Reply Brief — Day v. McDonough

(2) FILED

No. 04-1324 FEB 16 2006

SUPREME COURT, U.S. |

IN THE

Supreme Court of the Gnited States

PATRICK A. DAY,

Petitioner,

Vv.

JAMES V. CROSBY, JR., SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

- —— mmm

On Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

REPLY BRIEF FOR THE PETITIONER

ANDREW H. SCHAPIRO J. BRETT BUSBY

Mayer, Brown, Counsel of Record

Rowe & Maw LLP JEREMY GASTON

1675 Broadway AMY P. MOHAN

New York, NY 10019 Mayer, Brown,

. (212) 506-2900 Rowe & Maw LLP

700 Louisiana St., Suite 3600

Houston, TX 77002

(713) 221-1651

Counsel for Petitioner

tennis ie

TABLE OF CONTENTS

SE Ge Fie I eR eceiitniicnctncereeniincnatiliatimccnrsintesiinities ii

I. THE DISTRICT COURT ERRED BY

DISMISSING DAY’S PETITION SUA

SPONTE BASED ON A DEFENSE THE

STATE NEVER ADVOCATE .............ccccccscsosseseeesseeses 2

A. AEDPA’s Text, Applicable Rules, And

Relevant Policies Show That Courts

May Not Impose A Waived Limitations

NS I CII srcsictmhinscstnttantencenthtannnnstanitenane 3

B. The State’s View Ignores Congress’s Choices

And Would Have Untoward Consequences............. 1]

Il. THE DISTRICT COURT ERRED BY

DISREGARDING THE STATE’S EXPRESS

CONCESSION OF TIMELINESS .................csscesesesseee 14

Ill. ALTERNATIVELY, THE PROPER

DISCRETIONARY FACTORS DO NOT

EES Ts cechinmnsserensiccnineometpinninecnninin 18

Fae aA sintapssnsnitacmnenpnivecdsiniienimiatnadineibeneagamneneueanetel 20

(I)

TABLE OF AUTHORITIES

Page(s)

Cases

Abela v. Martin,

348 F.3d 164 (6th Cir. 2003) (en banc)................0008 15, 17

Arizona v. California,

FIO WS. FOB (ATG) nccecscccreosesrescsescsecsrscscosesoscsvsesezcenase 3,19

Boardman v. Estelle,

957 F.2d 1523 (9th Cir. 1992) (per Curiam).........s0000se000 1]

Calderon v. Ashmus,

ee Pe iineiciesssiideitadettirantntpiiereneniiinsitancainemantititans 10

Carey v. Saffold,

ee ID cinthiinniieninlpiipicentinindnnintincintnitiecitninndiii 17

Carlisle v. United States,

ee ee ii enkcinideliniiaerintinsonnnecinitinsightinetiititiinie’ 3

Castro v. United States,

I ell tiaicidecccinitciendininitninteinieseiianangnniiitiaiins 6

Cent. Va. Cmty. Coll. v. Katz,

Be ate aI hiacciiniriceniinintettansichatieinnnaiiiis 17

Chevron U.S A., Inc. v. Natural Res. Def. Council, Inc.,

a es SI EE iictiscicicisiithintilecierniniiatisanideiinetadamemenamemiines 12

Christiansburg Garment Co. v. EEOC,

SR | SESE RE ne ee enna eT 8

City of Sherrill v. Oneida Indian Nation,

a ei gs Oe III iicrniccidcihiciiccisbieanntiabhitndiatienuttbetonntiaibies 16

Clay v. United States,

fg S| ERECT 17

Esslinger v. Davis,

ee ee Oe als, Se Recertccentntececennennscsetenniutonnintatt 1]

TABLE OF AUTHORITIES - continued

Page(s)

Fed. Ins. Co. v. Gates Learjet Corp.,

apm Ree fk ree noe 15

Finn v. United States,

Sa EEE CSOT Arniniasirnieinagnsnnrineninteieniinbenpineinie 1]

Gonzalez v. Crosby,

ae ek ate ee SE cciecinceeniencenepnimnepenenesivansinweiions ye

Granberry v. Greer,

Se Ws te e aictniatttieicsiccecionnctoninsin’ 2, 10, 14, 18, 20

Grand Rapids Plastics, Inc. v. Lakian,

188 F.3d 401 (Gth Cir. 1999).........cccccccrsccosessosesseresseseroresees 4

_ Hardiman v. Reynolds,

ie oe ft. RR ree 19

Harris v. Reed,

Ee ccna tadinincereineisienscatieneneianviinieanieitl 9

Haskell v. Washington Twp.,

ee 8 3

Henderson v. U.S. Fid. & Guar. Co.,

GD 2G SoD CO Ge, Fa ecesccencsserecccvesvnersesccseseravesneevse 20

Howard v. Bouchard,

one 19

INS v. St. Cyr,

Se hs init diieitcichiniiniesthnnittneeinhiicininannitiiantiaininie 5

Johnson v. Zerbst,

Fe a edi ntbitineanertuttinuttemnitaitiianssniiviiniinganate 14

Kolstad v. Am. Dental Ass'n,

A Rs sees 16

iv

TABLE OF AUTHORITIES - continued

Page(s)

Link v. Wabash Railroad Co.,

SHO US. GG CITED cccecevitccenscsctivincevsincvcctsnesisiesninniinasins 3, 6

Lonchar v. Thomas,

ype Be | ee 12, 13, 14

Long v. Wilson,

393 F.3d 390 (3d Cir. 2004)......ccccccccecssrerercesccessseeseees 15, 19

Martin v. Franklin Capital Corp.,

eS Re lr A See Se Sr 18

Mayle v. Felix,

bay Sty. -[r _ Re 2,9

McCleskey v. Zant,

GED UL. Se Cae aR cictierenenenennennnia 9, 10, 14, 19

Molinaro v. New Jersey,

396 U.S. 365 (1970) (per CUTIAM) ........cceeeereereeeeserereeees 3

Morissette v. United States,

SED UT. BOE Ce caveccntreveserectvnincrentveneviscvinntidiaiiabiiiaiaen 5

Nardi v. Stewart,

354 F.3d 1134 (9th Cir. 2004)...........cccccccesssssrersrereeesees 4,11

Ohio v. Robinette,

SID UF. FO CI vecetinscictcitttcntestcrreniontvienctineiniatiniaaaiains 16

Pliler v. Ford,

SO US, TED CO wantcscittntsccntesinnesctevctinsinniaiiidinans 7

Procunier v. Navarette,

GOO UES. SES GI ccteticitencinerestcensncvseveesccinccmeepeinistintenta 16

Retzer v. Wood,

DED UES. CES CAGED wiceencstnncinctinticncicsenenesnctiiinimibain i)

Vv

TABLE OF AUTHORITIES - continued

Page(s)

Rideau v. Whitley, z

- fn Le 20

Royal v. Taylor,

A ETE LE SETS TT 15

Russello v. United States,

I 17

Scott v. Collins,

EK eee 4,11

Smith v. Horn,

EET RENE ane oe a 15

United States v. Barron,

, eeuumenecciedl 19

United States v. Bendolph,

409 F.3d 155 (3d Cir. 2005) (en banc)..............ccceceeeeeeee 4,7

United States v. Burke,

ETT CPT Caer ene ee Camm EON 3

United States v. Giovannetti,

I slice 15

United States v. Olano,

IRE one an Coe hae 14

United States v. Pryce,

el ES oon a &

United States v. Wiseman,

297 F.3d 975 (10th Cir. 2002) ..........ccccccceccecsceeseeeeees 7,9, 19

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,

ee 4

vi

TABLE OF AUTHORITIES - continued

Page(s)

Vance v. Terrazas,

og | EER ee me 16

Wagner v. Fawcett Publ’ ns,

ag Fe Ee ee 4

Yeatts v. Angelone,

rE 15

Statutes

EEE CSET Neo Cre a TE ee 12

Se ae Fr IT ertibiiesichieeenicichratiiinitntanntiiienaeiidiatdat des 17, 18

TI HRS TK SNe 2 12

ees Oe Se clictiaiindinteadeipcictitidiiengasdaditamesiniiitiinsiit i 9

EIS Le EY RTE 12

i I EE ee ee Cae 2,3

AAR aY De Le aD PIE EE 16

EE STEREOS, NER 12

Sa eins OS Soot cictiaitinterticcnitadiomsiainatipunaiomnbbaainibentadaeds 12

TP ipsaonateaninets 12

Rules

Re Fk RIN ee Se Oe ee 3-4

Peele TEES: OUD cdetsiensensticatinnineiithisestchteitinsisststtiiitn si taatiinin 3-4

vii

TABLE OF AUTHORITIES - continued

Page(s)

nT Te re 2, 5,6

Be, GE Fe Bie ccesittnctascnntnnnnsnccnesstscnensiscnnetasnitarnimantiontes 3

PRE, FE. GREIIA, FP. SIG canncnsermneninecssnsnensstecicncsnesansnnsscinintscsines 12

ST passim

BR Be Drccscnnctctttsnpemsnnatenememnanestainnisianeneuatin 5,9

BG I DB secrsntegstictneminenetpicncctercesseaststatmnnmninicsesings 2,5,6

Beam. Ca, BR. BG, BG cecenessasccnmecssssaseseseesesspessenenassstonscensssanseneons 16

Other Authorities

5 Charles A. Wright & Arthur R. Miller,

Federal Practice & Procedure § 1278 (3d ed. 2004) ........ 3

REPLY BRIEF FOR THE PETITIONER

Neither the State nor its amici make any effort to defend

the decision below. The Eleventh Circuit held that: (1)

AEDPA’s statute of limitations is not controlled by ordinary

waiver rules (Pet. App. 4a); and (2) under Habeas Rule 4 and

principles of comity, finality, and federalism, courts have an

“obligation” to dismiss untimely petitions sua sponte. Id. at

Sa. As to the first holding, the State now concedes (Br. 5, 21)

that AEDPA’s limitations period is an affirmative defense

that can be waived. Here, the State waived the defense by

failing to raise it in the district court, as well as by conceding

in its answer that Day’s petition was timely.

With respect to the second holding, the State does not ar-

gue that Habeas Rule 4 applies post-answer. Moreover, it

concedes (at 14) that a court is not obligated to impose a

waived limitations defense. Instead, it now takes the position

(at 3, 8) that unwritten policies of finality, comity, and feder-

alism give a court inherent discretionary authority to raise

and impose such a defense. Accordingly, the remaining ques-

tion for this Court is whether the State’s waiver forecloses

dismissal or is merely one factor the lower courts should

have weighed in deciding whether to impose the limitations

defense sua sponte. Because the Eleventh Circuit took nei-

ther approach, reversal is required.

In reversing, this Court should hold that it is error for a

court to raise and impose a waived limitations defense sua

sponte, especially when the State expressly concedes timeli-

ness. AEDPA’s text, applicable procedural rules, and the pol-

icy balance struck by Congress all support this conclusion.

Yet even if this Court disagrees, concluding insiead that

courts have discretion to impose the defense, the State has

not overcome the strong presumption against doing so here.

At minimum, the Court should prescribe factors to guide

such discretion and remand for the lower courts to apply

them.

2

I. THE DISTRICT COURT ERRED BY DISMISSING

DAY’S PETITION SUA SPONTE BASED ON A DE-

FENSE THE STATE NEVER ADVOCATED.

Paying little heed to the text of the statute and rules, the

State attempts to bring this case within the holding of Gran-

berry v. Greer, arguing that principles of finality, comity,

and federalism give courts inherent authority not only to raise

a waived limitations defense but also to impose it without

any input from the party to whom it belongs. Yet the exhaus-

tion requirement addressed in Granberry is different from

limitations; not all habeas defenses were created equal.

While exhaustion is a unique common-law limit on ha-

beas relief created by this Court and given special properties

based on comity and federalism,' AEDPA’s statute of limita-

tions is exclusively a creature of Congress. 28 U.S.C.

§ 2244(d). Consideration of Congress’s intent with respect to

sua sponte imposition of limitations starts with the text of the

Statute and the relevant procedural rules. Unlike the exhaus-

tion requirement, the words chosen by Congress here—

“period of limitation”—have a settled meaning outside the

habeas context and under the Civil Rules. Pet. Br. 9-14.

Civil Rule 81 and Habeas Rule 11 confirm that this

meaning applies in the habeas context because it is “not in-

consistent” with the habeas statutes and rules. Pet. Br. 19-31.

This Court had no reason to conduct a Rule 81/11 analysis in

Granberry because the exhaustion requirement is unique to

habeas cases. But when the matter in question is addressed

by a Civil Rule, this Court’s decisions begin with that rule

and consider whether the habeas statutes or rules “limit [its]

application * * * to the present case.” Gonzalez, 125 S. Ct.

2646; Mayle, 125 S. Ct. at 2569-70, 2574-75. The State and

' Granberry, 481 U.S. at 133 (focusing on common-law “history of

the exhaustion doctrine” to determine whether courts couid insist

on exhaustion sua sponte), Pet. Br. 40-41. Procedural default, non-

retroactivity, and abuse of the writ were also created by this Court.

3

its amici ignore this analytical approach and the settled

meaning of limitations.

A. AEDPA’s Text, Applicable Rules, And Rele-

——vant Policies Show That Courts May Not Im-

pose A Waived Limitations Defense Sua Sponte.

1. Under the adversary system of the Civil Rules, a “pe-

riod of limitation” like the one Congress chose in § 2244(d)

is a non-jurisdictional affirmative defense. Civil Rules 8(c),

12(b), and 15 require a defendant to plead limitations in an

answer or amended answer, and courts hold the defense

waived if it is not raised in compliance with these rules. Pet.

Br. 9-10, 30-31.

“Since [limitations] is a waivable defense, it ordinarily is

error for a district court to raise the issue sua sponte.” Has-

kell, 864 F.2d at 1273; 5 Wright & Miller § 1278, at 644-45

& n.12 (waiver of limitations defense “results in * * * its ex-

clusion from the case’’); Tex. Br. 1 (“courts generally do not

dismiss cases based on waived affirmative defenses’’); Pet.

Br. 13-14 & n.17. This conclusion follows from the Civil

Rules as well as the fundamental adversary “rule that points

not argued will not be considered.” Burke, 504 U.S. at 246

(Scalia, J., concurring).

The State complains that this analysis gives short shrift to

a court's inherent authority. Not so. Day certainly agrees that

courts have inherent powers, particularly in areas where they

have “the sanction of wide usage” and “ancient origin” (Link,

370 U.S. at 630-31), where there is a fundamental breakdown

in the adversary process,’ or where the court’s actions are

unconstrained by existing rules. See Fed. R. Civ. P. 83(b);

Carlisle v. United States, 517 U.S. 416, 425-28 (1996). But

limitations does not fall within any of these categories. Civil

* E.g., Arizona v. California, 530 U.S. 392, 412 (2000) (res judi-

cata “in special circumstances”); Molinaro v. New Jersey, 396

U.S. 365, 366 (1970) (per curiam) (failure to defend by fugitive);

Link, 370 U.S. at 629 (failure to prosecute).

4

Rules 8, 12, and 15 specifically address how the limitations

defense should be raised, and the authorities cited above con-

firm that sua sponte dismissal based on limitations is far

from widely used.’ Accordingly, the notion of inherent power

does not alter the conclusion that it is error for a court to im-

pose a waived limitations defense sua sponte.*

2. When Congress chose to include the settled civil con-

cept of a “period of limitation” in AEDPA, it adopted this

principle that sua sponte treatment is error. Pet. Br. 15-18,

22; Scott, 286 F.3d at 931. As this Court recently confirmed,

“[W]here Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries

of practice, it presumably knows and adopts the cluster

of ideas that were attached to each borrowed word in the

body of learning from which it was taken and the mean-

ing its use will convey to the judicial mind unless oth-

erwise instructed. In such case, absence of contrary

direction may be taken as satisfaction with widely ac-

cepted definitions, not as a departure from them.”

* Aside from Bendolph, the State and its amici cite only one case in

which a court dismissed sua sponte based on a waived limitations

defense outside the PLRA context (where such dismissals are au-

thorized by statute, see Pet. Br. 27). In that case, the other defen-

dants—not the court—raised the defense. Grand Rapids Plastics,

Inc. v. Lakian, 188 F.3d 401, 405, 407 (6th Cir. 1999).

* Some courts express this conclusion in terms of power or author-

ity rather than error. E.g., Nardi, 354 F.3d at 1141 (district court

“lacks the authority” to dismiss petition as time-barred when State

fails to pleac limitations defense); Wagner, 307 F.2d at 412 (dis-

trict court “had no right” to apply waived limitations defense sua

sponte). Under either rubric, however, the result in this case is the

same: the district court’s judgment dismissing the petition sua

sponte should be reversed. Cf. Unitherm Food Sys., Inc. v. Swift-

Eckrich, Inc., 126 S. Ct. 980, 985 (2006) (court lacks power to or-

der relief absent proper motion by party); id. at 990 (Stevens, J.,

dissenting) (order may be abuse of discretion).

5

INS vy. St. Cyr, 533 U.S. 289, 312 n.35 (2001) (quoting

Morissette v. United States, 342 U.S. 246, 263 (1952)).

Civil Rule 81 provides a second reason why the Civil

Rules governing waiver and sua sponte imposition of the

limitations defense apply to habeas cases. While Habeas Rule

11 states that federal courts “may” apply the Civil Rules in

habeas cases, Civil Rule 81(a)(2) implements this authority

by declaring that the Civil Rules “are applicable” to habeas

proceedings “to the extent that the practice * * * is not set

forth in statutes of the United States * * * or [the Habeas

Rules], and has heretofore conformed to the practice in civil

actions” (emphasis added).

The State has no response to Rule 81 and does not dis-

pute that its conditions for applying the Civil Rules on

waiver and sua sponte treatment are met.’ As our opening

brief explains (at 20-21), habeas pleading practice was his-

torically adversarial and placed the burden on the State to

plead reasons why the writ should not issue. See also

NACDL Br. 16-17 n.3 (collecting pre-Civil Rules cases re-

garding pleading and waiver of habeas defenses).

Furthermore, nothing in “the text of” the habeas statute or

rules indicates that Congress intendec to depart from the tra-

ditional principle that an unpleaded limitations defense may

not be ‘mposed sua sponte. Gonzalez, 125 S. Ct. at 2646; see

Pet. Br. 21-31. The summary dismissal provisions of Habeas

Rule 4 do not apply post-answer, and new Habeas Rule 5

confirms the State’s duty to raise the limitations defense in

its answer. Pet. Br. 28-30. The State asserts (at 18-19) that

nothing in these rules or the habeas statute eliminates a

court’s discretion to raise a waived limitations defense sua

sponte, but it identifies no textual basis for inferring that such

discretion exists in the first place. Under Rule 81 and the

* Indeed, the State concedes (at 5) that ordinary waiver rules appl;

to the habeas statute of limitations.

6

doctrine of implied repeal, statutory silence is not enough to

defeat the application of the Civil Rules, Pet. Br. 33.

The State also attempts to avoid the civil principle against

sua sponte treatment by quibbling about the degree to which

habeas proceedings are civil in nature. That is beside the

point. Day agrees that there are significant distinctions be-

tween civil and habeas proceedings. Because Congress chose

to adopt the civil concept of a “period of limitation” in

AEDPA, however, the statute should be interpreted accord-

ingly. Moreover, under Civil Rule 81, Habeas Rule 11, and

this Court’s cases, the Civil Rules apply to habeas proceed-

ings to the extent they are not inconsistent with the habeas

statute or rules. Pet. Br. 19-20. The State has shown no such

inconsistency here.

3. The State’s brief largely ignores the analysis above,

arguing instead that its non-textual interest in finality (and

through it comity and federalism) gives a habeas court dis-

cretion to impose a waived limitations defense sua sponte

without any input from the party to whom it belongs. This

argument, however, does not alter the conclusion that sua

sponte dismissal based on limitations is not a “well-

acknowledged” inherent power. Link, 370 U.S. at 631. Nor

does it provide any indication that Congress intended to re-

place the traditional civil principle that it is error for a court

to impose a waived limitations defense sua sponte with a

new discretionary practice.

Yet even if this Court were to consider non-textual poli-

cies, the State’s interest in finality would not trump the ad-

versary system. Our “adversary system is designed around

the premise that the parties * * * are responsible for advanc-

ing the facts and arguments entitling them to relief.” Castro,

540 U.S. at 386 (Scalia, J., concurring in part and concurring

in judgment) (emphasis added). As discussed above, the his-

tory of habeas pleading practice shows that it is an adversary

process. Moreover, this Court recently confirmed that the ad-

versary system governs AEDPA’s limitations defense spe-

7

cifically. In Pliler v. Ford, the Court held that having judges

“advise” pro se litigants about how to avoid that defense

“would undermine [their] role as impartial decisionmakers.”

542 U.S. at 23'. Instead, “calculating [the AEDPA] statute[]

of limitations [is a] task[] normally and properly performed

by trained counsel.” /bid.

The State has no answer to Pliler. It does not dispute that

the adversary process is equally undermined when a judge

investigates whether a State litigant has a viable limitations

defense that it failed to raise and, if so, dismisses the petition

sua sponte. Indeed, it would be fundamentally unfair for a

court to aid the State’s lawyer but not a pro se petitioner with

“the potentially burdensome, time-consuming, and _fact-

intensive task of making a case-specific investigation and.

calculation of * * * the AEDPA limitations period.” Pliler,

542 U.S. at 232. A State litigant must play by the same rules

as other litigants; it is not entitled to favored treatment.

Moreover, it is especially damaging to the adversary sys-

tem when a court goes beyond simply flagging a defense for

the parties’ belated consideration (cf. Bendolph, 409 F.3d at

168) and actuatty asserts and adjudicates it without any input

from the party to whom it belongs. United States v. Wiseman,

297 F.3d 975, 980 (10th Cir. 2002). That is precisely what

happened here: the magistrate judge did not merely “raise”

the limitations defense and have “some say” in whether to

apply it, as the State would have this Court believe. See

Resp. Br. 3, 5, 8, 11, 15. Instead, the judge overrode the

State’s express concession of timeliness and imposed the de-

fense sua sponte without ever considering whether the State

wished to pursue the defense. In so doing, the judge stepped

into the role of advocate for the State, depriving Day of an

impartial forum and stripping the State of the prerogative to

determine its own defenses.” The adversary system should

not tolerate such actions.

° The State incredibly asserts (at 24) that there was no reason for it

to advocate dismissal after the judge's initial order regarding limi-

8

Congress regularly entrusts the effectuation of even high-

priority policies to the adversary process. Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 419 (1978). When it

intends to create an exception to that process, it is generally

quite explicit.’ /bid. (congressional intent to distort adversary

process “cannot be lightly assumed”); United States v. Pryce,

938 F.2d 1343, 1353 (D.C. Cir. 1991) (Silberman, J., dissent-

ing in part). As discussed above, there -is no indication that

Congress intended to depart from the traditional princip'e

that it is error for a court to impose a waived limitations de-

fense sua sponte. Accordingly, the State’s policy interest in

finality does not support sua sponte dismissal.

4. The State’s appeal to the virtues of finality is also

flawed because it: (1) fails to distinguish between the value

of finality in general versus in the marginal cases where a

viable limitations defense has been waived; and (2) fails to

account for other policies that weigh heavily against sua

sponte dismissal. These competing values are best reconciled

by holding that it is error to dismiss a habeas petition sua

sponte based on a waived limitations defense.

Day agrees that AEDPA’s limitations defense promotes

finality, and there are many procedures in place to ensure that

this policy is protected in run-of-the-mine cases. For exam-

ple, under Habeas Rule 4, a court may dismiss a facially un-

timely petition summarily before an answer is filed, or it may

authorize the State to file a motion to dismiss based on limi-

tations. Alternatively, the State may plead the limitations de-

fense in its answer or (under certain circumstances) in an

tations because it agreed the petition was untimely. The judge, of

course, had no way to know of the State’s tacit agreement.

’ Thus, the adversary system is the background principle unless it

is expressly altered by statute or rule. This view is perfectly consis-

tent with Congress’s decision to mandate certain pre-answer sua

sponte dismissals under Habeas Rule 4. Cf. U.S. Am. Br. 15.

9

5 . .

amended answer. Thus, post-answer sua sponte dismissal

generally is not necessary to accommodate finality.

In the rare case where an untimely petition survives these

procedures, the policies against imposing the waived limita-

tions defense sua sponte vastly outweigh any marginal final-

ity benefit from sua sponte dismissal.’ These policies include

judicial neutrality and restraint, the adversary system, effi-

ciency,'” the uniform application of procedural rules, and the

importance of keeping the habeas remedy open to meritori-

ous claims. Pet. Br. 35-39; McCleskey, 499 U.S. at 492-93. In

particular, the State’s proposed discretionary standard for sua

sponte dismissal is vague and likely to create problems of

efficiency and uniformity, spawning wasteful satellite litiga-

tion on matters far removed from the merits and yielding in-

consistent results. Pet. Br. 38-39.

On the other hand, applying the civil rule against sua

sponte dismissal in these rare cases burdens finality only

minimally, if at all. Pet. Br. 42-44. Tellingly, the State has no

response to this Court’s decisions in Gonzalez and Mayle,

* Habeas Rule 5; Fed. R. Civ. P. 15(a); see also 28 U.S.C. § 2243.

Of course, if this case is remanded, it would be far too late for the

State to amend its answer to plead the limitations defense. Retzer

v. Wood, 109 U.S. 185, 187-88 (1883); Pet. Br. 30-31; p. 15, infra.

” See Harris v. Reed, 489 U.S. 255, 264 (1389) (holding that “ap-

plying [the rule at issue] to habeas burdens thle] interests [of final-

ity, federalism, and comity] only minimally, if at all. The benefits,

in contrast, are substantial.”).

As amicus Texas notes (at 3, 17-18, 20), the greatest amount of

resources usually have been expended once the merits of a habeas

petition are fully briefed (as they were here) because petitions are

typically decided on the papers. At this point, it often will be

highly inefficient for a court to undertake sua sponte the burden-

some, time-consuming, fact-intensive, and error-prone task of cal-

culating AEDPA’s limitations period instead of deciding the fully-

briefed merits issues. Pet. Br. 38; Wiseman, 297 F.3d at 980.

10

which confirm that finality is not offended when a generally-

applicable civil rule provides an exception to the limitations

period. Pet. Br. 25, 43. Furthermore, the finality goal of

AEDPA’s limitations period is not to produce default but to

stimulate prompt federal review of the merits. /d. at 24; se>

Resp. Br. 27 (“Congress did not intend AEDPA to operate as

a ‘gotcha’ system of justice”). Given that non-capital peti-

tioners like Day already have ample incentives to file timely

(Pet. Br. 43 n.39), the threat of sua sponte dismissal is not

necessary to promote this goal.

Importantly, Granberry had no need to reconcile compet-

ing values because it did not recommend dismissal of unex-

hausted petitions with prejudice. Rather, it advised courts to

consider requiring additional state proceedings prior to fed-

eral review, thereby accommodating comity and federalism

without harming the other values discussed above. 481 U.S.

at 134. Dismissing a petition sua sponte based on a waived

limitations defense, however, tramples those values with lit-

tle corresponding benefit to finality. Accordingly, this Court

should hold that such a dismissal is error.

5. The State does not press comity and federalism as in-

dependent interests justifying sua sponte dismissal, but rather

treats them as tag-alongs to finality. See Resp. Br. 6, 15. This

case is thus quite different from Granberry, where comity

and federalism were central. 481 U.S. at 133-34.

Unlike exhaustion and the other common-law doctrines

on which the State relies, AEDPA’s statutory limitations de-

fense is not a mechanism for deference to state courts and

their procedures. The State attempts (at 17) to characterize

the defense as “a ground that the State did not have the op-

portunity to address at a prior, appropriate time,” McCleskey,

499 U.S. at 493, but that is incorrect. Instead, the defense

cuts off federal review altogether based on a collateral issue

of timing that state courts never consider. Pet. Br. 41; see

Calderon v. Ashmus, 523 U.S. 740, 747-48 (1998). Accord-

ingly, limitations does not implicate comity and federalism.

The State’s only involvement with the federal limitations

defense is as a litigant. As our opening brief explains (at 37),

a State litigant is in a far better position than a court to decide

whether asserting the limitations defense would serve its in-

terests in comity, federalism, and finality. Indeed, there is no

reason to believe the State inadequately protects these inter-

ests as a general matter; they certainly are not beyortd its con-

cerns as a party. Cf. Resp. Br. 5-8. Thus, there is no reason to

saddle federal courts with the difficult, time-consuming task

of calculating AEDPA’s limitations period on their own. See

Pet. Br. 38. When the State waives the limitations defense,

“the district court should assume that the waiver is justified.”

Esslinger, 44 F.3d at 1528." Curing that waiver through sua

sponte dismissal is reversible error. Pet. Br. 45; Nardi, 354

F.3d at 1142; Scott, 286 F.3d at 931.

B. The State’s View Ignores Congress’s Choices

And Would Have Untoward Consequences.

1. The State’s arguments in favor of discretionary sua

sponte dismissal misunderstand the nature of a limitations

defense. In contrast to common-law restrictions like exhaus-

tion, a period of limitation is not a “prohibition” on federal

habeas relief (Resp. Br. 16), and it “does not operate by its

own force as a bar” to review. Finn v. United States, 123

U.S. 227, 232 (1887). Rather, it is merely a claim-processing

rule that defines the time for bringing suit, and its benefits

belong to individual parties. Pet. Br. 9; Civ. Pro. Profs. Br.

24. Because limitations is not a flat ban on habeas relief, a

court need not preserve it by acting sua sponte.

Congress understood this difference between a “period of

limitation” and common-law restrictions on granting the writ,

and it used prohibitive language only for the latter when it

'' See also Boardman v. Estelle, 957 F.2d 1523, 1537 (9h Cir.

1992) (per curiam) (“Concerns of federalism and respect for a

state’s criminal judgments are marginal here because the state

brought the problem on itself” by failing to raise defense).

12

codified them in AEDPA. With respect to exhaustion, for

example, Congress provided that the writ “shall not be

granted unless” state remedies have been exhausted, and it

expanded courts’ ability to raise exhaustion sua sponte by

limiting waiver. 28 U.S.C. § 2254(b). The statutory ana-

logues of nonretroactivity and abuse of the writ contain simi-

lar language. See 28 U.S.C. §§ 2244(b) (“shall be dismissed

unless”), 2254(d) (“shall not be granted * * * unless”).

Moreover, Congress explicitly required that certain capi-

tal habeas applications “must be filed * * * not later than 180

days after” the completion of direct review. 28 U.S.C.

§ 2263(a). In contrast, Congress provided that a “1-year pe-

riod of limitation shall apply” to habeas applications by state

prisoners generally. It did not say that the writ “shall not be

granted” unless an application is filed within one year, nor

did it say that an application “must be filed” not later than

one year after the relevant trigger date. This difference in

language signals that Congress intended to adopt an ordinary

statute of limitations defense, not a strict prohibition on ha-

beas relief that courts may be called upon to enforce sua

sponte after it has been waived.

2. As discussed on pages 8-9 above, there are many dif-

ferent procedures for winnowing out untimely petitions. If

the State thinks these existing procedures are not sufficient

and desires a different outcome based on certain policy con-

siderations, it should go to Congress or to the Advisory Com-

mittee. Lonchar, 517 U.S. at 328; Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 864 (1984).

This Court does not rewrite procedural rules by opinion.

When Congress concludes that certain policies call for an

exception to the adversary system, it explicitly authorizes sua

sponte action. E.g., 11 U.S.C. § 10S(a); Fed. R. Crim. P.

52(b); Habeas Rule 4; Pet. Br. 25-27. In the Prison Litigation

Reform Act (PLRA), for example, Congress provided for sua

sponte dismissal “at any time” if the court determines that the

prisoner failed to state a claim. 28 U.S.C. § 1915(e)(2).

13

Courts use this statute to dismiss PLRA cases sua sponte

based on limitations. U.S. Am. Br. 27.

In habeas cases, however, Congress balanced the relevant

policies and chose a “period of limitation”—a concept that

has a settled meaning and is governed by settled procedural

rules, including the principle that sua sponte dismissal based

on a waived limitations defense is error. Congress obviously

considered the subject of sua sponte dismissal, as it provided

for pre-answer summary dismissals under Habeas Rule 4. It

also included a safety valve in Civil Rule 15(a), which allows

defendants to resuscitate waived defenses in certain circuni-

stances by amending their answers.

But that is as far as Congress went. Its decision not to

provide for sua sponte dismissal of waived limitations de-

fenses at any time, as it did in the PLRA, is entitled to re-

spect. Because the above rules directly address sua sponte

dismissal and how waiver may be cured, Lonchar holds that

courts may not alter those rules through the exercise of gen-

eral equitable powers. 517 U.S. at 316. The State’s position

that certain policies are weighty enough to support an inher-

ent discretionary power of sua sponte dismissal should be

rejected as an impermissible attempt to undermine the bal-

ancing of interests undertaken by Congress. /d. at 327.

3. Finally, the State’s sweeping argument that finality,

comity, and federalism support a discretionary dismissal

power proves too much outside the exhaustion context,

where comity and federalism were directly at issue. The State

asserts (at 18) that courts have “discretion to raise [waived]

defenses” and “to deny relief” when “doing so advances the

interests of comity, finality, and federalism.” In its view (Br.

17), these interests “are implicated by any federal collateral

attack on a state court criminal judgment.” According to the

State, therefore, courts may dismiss or deny any habeas peti-

tion in order to protect the state judgment, regardless of what

the rules say. Not to be outdone, amicus United States makes

14

the astonishing argument (at 27-28) that compliance with

rules is an “empty formalism” with “no purpose.”

Obviously, that is not the law. As McCleskey recognizes,

a “background norm of procedural regularity [is] binding” in

habeas cases. 499 U.S. at 490. Indeed, the history of the writ

shows “the gradual evolution of more formal judicial, statu-

tory, or rules-based doctrines of law * * * that regularize and

thereby narrow the discretion that individual judges can

freely exercise.” Lonchar, 517 U.S. at 322. Contrary to the

State’s suggestion, courts are “not authorize[d] * * * to ig-

nore this body of statutes, rules, and precedents” or create

“ad hoc judicial exception[s]” to accommodate equitable

considerations such as comity, finality, and federalism. /d. at

323, 328. Adherence to these rules serves several important

purposes, including efficiency and uniformity. Pet. Br. 33-34,

37-39; Civ. Pro. Profs. Br. 21-22.

Because the State did not follow the rules for pleading

limitations, it procedurally defaulted the defense and must

bear the consequences. The district court erred in dismissing

sua sponte based on that waived defense.

il. THE DISTRICT COURT ERRED BY DISREGARD-

ING THE STATE’S EXPRESS CONCESSION OF

TIMELINESS.

1. In both Granberry and this case, the State defaulted the

defense at issue by failing to raise it in the district court. Yet

the State went further here: it expressly conceded in its an-

swer that Day’s “petition is timely; filed after 352 days of

untolled time.” J.A. 24. The district court erred by refusing to

give binding effect to this express waiver. Pet. Br. 44-50.

The State responds (at 22 n.4) that its concession does not

rise to the level of an “intentional relinquishment of a known

right,” which is the standard for express waivers of constitu-

tional rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

The waiver standard varies, however, depending on the right

at stake. United States v. Olano, 507 U.S. 725, 733 (1993).

1S

With respect to habeas defenses, many courts hold that plead-

ing the opposite of the defense—e.g., the petition is timely,

or the claims are exhausted and not procedurally defaulted—

constitutes an express waiver. Pet. Br. 44; Royal v. Taylor,

188 F.3d 239, 247 (4th Cir. 1999).

That holding is particularly appropriate here, as the State

acknowledges (at 22) that all the information it needed to

make the limitations calculation was attached to the answer

in which it conceded timeliness. An explicit concession

based on full information certainly should have more effect

than a silent failure to raise a defense. See Fed. Ins. Co. v.

Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987)

(leave to amend to add limitations defense denied where

party had been aware of facts for some time). Moreover, the

State cannot credibly argue that its concession was inadver-

tent given that it failed to assert the limitations defense even

after the magistrate judge issued his show-cause order. Cf.

Long, 393 F.3d at 401. Thus, the judge had no reason to sus-

pect that the State wished to retract its concession, and he

erred by failing to honor it.

2. The Eleventh Circuit attempted to neutralize the

State’s concession of timeliness by holding that it was “pat-

ently erroneous”? and thus no more binding than a default.'*

Pet. App. 4a. As we have consistently argued, however,

Day’s petition was in fact timely—or, at the very least, Abela

supports a substantial argument that it was timely. Pet. 19-20;

Pet. Reply 8-9; Pet. Br. 6-7, 45-50. Accordingly, the Elev-

'? Other courts of appeals agree with the Eleventh Circuit that

whether a waived defense is certain or debatable (or, conversely,

whether the argument against it is patently erroneous or substan-

tial) affects whether a court should overlook the waiver and raise

the defense sua sponte. E.g., Long, 393 F.3d at 399; Yeatts, 166

F.3d at 262: Smith v. Horn, 120 F.3d at 408-09; United States v.

Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991).

'* In this way, the Eleventh Circuit decided the issue of whether

Day's petition was timely. See Pet. Br. 6-7; cf. Resp. Br. 22, 29.

16

enth Circuit erred in excusing the State from its binding con-

cession by labeling it patently erroneous.

The State attempts to dodge the timeliness issue by argu-

ing (at 27-29) that it is not fairly included in the questions

presented. See Sup. Ct. R. 14.1(a). Its argument, however,

rests On a misstatement of our position. Day does not assert

the timeliness of his habeas petition as a free-standing ground

for reversal. Instead, he argues that its timeliness is “essential

to [the] analysis” of and “intimately bound up with”’* the

question whether “the State waive[d] a limitations defense to

[Day’s] habeas corpus petition when it * * * expressly con-

cede[d] that the petition was timely.” Pet. I (first question

presented). The Eleventh Circuit correctly recognized, and

the State’s brief shows (at 22-23), that the timeliness issue

plays a significant role in determining the effect of the State’s

express concession—i.e., whether it should be treated as a

binding waiver or disregarded as patently erroneous. More-

over, the State correctly argues (at 26-27) that timeliness af-

fects whether the sua sponte dismissal prejudiced Day. See

Part Ill, infra. For these reasons, the Court should decide

whether Day’s petition was timely (or at least whether there

is a substantial argument for timeliness).

3. The State’s argument against timeliness does not with-

stand scrutiny. It offers no response to the structural analysis

in our opening brief (at 47-50), which shows that 28 U.S.C.

§ 2244(d)(2) tolls limitations during the post-conviction cer-

tiorari period. Instead, it asks this Court to rewrite the statute.

Although § 2244(d)(2) states that limitations is tolled while

an “application for State post-conviction * * * review” is

pending, the State urges (at 31) that tolling should last only

'* Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 540 (1999); Procu-

nier Vv. Navarette, 434 U.S. 555, 559-60 n.6 (1978); see Ohio v.

Robinette, 519 U.S. 33, 38 (1996) (considering whether “issue

*** is a ‘predicate to an intelligent resolution’ of the question

presented” (quoting Vance v. Terrazas, 444 U.S. 252, 258-59 n.5

(1980)); see also City of Sherrill, 125 S. Ct. at 1490 1.8.

17

while “State court proceedings” are pending. In its view (at

30, 32), tolling always stops at the conclusion of state court

proceedings, regardless of whether the prisoner subsequently

files a certiorari petition concerning his state application and

regardless of this Court’s action on the petition.

The short response to this view is that Congress did not

write the statute that way. Russello, 464 U.S. at 23. “State”

refers to the character of the “application” as a remedy cre-

ated by state law, not to the character of the court presently

conducting proceedings on that application. Thus, an “appli-

cation” for post-conviction relief retains its state character

and remains pending while this Court can be called upon to

review a judgment on that application under 28 U.S.C.

§ 1257. Abela, 348 F.3d at 170-71. It becomes final—and

tolling ends—only when certiorari is denied or “the time for

filing a certiorari petition expires.” Clay, 537 U.S. at 527.

Under this rule, Day’s petition was timely and the State’s

concession of that fact is binding. Pet. Br. 45; Pet. App. 16a.

This Court did not hold otherwise in Carey, which only

considered whether an application remained pending between

two levels of state court proceedings. 536 U.S. at 217-18.

Carey’s statement that a state application remains pending

until it “has achieved final resolution through the State's

post-conviction procedures” (id. at 220) merely answers this

question; it does not exclude this Court’s review of a state

application from the tolling period. Cent. Va. Cmty. Coll. v.

Katz, 126 S. Ct. 990, 996 (2006) (court not bound by dicta

when point at issue was not debated in the prior case).

Moreover, restricting the tolling period to state proceed-

ings would yield harmful and absurd results. Given the run-

ning statute of limitations, many state prisoners would need

to file federal habeas petitions in district court while still pre-

paring Or awaiting a ruling on certiorari petitions that raise

the same claims in the state post-conviction context. These

duplicative proceedings would waste judicial resources and

produce troublesome conflicts of jurisdiction. In addition, it

18

is ridiculous to think that a state post-conviction application

transforms into a federal post-conviction application when

this Court can review it under 28 U.S.C. § 1257 and then re-

verts to a state application if this Court remands to state

court, leaving a tolling gap in between. Yet that is precisely

the consequence of the State’s position. The Court should

reject that position and hold that Day’s petition was timely.

Ill. ALTERNATIVELY, THE PROPER DISCRETION-

ARY FACTORS DO NOT SUPPORT DISMISSAL.

For these reasons, it is error for a district court to dismiss

a habeas petition sua sponte based on a waived limitations

defense. Given that the State not only failed to plead the de-

fense but affirmatively conceded timeliness and never advo-

cated dismissal even after the district court raised the

limitations issue sua sponte, dismissal certainly was im-

proper here. The Court should reverse and remand for con-

sideration of Day’s petition on the merits.

Yet even if the State were correct that Granberry gives a

district court discretion to impose a waived limitations de-

fense sua sponte, reversal would still be required because the

courts below never had an opportunity to exercise that discre-

tion under the proper standards. Instead, the Eleventh Circuit

erroneously held that it was obligated to impose the de-

fense.'° Thus, if the Court holds that Granberry applies to the

limitations defense created by Congress, it should prescribe

factors to guide the lower courts’ discretion. Martin vy,

Franklin Capital Corp., 126 §. Ct. 704, 710 (2005) (“Discre-

tion is not whim, and limiting discretion according to legal

'° Pet. App. 4a. Aside from rejecting Day's argument for equitable

tolling, the magistrate judge simply dismissed the petition after

concluding it was untimely. /d. at 10a-15a. He “made no attempt to

determine whether the interests of justice would be better served”

by imposing the limitations defense sua sponte on these facts.

Granherry, 481 U.S. at 136.

19

standards helps promote the basic principle of justice that

like cases should be decided alike.”).

The State concedes (at 21) that waiver of the limitations

defense (whether intentional or inadvertent) is a factor to be

considered in determining whether to raise the defense sua

sponte. Furthermore, this Court has recognized a “presump-

tion” against adjudication of issues not raised through normal

habeas procedures. McCleskey, 499 U.S. at 490;'° cf. Arizona

v. California, 530 U.S. 392, 412-13 (2000) (raising forfeited

defense sua sponte should be reserved for “special circum-

stances” to avoid “eroding the principle of party presentation

so basic to our system of adjudication”). This presumption is

particularly weighty here because the State affirmatively

conceded timeliness based on full information and never ad-

vocated the limitations defense even after the magistrate

judge raised it. Wiseman, 297 F.3d at 980 (“The govern-

ment’s complete failure to assert the * * * defense weighs

heavily against its sua sponte enforcement.”).

Another relevant factor, as the State points out (at 24), is

whether Day was prejudiced by the sua sponte dismissal.

Given that Day’s petition was timely as explained above,

dismissing it as untimely was obviously prejudicial. Other

elements of prejudice include the State’s unexplained 18-

month delay in advocating the limitations defense, which it

did for the first time in its appellees’ brief, and the significant

delay caused by the magistrate judge’s sua sponte decision to

invoke an inapplicable defense the State correctly did not

raise. Long, 393 F.3d at 399-400. That decision has forced

© See also Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005)

(courts should not “embrace sua sponte raising of procedural de-

fault issues as a matter of course”); United States v. Barron, 172

F.3d 1153, 1156-57 (9th Cir. 1999) (waiver of procedural default

overlooked only in “extraordinary circumstances”); Hardiman,

971 F.2d at 505 (“[I}n an adversarial system such as ours, it will

generally be better to consider only those defenses that are prop-

erly raised by the parties.”).

20

Day to sit in prison and litigate the limitations issue for over

two years in order to obtain resolution of his significant, fully

briefed claims for habeas relief on the merits.

Other factors that weigh against imposing the limitations

defense sua sponte here include: the substantial arguments

regarding timeliness (p. 15 & n. 12, supra); the lack of preju-

dice to the State, viewed in terms of the policies behind the

limitations defense, from Day’s (at worst) 23-day delay in

filing his petition;'’ and the balance of policies against sua

sponte dismissal (pp. 6-11, supra).

None of these factors was considered by the courts be-

low. If this Court wishes to apply them in the first instance, it

should hold that the State has not overcome the presumption

against imposing the waived limitations defense sua sponte

and remand for consideration of the merits. If the Court con-

cludes that the above factors are not dispositive, it should at

minimum list the factors it considers relevant and remand.

Giving the parties an opportunity to develop and present ar-

guments tailored to those factors will enable the lower courts

to exercise their discretion properly.'* Cf. Granberry, 481

U.S. at 136.

CONCLUSION

For these reasons, as well as those stated in our opening

brief, the court of appeals’ judgment should be reversed.

Respectfully submitted.

'’ Pet. Br. 12, 43 n.38; Tex. Br. 20; see Henderson v. US. Fid. &

Guar. Co., 620 F.2d 530, 534 (Sth Cir. 1980); cf. Rideau v.

Whitley, 237 F.3d 472, 478 (Sth Cir. 2000)

‘“ Some factors, such as the merits of Day’s underlying claims (see

Tex. Br. 20), have not been addressed by either party on appeal.

ANDREW H. SCHAPIRO J. BRETT BUSBY

Mayer, Brown, Counsel of Record

Rowe & Maw LLP JEREMY GASTON

1675 Broadway Amy P. MOHAN

New York, NY 10019 Mayer, Brown,

(212) 506-2900 Rowe & Maw LLP

700 Louisiana St., Suite 3600

Houston, TX 77002

(713) 221-1681

Counsel for Petitioner

FEBRUARY 2006