abuse of the wnt “implicate

nearly identical concerns flowing from the significant costs of

federal habeas review.” 499 U.S. at 490-91. Although the Court

acknowledged that comity and federalism—‘respect for the

integrity employed by a coordinate jurisdiction within the federal

system”—are not implicated directly when a petitioner fails to

raise a claim in the first round of federa! review, it found both the

procedural default and abuse of the writ doctrines are “designed

to lessen the injury to a State that results through reexamination

of a state conviction on a ground that the State did not have the

opportunity to address at a prior, appropriate time... .” Jd. at

493; see also Willams v. Taylor, 529 U.S. 420, 436 (2000) (Court

is careful to limit scope of federal intrusion into state criminal

adjudications in order to maintain delicate balance between the

States and federal courts); Engle, 456 U.S. at 128, 134

(explaining that federal intrusions into state criminal trials

frustrate states’ sovereign power and noting federal habeas

challenges to state convictions implicate special comity

concerns). Although comity and federalism may be at their

zenith when habeas petitioners have failed to exhaust their

constitutional claims in state court, this does not negate the

significance of these interests in the context of other habeas

defenses.

Further, the potential bars to habeas relief are not solely

based on comity; they are also grounded in the closely related

and equally important goal of protecting the finality of

judgments. See McCleskey, 499 U.S. at 493 (doctrines of

procedural default and abuse of writ also seek to vindicate

State’s interest in the finality of its criminal judgments); Teague,

489 U.S. at 309 (application of constitutional rules announced

after conviction became final seriously undermines principle of

17

finality which is essential to operation of criminal justice

system). Like procedural default, abuse of the writ, and

nonretroactivity, the one-year statute of limitations for habeas

petitions serves “the well recognized interest” in the finality of

judgments. Duncan, 533 U.S. at 179. |

The fact that habeas petitions were not subject to a statute of

limitations before AEDPA does not render inapplicable the body

of case law relating to pre-AEDPA defenses. Nothing in

AEDPA indicates Congress intended to eliminate the federal

courts’ well-established discretion to raise defenses not raised by

the government when doing so advances the interests of comity,

federalism, and finality. See Link v. Wabash Railroad Co., 370

U.S. 626, 630 (1962) (rejecting assertion that civil rule impliedly

abrogated courts’ inherent authority to dismiss cases sua sponte

for lack of prosecution because “ijt would require a much

clearer expression of purpose than [the rule] provides us to

assume that it was intended to abrogate so well-acknowledged a

proposition”). Furthermore, AEDPA restricts the habeas courts’

discretion to grant relief, it does not eliminate the habeas courts’

pre-AEDPA discretion to deny relief. Cf Horn v. Banks, 536

U.S. 266, 272 (2002) (“[w]hile it is of course a necessary

prerequisite to federal habeas relief that a prisoner satisfy the

AEDPA standard of review . . . none of our post-AEDPA cases

have suggested that a writ of habeas corpus should automatically

issue if a prisoner satisfies the AEDPA standard”). See also

Bendolph, 409 F.3d at 155 (“no Congressional intent [in

AEDPA] to hamstring the courts in carrying out its reforms”).

Thus, the long-recognized authority to raise potential habeas bars

sua sponte remains intact following AEDPA’s enactment, and

the effect of AEDPA is merely to add the statute of limitations to

the list of defenses federal courts may raise on their own motion

when doing so advances the interests underlying AEDPA.

Day relies on Scott, 286 F.3d 923, for the proposition that

Rule 4 grants a district court authority to raise the limitations

18

defense sua sponte and that authority then expires once the court

orders the respondent to file an answer. (Pet. Bnef 29).

However, Rule 4 is not a grant of authority, but rather a

recognition of the district court’s well established inherent

authority to raise defenses sua sponte. The plain language of

Rule 4 is devoid of any reference to an elimination of the district

court’s recognized inherent authority. The text of the rule

provides no support for Day’s argument that this inherent

authority “expires” when the court orders the State to answer.

Such an abrogation of the courts’ inherent authority must be

express, and cannot be accomplished by “negative implication.”

See Link, 370 U.S. at 630.

Day also fails to comprehend the purpose of Rule 4 is to

transform ihe court’s recognized authority to deny relief, during

the “preliminary review” or pre-answer period, from

discretionary to mandatory. See Rule 4 of the Rules Governing

Section 2254 Cases in the United States District Courts (2005)

(judge “must” dismiss the petition if it plainly appears from

petition that petitioner is not entitled to relief); see also id., Notes

of Advisory Committee on Rules (it is duty of court to “screen

out frivolous applications” and eliminate respondent’s burden of

filing unnecessary answer). The appropriate negative implication |

to be drawn from Rule 4 is that once preliminary review is

complete and the respondent has been ordered to answer, the

court no longer “must” dismiss the petition if it appears the

petitioner is not entitled to relief. This reading of Rule 4 is

entirely consistent with this Court’s holdings that federal courts

are not required to raise potential affirmative defenses to habeas

actions that the State has failed to raise properly. See Granberry,

481 U.S. at 133 (court is not required to dismiss for

nonexhaustion notwithstanding State’s failure to raise it);

Caspari, 510 U.S. at 389 (court may, but need not, decline to

apply nonretroactivity defense if State does not argue it); Trest,

522 U.S. at 89 (court is not required to raise issue of procedural

default sua sponte). If Day were correct that Rule 4

19

circumscribes the federal courts’ discretion to raise defenses sua

sponte after the State answers the petition, this interpretation of

the rule would effectively overrule the Court’s holdings in

Granberry and Caspari that a court may consider the defenses of

exhaustion and nonretroactivity even if not properly raised in the

respondent’s answer.

Nor is a habeas court’s inherent authority to consider waived

affirmative defenses sua sponte diminished by 28 U.S.C. §

2254(b)(3) or Rule 5. Section 2254(b)(3), which requires any

waiver of the nonexhaustion defense to be express, merely

specifies the circumstances in which a court may deem the

nonexhaustion defense waived; it does not require a court to

deem a habeas defense waived in any set of circumstances. At

most, this subsection can be read as allowing implied waiver of

defenses other than nonexhaustion. The purpose of the

requirement in Rule 5 that certain defenses, including the statute

of limitations, be raised in the answer is designed to relieve the

petitioner of the -burden of overcoming these defenses in the

initial petition. See Femia, 47 F.3d at 523. Furthermore, the rule

does not address what a court may or must do if a State fails to

comply with this rule. Section 2254(b)(3) and Rule 5 must be

construed consistent with the general principles underlying

habeas corpus jurisprudence. Calderon, 523 U.S. at 554.

Nothing in these provisions eliminates the habeas courts’

discretion to decline to apply waiver of a defense, express or

implied, when the interests of comity, federalism, and finality are

served by doing so.

20

Ii. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION BY RAISING THE LIMITATIONS

DEFENSE

A. Respondent’s waiver, inadvertent or otherwise, did

not deprive the district court of inherent authority.

A State’s waiver of the AEDPA limitations defense does not

abolish the court’s inherent authority to dismiss an untimely

petition on this ground. The analysis “turns not on waiver, but

rather on whether courts have the inherent power to protect

themselves from habeas abuse, post-answer, consistent with

Congress’ [s] intent, and whether, where a court exercises that

power, the habeas movant is prejudiced.” Bendolph, 409 F.3d at

168; see also Hardiman, 971 F.2d at 504 (fact that unraised

defense may be waived does not mean court cannot raise defense

sua sponte when issues of comity and judicial efficiency indicate

court should not reach merits of habeas claim). Thus contrary to

Day’s suggestion, the doctrine of waiver does not operate in

every case to prohibit habeas courts from raising defenses not

raised by the State. ,

A State’s waiver of the limitations defense in a § 2254 case,

inadvertent or otherwise, is a factor for the federal court to

consider in exercising its discretion to sua sponte notice and

dismiss an untimely petition. Yeatts, 166 F.3d at 262 (court

should consider whether state’s failure to raise procedural default

defense was intentional or inadvertent, and where intentional,

court should be circumspect in addressing issue); see also

Magouirk, 144 F.3d at 359 (where state’s waiver is result of

purposeful or deliberate decision to forego defense, court should

typically presume waiver to be valid). The State’s conduct

should inform, but not invariably control, the court’s discretion.

Indeed, it may be an abuse of discretion for a district court to

dismiss a habeas petition sua sponte based on a defense the

respondent has intentionally waived. See Henderson v. Thieret,

21

859 F.2d 492, 498 (7th Cir. 1988) (reversing district court’s

dismissal of habeas petition on procedural default grounds

because dismissal overrode assistant attorney general’s statement

that state did not wish to pursue procedural default defense), cert.

denied, 490 U.S. 1009 (1989). This determination is best made

on a case-by-case basis.

Here, the district court’s exercise of discretion to raise the

limitations defense was particularly appropriate because the

applicability of the defense was apparent from the entirety of

Respondent’s answer. The answer does incorrectly concede “the

petition is timely” because it was “filed after 352 days of

untolled time.” J.A. 24 (emphasis added). However, the

documents referenced in and attached to the answer establish the

petition was filed after 388 days of untolled time—after

AEDPA’s one-year statute of limitations expired. The magistrate

judge used these documents to calculate sua sponte the number

of untolled days, and, upon arriving at a different number than

Respondent, issued a show cause order (J.A. 26-30)—implicitly

finding erroneous Respondent’s position that the petition was

timely. The Eleventh Circuit described Respondent’s

concession of timeliness under these circumstances as “patently

erroneous” and found such concession indistinguishable from a

failure to plead the defense altogether. Day, 391 F.3d at 1194.‘

* A concession that is patently erroneous is not a waiver merely because

it is explicit. A “waiver” requires the intentional relinquishment of a

known right. E.g., United States v. Olano, 507 U.S. 725, 733 (1993)

(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); Bendolph, 409

F.3d at 167. Other courts have held a mistaken concession is not a

waiver. Washington v. James, 996 F.2d 1442, 1448 (2d Cir. 1993)

(government’s erroneous concession of procedural defense constitutes

“merely an innocent error [and] there is no analytic or policy reason to

treat it any differently than a failure to raise the defense at all”), cert.

denied, 510 U.S. 1078 (1994); Strader v. Allsbrook, 656 F. 2d 67, 68

(4th Cir. 1981) (state did not waive exhaustion requirement

notwithstanding erroneous concession that petitioner “had exhausted

2

Wher:, as here, the applicability of the defense is clear from the

face of the record, it is not an abuse of discretion for a federal

court to exercise its sua sponte authority to raise a procedural bar

to habeas. Ortiz v. Dubois, 19 F.3d 708, 715 (1st Cir. 1994)

(dismissing claim on procedural default grounds notwithstanding

state’s failure to properly preserve defense because default was

clear on face of record and would be needless expenditure of

scarce judicial resources to address merits), cert. denied, 513

U.S. 1085 (1995).

B. Day had notice and an opportunity to be heard.

When a court exercises its discretion to raise the statute of

limitations defense sua sponte, justice requires the court to give

the parties prior notice and an opportunity to respond. Hill, 277

F.3d at 707; Acosta, 221 F.3d at 124. This requirement serves

the specific interests of the parties in the adversarial process as

well as the broader public concerns implicated in habeas

proceedings. McMillan v. Jarvis, 332 F.3d 244, 249 (4th Cir.

2003). Here, Day was given notice the court viewed his petition

as untimely and was given twenty days to show why the petition

should not be dismissed on this basis. (J.A. 26-30). Day timely

responded. (J.A. 31-32). Therefore, Day received adequate

notice and an opportunity to be heard before his untimely

petition was dismissed.

In addition to providing the petitioner an opportunity to

explain why the petition should not be dismissed, the notice

requirement also provides the government the opportunity to

inform the court if it affirmatively desires to waive the defense.

his State court remedies . . . and [was] entitled to adjudication of (his)

contentions on the merits”); Davis v. Campbell, 608 F.2d 317, 320 (8th

Cir. 1979) (“erroneous pleading by the state [is] . . . an express waiver.

of the exhaustion requirement”).

23

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. In another case, however, the State might respond to

the show cause order by informing the court that it desires to

waive the defense. Any such affirmative waiver would be a

factor to be considered in evaluating whether a dismissal on a

ground affirmatively waived by the State is a proper exercise of

the court’s discretion. Henderson, 859 F.2d at 498; Yeatts, 166

F.3d at 262.

C. Day is not prejudiced by the dismissal.

Where, as here, the court raises the defense after the

government has filed an answer, the court should also consider

whether the petitioner is prejudiced by the sua sponte raising of a

habeas defense. Bendolph, 409 F.3d at 168. The prejudice

analysis examines, among other factors, the length of delay in

raising the defense, the reason for the delay, and the actual

prejudice suffered by the petitioner as a result of the delay. See

id. at 168-69; Long, 393 F.3d at 399-401.°

In this case, the elapsed time between the Respondent’s

answer and the magistrate judge’s show cause order first raising

the statute of limitations was approximately nine months. (J.A.

5,6). During this time, the parties were simply awaiting a ruling

from the court. The parties did not engage in any additional

briefing, did not engage in discovery, and did not conduct an

_ evidentiary hearing. Day did not incur additional expense during

this period. Nothing in the record suggests, nor does Day assert,

that the Respondent withheld the defense for an improper

* These factors are similar to those courts consider in deciding whether

to allow amendment of a pleading pursuant to Rule 1 5(a) of the Federal

Rules of Civil Procedure. See Foman v. Davis, 371 U.S. 178, 182

(1962). )

24

purpose. These record facts indicate no prejudice to Day as a

result of the court raising the statute of limitations defense sua

sponte. See Long, 393 F.3d at 399 (petitioner not prejudiced

where government mistakenly failed to raise statute of

limitations defense in answer and 14-month delay between

answer and court’s raising of defense was not attributable to

government); Bendolph, 409 F.3d at 168-69 (two-year delay did

not constitute prejudice where government did not act in bad

faith, petitioner had not engaged in discovery and suffered no

loss or diminution in ability to prepare case). The only purported

claim of prejudice Day identifies is the time and expense spent

briefing the ments and the thwarted expectation of receiving a

decision on the merits. (Pet. Brief 18). This claim is

insufficient, by itself, to constitute prejudice. See Long, 393 F.3d

at 399 (frustrated expectation of not having untimely habeas

petition heard on merits does not establish prejudice). Because

Day was not prejudiced when the district court raised the statute

of limitations sua sponte, the court did not abuse its discretion by

doing so.

Although Day was not prejudiced, he argues that a district

court can never raise the statute of limitations defense sua sponte

because a State might “strategically hold[] a limitations defense

in reserve” for use on appeal while seeking a favorable ruling on

the merits. (Pet. Brief 14, 38). Indeed, this Court identified this

possibility in Granberry, citing it as a reason for declining to

adopt an “inflexible” rule that would always treat nonexhaustion

as a bar to consideration of the merits of a claim. 481 U.S. at

131-32. However, the Court also declined to adopt the

petitioner’s argument in that case—that the court must regard a

State’s omission of the nonexhaustion defense as an absolute

waiver. /d. at 131, 133. Instead, the Court adopted a middle

course that allows courts to examine the individual

circumstances of each case to determine whether the interests of

comity and federalism would be better served by invoking the

exhaustion issue or addressing the merits. /d. at 133, 134.

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So too here, hypothetical misconduct by the State,

undisputedly absent in the present case, should not serve as the

basis for adopting a blanket prohibition on habeas courts raising

a statute of limitations defense sua sponte. Instead, courts should

be allowed to determine whether it is appropriate to invoke the

statute of limitations defense in an individual case. If a State

intentionally withholds the defense in order to pursue a favorable

result on the merits, this conduct would likely constitute bad

faith by the State and would strongly suggest prejudice to the

petitioner. Bendolph, 409 F.3d at 169 (identifying bad faith by

government as an element of prejudice to petitioner). Even if the

State’s omission of the defense is not intentional, a court’s sua

sponte invocation of the defense late in the proceedings might

not serve the interest of judicial economy. See Esslinger, 44

F.3d at 1528 n.45 (where district court raised procedural default

bar after the evidentiary hearing on the merits, court saved

neither time nor resources). Day’s concerns about hypothetical

scenanos not present in this case are fully addressed by allowing

a court to determine whether, in an individual case, sua sponte

invocation of the statute of limitations causes prejudice to the

petitioner and advances the interests of comity, federalism,

finality, and judicial economy.

Also contrary to Day’s argument, a district court’s proper

exercise of discretion in raising the limitations defense sua

sponte does not somehow transform the court into an advocate

for one party to the prejudicial detriment of the other. Rather, in

so doing the court is simply engaging in effective case

management consistent with the letter of AEDPA, the spirit of

AEDPA’s avowed congressional purpose, and this Court's

habeas jurisprudence.

Finally, the simple fact remains Day was not prejudiced

because the petition was untimely. Respondent’s erroneous

concession of timeliness was based on a patently incorrect

computation. See Day, 391 F.3d at 1194. Unfortunately,

26

limitations calculations in habeas proceedings are prone to these

types of errets. See Bendolph, 409 F.3d at 167 (“[H]abeas cases

present sometimes difficult questions of time computation . .. .

all too easily, habeas respondents and courts may err in their

calculation.”’) (internal quotations and citations omitted). This

propensity for error supports the need for district court

discretion. The ultimate effectuation of AEDPA’s purposes and

the concomitant societal interests cannot and must not rest solely

on the shoulders of an individual government attorney’s ability to

calculate correctly the limitations penod in a given case.

Bendolph, 409 F.3d at 166. Congress did not intend AEDPA to

operate as a “gotcha” system of justice where application of

essential guidelines can tum on one defective link in the

government chain. Providing the court with the discretion

advocated herein thus protects both the overriding societal

interests and ensures the petitioner will not only be heard but

also will not suffer any prejudice by an untoward application of

the limitations bar. Nothing in this Court’s habeas jurisprudence

compels a different result.

D. Day’s petition was untimely.

1. The issue of the habeas petition’s

timeliness is not fairly included within

Qo autitaghin

Day urges this Court to find that that his habeas petition was

timely in any event because, he asserts, the one-year statute of

limitations was tolled during the period he could have but did not

seek this Court’s review of the denial of his motion for post-

conviction relief. (Pet. Brief 45-49). This issue is not properly

before the Court. Indeed were this Court to find the petition was

timely, this finding would obviate the need to address the very

issues on which the Court granted certiorari. If the district court

dismissed a timely habeas petition as untimely, this fact alone

would warrant reversal.

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The Court grants certiorari with the expectation of being able

to decide the merits of the issue. See Schiro v. Farley, 510 U.S.

222, 229 (1994) (declining to address alternative ground for

affirming judgment because “the propriety of reaching the merits

of a dispute is an important consideration in deciding whether or

not to grant certiorari’). “Only the questions set out in the

petition [for certiorari], or fairly included therein, will be

considered by the Court.” Supreme Court Rule 14.1(a). The

Court has adhered consistently to this rule. See, eg,

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563 n.9 (1999);

Lambrix v. Singletary, 520 U.S. 518, 527 n.1 (1997); Hagen v.

Utah, 510 U.S. 399, 409-10 (1994); Izumi Seimitsu Kogyo

Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 32 (1993)

(per curiam); Yee v. Escondido, 503 U.S. 519, 537 (1992). This

Court’s near-uniform practice is to consider only the precise

questions presented in a petition for certiorari along with any

“subsidiary question{s} fairly included therein.” Supreme Court

Rule 14.1(a); City of Sherrill v. Indian Nation, 125 S. Ct. 1478,

1490 n.8 (2005); see also Oklahoma Tax Comm'n v. Chickasaw

Nation, 515 U.S. 450, 457 (1995) (“[W]e will entertain issues

withheld until merits briefing only in the most exceptional

cases.””) (internal quotation omitted). Accordingly, the Court has

repeatedly refused to entertain questions following the grant of

certiorari that, while related to the questions presented, are

analytically and factually distinct. See, e.g., Izumi Seimitsu

Kogyo Kabushiki Kaisha, 510 U.S. at 32; Yee, 503 U.S. at 537.

In this case, the Court cannot address whether the habeas

petition was timely without departing from Rule 14.1(a) and the

Court’s consistent past practice. The questions presented in the

petition for certiorari, and the text of the petition itself,° address

° The petition mentions the State’s concession of timeliness was not

erroneous, but does so only to cast doubt on the Eleventh Circuit’s

characterization of the State’s concession as “patently erroneous.”

Petition for Cert. 19-20.

28

(1) whether the State waived the limitations defense and (2)

whether Habeas Rule 4 deprives the district court of the power to

sua sponte dismiss a habeas petition on the basis of a ground not

raised in the answer. The antecedent issue of whether the habeas

petition was timely—and therefore whether the State’s

concession of timeliness was erroneous—is factually and

analytically distinct from these questions. Factually, the events

relevant to the petition’s timeliness pertain to Day’s direct appeal

and state court motions for collateral relief, while the events

relevant to the questions presented pertain to the proceedings

following Day’s federal habeas petition. Legally, the question of

whether the petition was timely would turn solely upon the

Court’s construction of 28 U.S.C. § 2244(d)(2), a statute

otherwise irrelevant to the questi uns presented. Additionally, the

Court should decline to review the timeliness issue because it

was neither briefed to nor decided by the Eleventh Circuit. E.g.,

FW/PBS, Inc. v. City of Dallas, 493 U.S. 214, 239-€t990)

(declining to consider issues not raised or reached below);

Federal Trade Comm'n v. Grolier Inc., 462 U.S. 19, 22 n.6

(1983) (same).

2. State post-conviction proceedings are no

longer “pending” after they have-

concluded.

If this Court addresses Day’s argument regarding the

petition’s timeliness, it should reject the argument. Section 2244

provides that AEDPA’s one-year period of limitation is tolled

while “a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or

claim is pending.” 28 U.S.C. § 2244(d)(2). The purpuse of this

provision is to “promote[{] the exhaustion of state remedies by

protecting a state prisoner’s ability later to apply for federal

habeas relief while state remedies are beig pursued.” Duncan,

533 U.S. at 179 (emphasis added). By its clear terms, the

29

provision “accord{s] tolling effect only to properly filed

applications for State [as opposed to Federal] post-conviction or

other collateral review.” /d. at 180 (internal quotation omitted).

A petition to this Court is not an “application for State post-

conviction or other [State] collateral review.” See id. at 173 (“We

find no likely explanation for Congress’ omission of the word

‘Federal’ in § 2244(d)(2) other than that Congress did not intend

properly filed applications for federal review to toll the limitation

period.”); see also, e.g., Crawley v. Catoe, 257 F.3d 395, 400

(4th Cir. 2001), cert. denied, 534 U.S. 1080 (2002); Rhine v.

Boone, 182 F.3d 1153, 1156 (10th Cir. 1999), cert. denied, 528

U.S. 1084 (2000). Therefore, Day’s theory that his habeas

petition was timely can only be correct if such an application

remains “pending” after it becomes final, during the period that

the prisoner could, but doesn’t, petition for certiorari. The Court

should conclude it does not.

In Carey v. Saffold, 536 U.S. 214 (2002), the Court

considered whether an application for State post-conviction relief

remained “pending” within the meaning of § 2244(d)(2) during

discrete intervals in a State’s post-conviction process in which a

criminal defendant’s application for relief was momentarily not

under court consideration. Jd. at217. Answering the question in

the affirmative, the Court held that the application remains

“pending” for § 2244(d)(2) purposes “until the application has

achieved final resolution through the State’s post-conviction

procedures.” Jd. at 220. The Court explained in Carey that the

ordinary meaning of “pending” is “in continuance” or “not yet

decided” when used as an adjective, and “through the period of

continuance . . . of” or “until the . .. completion of’ when used

as a preposition. /d. at 219-220. Because § 2244(d)(2) refers

only to “application[s] for State post-conviction or other [State]

collateral review,” see Duncan, 533 U.S. at 180, the ordinary

meaning of § 2244(d)(2) provides that the limitations period

described in § 2244(d)(1) is tolled only “through the period of

continuance . . . of [the State proceedings],” “until the. . .

30

completion of [the State proceedings], or only so long as the

State proceedings are “in continuance” or “not yet decided.”

This Court should reaffirm the holding of Carey in this

context. Section 2244(d)(2) fully comports with AEDPA’s

comity interest, without unduly impacting AEDPA’s finality

interest, only if the tolling period described in the statute is

limited to the time necessary for a state prisoner’s pursuit of state

remedies. “By tolling the limitation period for the pursuit of

state remedies . . . § 2244(d)(2) provides a powerful incentive for

litigants to exhaust all available state remedies before proceeding

in the lower federal courts.” Duncan, 533 U.S. at 180. “At the

same time, the provision limits the harm to the interest in finality

by according tolling effect only to ‘properly filed applications for

State post-conviction or other collateral review.’” Jd. at 179-80.

A state prisoner’s decision to petition this Court for a writ of

certiorari from a State court’s denial of “state remedies”

implicates different concerns. In many respects, it implicates the

same concerns as a subsequent habeas petition because it

represents an attack in federal court on the integrity of a state

court judgment which, until resolved, defeats the finality of the

state court judgment. Accordingly, Day’s construction of §

2244(d)(2) contravenes the purposes of AEDPA and §

2244(d)(2) to the extent it extends the tolling period beyond the

conclusion of State court proceedings.

Day’s construction of § 2244(d)(2), while championed by the

Sixth Circuit in Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir.

2003) (en banc) (Martin, J., writing for majority in 6-5 decision),

cert. denied, 541 U.S. 1070 (2004), has been explicitly

repudiated by each of the ten other circuits to have considered

the issue. See David v. Hall, 318 F.3d 343, 345 (ist Cir.), cert.

denied, 540 U.S. 815 (2003); White v. Klitzkie, 281 F.3d 920,

924 (9th Cir. 2002); Smaldone v. Senkowski, 273 F.3d 133, 137-

38 (2d Cir. 2001), cert. denied, 535 U.S. 1017 (2002); Crawley

31

v. Catoe, 257 F.3d 395, 401 (4th Cir. 2001), cert. denied, 534

U.S. 1080 (2002); Stokes v. District Att'y, 247 F.3d 539, 542 (3d

Cir.), cert. denied, 534 U.S. 959 (2001); Snow v. Ault, 238 F.3d

1033, 1035-36 (8th Cir.), cert. denied, 532 U.S. 998 (2001);

Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000), cert.

denied, 532 U.S. 950 (2001); Coates v. Byrd, 211 F.3d 1225,

1227 (1 1th Cir. 2000), cert. denied, 531 U.S. 1166 (2001); Ott v.

Johnson, 192 F.3d 510, 513 (Sth Cir. 1999), cert. denied, 592

U.S. 1099 (2000); Rhine v. Boone, 182 F.3d 1153, 1156 (10th

Cir. 1999), cert. denied, 528 U.S. 1084 (2000).

The clear majority view is that a petition for a wnt of

certiorari to the United States Supreme Court is simply not an

application for state review. Section 2244(d)(2) only tolls time

when “‘a state prisoner is attempting, through proper use of state

court procedures, to exhaust state court remedies,” and that time

spent pursuing a federal writ is not included in the tolling period

described in § 2244(d)(2). E.g., White, 281 F.3d at 924; see also

Crawley, 257 F.3d at 400; Rhine, 182 F.3d at 1155-56. This

view is supported by the text of AEDPA and the policies of

comity, federalism and finality that govern habeas proceedings.

Accordingly, if the Court decides to address this issue, it should

reject Day’s argument and adopt the clear majority view of the

circuits.

32

CONCLUSION

For the foregoing reasons, Respondent respectfully requests

that the decision of the Eleventh Circuit affirming the district

court’s dismissal of Day’s petition for wnt of habeas corpus be

affirmed,

RESPECTFULLY SUBMITTED,

CHARLES J. CRIST, JR.

Attorney General of Florida

CHRISTOPHER M. KISE

Solicitor General of Florida

Fla. Bar. No. 0855545

Counsel of Record

LYNN C. HEARN

Deputy Solicitor General

Fla. Bar No. 0123633

ERIK M. FIGLIO

Deputy Solicitor General

Fla. Bar No. 0745251

CASSANDRA K. DOLGIN

Assistant Attorney General

Fla. Bar No. 0644390

Office of the Attorney General

Suite PL-01, The Capitol

Tallahassee, FL 32399

(850) 414-3681

(850) 410-2672 (fax)

33