Amicus Curiae Brief — Day v. McDonough

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No. 04-1324 *

In the Supreme Court of the United States

OFFICS OF sr -

PATRICK DAY, PETITIONER

Vv.

JAMES V. CROSBY, JR., SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DOUGLAS HALLWARD-DRIEMEIER

Assistant to the Solicitor

General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the State forfeits a defense under the statute

of limitations governing habeas corpus petitions when it fails

to plead or otherwise raise that defense, but instead

mistakenly concedes that the petition was timely.

2. Whether, after a State has filed an answer to a habeas

petition, Rule 4 of the Rules Governing Section 2254 Cases

permits a district court to dismiss the petition swa sponte

based on a ground not raised in the answer.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ..................2ccceeeees 1

Pd nitdedbderegecsocedeusiaueseioveserecasece’ 2

IED soccasddceduconsusdnsacéocssdeies 6

Argument:

I. Adistrict court may dismiss an untimely habeas

IT.

ITT.

petition swa sponte, even if the State fails to raise

the defense in its answer .............---ccceeees 7

A. Congress has assigned a unique gatekeeper

function to federal district courts in habeas

GED dudeccanctncnsctestesicodbosiocescess 7

B. The courts’ gatekeeper role justifies

judicial initiative in enforcing the limita-

tions period placed on habeas petitions

even when the State fails to raise or

erroneously concedes the limitations issue ... 11

Rules &(c) and 12(b) of the Federal Rules of Civil

Procedure do not defeat the district court’s

authority to raise a habeas petition’s untimeliness

CE | GAS kdb anddeebeasdecenésdsccnicccces 15

A. The courts borrow Civil Rules in habeas

cases only to the extent that such

application is consistent with the overall

framework and policies of habeas corpus ..... 16

B. Applying Civil Rules 8(c) and 12(b) to bar

district courts from giving effect to

limitations on habeas review would be

inconsistent with habeas principles .......... 19

Allowing the district court to raise the statute of

limitations swa sponte, even after an answer has

been filed, does not conflict with general practice

under the Federal Rules of Civil Procedure ....... 25

(IIT)

IV

Table of Contents—Continued: Page

IV. Adistrict court should swa sponte dismiss a habeas

petition as untimely absent actual prejudice or

waste of judicial resources .............+seeeeee: 28

CSN «. cockccsdccecssacscsucsobeselionmiannsee 30

TABLE OF AUTHORITIES

Cases:

Acosta v. Artuz, 22) F.3d 117 (2d Cir. 2000) ........ 8, 9,11

Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990) .............. 27

Arcadia v. Ohio Power Co., 498 U.S. 73 (1990) ......... 26

Arizona v. California, 530 U.S. 392, supplemented,

Se Ges SEED oxdsavkddseccecosueusaoneaee 14

Banks v. Dretke, 540 U.S. 668 (2004) .............. 20, 21

Blonder-Tongue Labs., Inc. v. University

of Il. Found., 402 U.S. 313 (1971) .............0005- 26

Boyd v. Thompson, 147 F.3d 1124 (9th Cir.1998) ....... 13

Brecht v. Abrahamson, 507 U.S. 619 (1993) ............. 8

Brewer v. Marshall, 119 F.3d 993 (1st Cir. 1997),

cert. denied, 522 U.S. 1151 (1998) .................. 13

Burgin v. Broglin, 900 F.2d 990 (7th Cir. 1990) ......... 13

Calderon v. Thompson, 523 U.S. 5388 (1998) .......... 8,9

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

Caspari v. Bohlen, 510 U.S. 383 (1994) ............. 21, 22

Castro v. United States, 540 U.S. 375 (2003) ........... 28

Clay v. United States, 587 U.S. 522 (2003) .............. 2

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

Gastem, GIS GU. SERGE 0.00 cccccoceccecsecesecs 2

Cases—Continued: Page

Collins v. Youngblood, 497 U.S. 37 (1990) ....... 20, 21, 29

Commander Oil Corp. v. Barlo Equip. Corp.,

215 F.3d 321 (2d Cir.), cert. denied, 531 U.S.

es 26

Davis v. Bryan, 810 F.2d 42 (2d Cir. 1987) ............ 28

Day v. Liberty Nat'l Life Ins. Co., 122 F.3d 1012

(11th Cir. 1997), cert. denied, 523 U.S. 1119 (1998) .... 5

Day v. State, 746 So. 2d 1219 (Fla. Dist. Ct. App.

Di eiibninddibeeddehehenkeseseeesdndcokscencenss 2

Duncan v. Walker, 533 U.S. 167(2001) ................ 7

Eberhart v. United States, 126 S. Ct. 408 (2005) ...... . 25

Esslinger v. Davis, 44 F.3d 1515 (11th Cir. 1995) ....... 13

Felker v. Turpin, 518 U.S. 651 (1996) ................. 10

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

Foman v. Davis, 371 U.S. 178 (1962) ................. 26

Gonzales v. Crosby, 125 S. Ct. 2641 (2005) ............. 18

Granberry v. Greer, 481 U.S. 129 (1987) ... 12, 20, 21, 22, 23

Grand Rapids Plastics, Inc. v. Lakian,

188 F.3d 401 (6th Cir. 1999), cert. denied,

LE en eee 27

Gray v. Netherland, 518 U.S. 152 (1996) .............. 20

Hardiman v. Reynolds, 971 F.2d 500

ie acces 10, 13

Harris v. Nelson, 394 U.S. 286 (1969) .............. 16, 19

Haskell v. Washington Township, 864 F 2d 1266 (6th

DT icten dull tedbadbni cetmendsooneneews 28, 29

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

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

Cases—Continued: Page

Jackson v. Secretary for the Dep't of Corrs.,

292 F.3d 1347 (11th Cir. 2002) ............. 5, 13

Jenkins v. Anderson, 447 U.S. 231 (1980) ..... 20, 21

Kamen v. Kemper Fin. Servs., 500 U.S. 90 (1991) ....... 26

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

cert. denied, 535 U.S. 934 (2002) ................... 12

Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999) .... 10, 11, 15

Kontrick v. Ryan, 540 U.S. 443 (2004) ........... 6, 21, 29

Lonchar v. Thomas, 517 U.S. 314 (1996) ............... 18

Long v. Wilson, 393 F .3d 390 (3d Cir. 2004) ......... 11,13

Lorraine v. Coyle, 291 F.3d 416 (6th Cir.),

opinion corrected on denial of reh’g,

307 F.3d 459 (2002), cert. denied,

ee nme 12

Link v. Wabash R.R., 370 U.S. 626 (1962) ............. 12

Magouirk v. Phillips, 144 F.3d 348 (5th Cir.

SD titnduhedhinndatecetientinndensedtitseéoncen 13

Moyle v. Feliz, 125 S. Ct. 2562 (2005) .......... 7, 8, 16, 30

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

McMillan v. Jarvis, 332 F 3d 244 (4th Cir. 2008) ....... 14

Moore v. McDonald, 30 F.3d 616 (5th Cir. 1994) ........ 27

Mowbray v. Cameron County, 274 F.3d 269

(5th Cir. 2001), cert. denied, 535 U.S. 1085

DD Kidde. .cidiinbdndhienebbbenntigibekasuveoweees 27

Nardi v. Stewart, 354 F.3d 1134 (9th Cir. 2004) ......... 11

Nyland v. Moore, 216 F.3d 1264 (11th Cir. 2000) ........ 3

O'Brien v. Moore, 395 F.3d 499 (4th Cir. 2005) ......... 16

O'Neal v. McAninch, 513 U.S. 432 (1995) .............. 19

Phelps v. McClellan, 30 F.3d 658 (6th Cir. 1994) ........ 27

Vil

Cases—Continued: Page

Pliler v. Ford, 542 U.S. 225 (2004) ....... 2... ccc eeees 15

Rhines v. Weber, 125 S. Ct. 1528 (2005) ................ 7

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

2002), cert. denied, 540 U.S. 826 (2003) .............. 9

Rodriguez v. Johnson, 104 F.3d 694 (Sth Cir.),

cert. denied, 520 U.S. 1267 (1997) .............055. 13

Salahuddin v. Jones, 992 F.2d 447 (2d Cir.),

cert. denied, 510 U.S.992 (1993) .................. 27

Schiro v. Farley, 510 U.S. 222 (1994) ........... 20, 21, 23

Schlanger v. Seamans, 401 U.S. 487 (1971) ............ 19

Scott v. Collins, 286 F.3d 923 (6th Cir. 2002) ........... 11

Slack v. McDaniel, 529 U.S. 473 (2000) ............... 18

Smith v. Murray, 477 U.S. 527 (1986) .................. 8

Stewart v. Martinez-Villareal, 523 U.S. 637

DT gadsadebdutdddanedabeedadonsodsoteieososs 10

Stone v. Powell, 428 U.S. 465 (1976) .................4-- 7

Street v. Vose, 936 F 2d 38 (1st Cir. 1991),

cert. denied, 502 U.S. 1063 (1992) .................. 27

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

cert. denied, 538 U.S. 1002 (2003) .................. 12

Teague v. Lane, 489 U.S. 288 (1989) ...........-..0005. 8

Trest v. Cain, 522 U.S. 87 (1997) ............... 13, 20, 21

United States v. Barrett, 178 F.3d 34

(1st Cir. 1999), cert. denied, 528 U.S.

i diel needa ee ee eeeeene neeeenee 13

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

2005), petition for cert. pending, No. 05-3

(filed June 24,2005) ............... 2, 11, 13, 14, 27, 28

United States v. Frady, 456 U.S. 167 (1982) ..... 8, 9, 17, 24

Vill

Cases—Continued: Page

United States v. Ishmael, 343 F 3d 741 (5th Cir.

2003), cert. denied, 540 U.S. 1204 (2004) ............ 13

United States v. Kubrick, 444 U.S. 111 (1979) ........... 9

United States v. Sosa, 364 F.3d 507 (4th Cir.

ee ee a ee ee 1]

United States v. Vonn, 535 U.S. 55 (2002) ............. 24

Wainwright v. Sykes, 433 U.S. 72 (1977) ............... 8

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

cert. denied, 510 U.S. 1078 (1994) ...............4.. 13

Williams v. Lampe, 399 F.3d 867 (7th Cir. 2005) ....... 26

Williams v. Taylor, 529 U.S. 420 (2000) ................ S

Woodford v. Garceau, 538 U.S. 202 (2003) ........... 8, 18

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

denied, 526 U.S. 1095 (1999) ...... 22. ceeeeees 12

Zotos v. Lindbergh Sch. Dist., 121 F.3d 658

DEAE eucececeseodensousbeceseéedesdeoss 27

Statutes and rules:

Act of July 8, 1976, Pub. L. No. 94-349, § 2,

DUET iidccnockdavendteebeue benevedsseceuene i)

Act of Sept. 28, 1976, Pub. L. No. 94-426,

DIE ccccundussdadeupeabtsdoereneosse )

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214:

DE EEE cccdcéscccoccccoceceeceseuse 2

DRA PEL ME cscoedecenceescesesesesoses 23

a a all 19

LEED Scbdcccoccccesecsccsous 27

IX

Statutes and rules—Continued: Page

DT saddguededdenseunedecesdediteneeesss 27

DE peddcendenndescéucédeucieebsbeosoneds 23

SD dtignisncusactanhinesmibeadeaies 4

BB UBC. BRAMBMA) ..cccccccccccccccess 10, 13

tT t¢dcesddesousddehbebeanucens 2,4

i <ccvscedagieseedtediabaen 1,2,7

DUTT! cccocoucesetedsasodanenes 2

| AR aE en eet ae 2

BB UBL. SEB4 (IGE) 2... cccccccccccess 6, 9, 10, 24

DT titindtecpediamuedoddiatedaedunuaaa 18

DE dudbedacsevendevenéesedeesovsns passim

DE - scatéciedesdesdsskboeeonnnmeten 9

DN ghéddecdindbnndiunedslecesnmiadaaiate 22

SD cnet hititad sar ncnebeuendineiediiintiadaainad 22

tt sceduktindaduddbucéunndacannsuaieae 18

TE htihindid nits ddneuatdemiie 15, 16, 17, 19

28 U.S.C. 2254 (1976):

Dn” siuaikubedinndeddabedéebouiee 9, 10, 16,17

DD studddubdeabodadadddaddssetdedeinate 22

ES I Oe ae Oe Se eS ra 19, 25

ED ond ddcdedigdaddeldeddmidmas 23

DD csendccdedasebes 1, 9, 10, 17, 24, 25, 29

DE cubteuatedassecintesetindsiekedaiies 24

EE LSI Se eA Aw SS 1,7

I Cite iad adie dllle cake 24

Dt? sapdidhadengecnhacedheseaneuinn 1,9, 10

Rules—Continued: Page

DED seeusrécotadanctadeedarsensan 17

Fed. R. Civ. P.:

DE? adasssvesdesbovenesadosssnasncesoetiaaes 3

SNE Sdddddcudnececenndenssbnesasddcéadebesdant 22

DE dddddcnstbapbedeediiseosasesanedias passim

DE étunstcontatdeuedesddenmtoansdlasedia 24

DEE cbedubeoesdceneesedsseccdsctasedeusensene 22

DD ¢isecccdnatnnteti 15, 16, 19, 20, 22, 24, 25, 30

DED “Gudecccdddodetstcnasdadienmieban 26, 27, 30

PEED dicvuddtaddvanesnéectasdadsniesmenns 18

DE dkdbosdvedesdnnodiosseienesukadbens 19, 22, 25

ED bibSéddcecddendédncedendeacéesdnendssdaces 25

EEE dndndecdsedéesknedndsnddenedseteoninns 12

Dt ciscdecbidundbesinbbbewadddadeaenesoden 25

PT + cococeduteaskenbéendedecetousnkeden 15

PURI cndcdcccnecceecéocecsccosasese 28

Miscellaneous:

H.R. Rep. No. 23, 104th Cong., Ist Sess. (1995) ........ 24

S. Rep. No. 1526, 80th Cong., 2d Sess. (1948) .......... 24

2 James W. Moore, Moore's Federal Practice (3d ed.

SD sccdcecuddesdeuecasubededeacéusedessodes 26, 27

5 Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure (3d ed. 2004) ...........0045. 26

In the Supreme Court of the Gnited States

No. 04-1324

PATRICK DAY, PETITIONER

v.

JAMES V. CROSBY, JR., SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a district court

has the power sua sponte to dismiss a habeas petition as un-

timely, when the State has erroneously conceded in its re-

sponse that the petition was timely. Because the one-year

time limit for a state prisoner to file a habeas petition is the

same as the period within which a federal prisoner must file

a motion for postconviction relief, see 28 U.S.C. 2244(d)(1); 28

U.S.C. 2255 para. 6, and in light of similarities between the

relevant procedural rules governing collateral review of state

and federal convictions, compare Rule 4 of the Rules Govern-

ing Section 2254 Cases (Section 2254 Rules) with Rule 4(b) of

the Rules Governing Section 2255 Proceedings (Section 2255

Rules), the Court’s decision in this case will influence, if not

(1)

2

control, the resolution of cases presenting similar questions

under 28 U.S.C. 2255. See, e.g., United States v. Bendolph,

409 F.3d 155 (3d Cir. 2005) (en banc), petition for cert. pend-

ing, No. 05-3 (filed June 24, 2005). The United States there-

fore has a significant interest in this case.

STATEMENT

1. In 1998, following a jury trial in a Florida state court,

petitioner Patrick Day was convicted of second-degree mur-

der and sentenced to imprisonment for a term of 55 years.

J.A. 1,10. Day appealed only his sentence, and the Florida

First District Court of Appeals affirmed on December 21,

1999. Day v. State, 746 So. 2d 1219. Because Day did not

seek review in this Court, the one-year limitations period for

filing a federal habeas petition, established by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, § 101, 110 Stat. 1217 (28

U.S.C. 2244(d)(1)), began running 90 days after the state

court’s decision, when the time to file a petition for certiorari

expired, i.e., on March 20, 2000. Pet. App. 2a, 9a. See 28

U.S.C. 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 532

(2003).

2. On March 9, 2001, Day filed a motion for post-

conviction relief in state court, claiming five grounds of inef-

fective assistance of counsel. J.A. 10-13; Pet. App. 9a. The

filing of that state court application tolled Day’s one-year

period for filing a federal habeas petition, 28 U.S.C.

2244(d)(2), but at that point Day had already used 353 of his

365 days. Pet. App. 2a, 12a. The state trial court denied

Day’s motion for relief, as well as an amended motion, which

the court construed as a second motion. /d. at 9a. The state

district court of appeals affirmed on October 9, 2002, and,

following the denial on November 15, 2002, of Day’s motion

for rehearing, the court of appeals’ mandate issued on Decem-

ber 3, 2002. J.A. 14-16. With that event, pursuant to Elev-

enth Circuit precedent, Day’s unexpired time for filing a fed-

3

eral habeas petition began to run again. See Nyland v.

Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (motion for

postconviction relief is pending until Florida court of appeals’

mandate issues). Thus, Day had until December 16, 2002 (a

Monday), to file a federal habeas petition. Day did not, how-

ever, file his federal petition until January 8, 2003, after the

limitations period had run. Pet. App. 2a, 9a-10a; J.A. 17-20.

3. Day’s petition did not include the information that

would be necessary to determine if it was timely. Although

the petition reflected the dates on which his conviction was

affirmed and his state court motion for postconviction relief

was filed, J.A. 18, it did not specify the date on which the

court of appeals’ mandate issued in the state habeas proceed-

ing. See J.A. 19. Nor were the court documents that would

have revealed that information attached to the petition.

On February 4, 2003, a magistrate judge issued an order

indicating that the petition was “in proper form” and directing

the State to file a response, which was to include all argu-

ments on exhaustion of state remedies or procedural default.

J.A. 21-22. The order did not mention the statute of limita-

tions. /bid. In its March 17, 2003, response, Florida stated

that the petition “is timely; filed after 352 days of untolled

time.” J.A. 24. The State attached to its response copies of

the relevant state court proceedings, including a copy of the

Florida appellate court’s December 3, 2002, mandate.

On December 11, 2003, a new magistrate judge to whom

Day’s petition had been assigned issued an order sua sponte

directing Day to show cause why his petition should not be

dismissed as untimely. J.A. 26-30. The order to show cause

explained that, because 353 days had passed between the last

day for filing a petition for certiorari on direct appeal and the

filing of Day’s state postconviction motion, his federal habeas

petition was due within twelve days of when the state court of

appeals issued its mandate affirming the denial of

postconviction relief, 7.e., by Monday, December 16, 2002. See

J.A. 29 (citing Nyland v. Moore, supra; Fed. R. Civ. P. 6(a)).

4

In his response to the Order to Show Cause, Day noted

that Florida’s response had “agreed the Petition was timely”

and that the court had waited nearly a year to raise the issue

of timeliness. Day then argued that the petition was not un-

timely because the one-year period for filing a federal petition

under Section 2244(d) continued to be tolled for 90 days after

~~ ~the denial of his motion for rehearing in the state collateral

appeal, during which time he could have filed a petition for

certiorari in this Court. In addition, Day urged that the Sec-

tion 2244(d) deadline should be further tolled because state

public defenders had withheld his trial transcript for 352

days, thereby delaying his ability to file his state collateral

attack. J.A. 31-32.

The magistrate judge recommended dismissal of the peti-

tion. Pet. App. 8a-15a. The magistrate judge rejected Day’s

argument that his petition was timely. /d. at 12a (citing

Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000) (90-day period

for filing a petition for certiorari from a collateral appeal does

not toll the time for filing a federal habeas petition), cert.

denied, 531 U.S. 1166 (2001)). The magistrate judge also

found that Day’s argument that he was denied prompt access

to trial transcripts did not justify equitable tolling under 28

U.S.C. 2244. Pet. App. 13a-14a. Day filed an objection to the

magistrate’s Report and Recommendation with the district

court. Day did not renew either of his arguments why his

petition was timely. Instead, Day argued for the first time

that the State’s statement, in its response, that the petition

was timely foreclosed a sua sponte dismissal by the court on

that basis. J.A. 34-36.

The district court adopted the magistrate’s report and

dismissed Day’s petition. Pet. App. 7a. The court also denied

a certificate of appealability. J.A. 8. The Eleventh Circuit

granted a certificate of appealability to determine whether

the district court had erred in addressing the timeliness of the

petition after the State had conceded that it was timely. J.A.

37.

5

4. The court of appeals, in a per curiam opinion, affirmed

the district court’s dismissal of Day’s petition. Pet. App. la-

6a. The court of appeals first noted that it had, in Jackson v.

Secretary for the Department of Corrections, 292 F.3d 1347,

1349 (11th Cir. 2002), joined four other courts of appeals in

holding that, “even though the statute of limitations is an af-

firmative defense, the district court may review sua sponte

the timeliness of the section 2254 petition” under AEDPA.

Pet. App. 4a. The court of appeals reasoned that “there is no

meaningful difference between an erroneous failure to plead

the statute of limitations as an affirmative defense, as oc-

curred in Jackson, and a concession of timeliness that was

patently erroneous, as occurred here.” /bid.' The court fur-

ther explained that, while “[i)n an ordinary civil case, a ‘fail-

ure to plead the bar of the statute of limitations constitutes a

waiver of the defense,” ibid. (quoting Day v. Liberty Nat'l

Life Ins. Co., 122 F.3d 1012, 1015 (11th Cir. 1997), cert. de-

nied, 523 U.S. 1119 (1998)), habeas petitions are controlled by

different considerations. Unlike ordinary civil suits, Rule 4 of

the Section 2254 Rules provides, in relevant part, that “[iJf it

plainly appears from the petition and any attached exhibits

that the petitioner is not entitled to relief in the district court,

the judge must dismiss the petition and direct the clerk to

notify the petitioner.” Thus, the court of appeals concluded,

in order to “promote comity, finality, and federalism,” Con-

gress had, in AEDPA, assigned federal courts “an obligation

' In the district court, the State had not responded to the Order to Show

Cause or to Day’s objections to the magistrate judge’s Report and Recom-

mendation before the court had acted. On appeal, however, the State

affirmatively argued that the habeas petition was untimely and that the

concession of timeliness in the State’s response was due to “a clerical mistake

by counsel; that is, the failure to account for the 36 days which passed between

conclusion of state court proceedings and the date Day submitted his habeas

petition to prison officials.” C.A. Appellee Br. 5.

6

to enforce the federal statute of limitations” on habeas peti-

tions. Pet. App. 5a.’

SUMMARY OF ARGUMENT

District courts have authority to give effect to the one-

year statute of limitations period Congress has established for

federal court review of state court convictions, whether or not

a State has overlooked or mistakenly conceded the limitations

bar in its answer. It is undisputed that the limitations bar can

be vindicated by the district court swa sponte before the State

has been called upon to respond. But the district court’s deci-

sion to call for an answer does not strip the court of the au-

thority to giv effect swa sponte to Congress’s determination

that federal courts should not hear untimely petitions.

There is nothing in the rules concerning habeas proce-

dure, or, indeed, in the rules governing civil proceedings gen-

erally, that divests the district court of its independent au-

thority to abide by the limitations on habeas review. Nor

would the importation of such a restriction be sensible. Be-

cause habeas petitioners are not required by the Section 2254

Rules to supply the district court at the outset with all of the

information necessary to determine whether a petition is

timely, the district court will often have to call for a response

from the State in order to obtain that information. Once the

habeas court does so and becomes aware of the limitations

obstacle, sound principles of finality, comity, and federalism

require the district court to dismiss the petition, at least ab-

? As petitioner notes (Br. 9 n.9), the Court distinguished in Kontrick v.

Ryan, 540 U.S. 443 (2004), between a defendant's “waiver” of a defense, ve.,

“the intentional relinquishment or abandonment of a known right,” and

“forfeiture,” which is “the failure to make the timely assertion of a right.” /d.

at 458 n.13 (citation omitted). Although the court of appeals referred to this

case as raising a question of “waiver,” Pet. App. 4a, petitioner makes no claim

that the State knowingly abandoned its statute of limitations defense. Thus,

this brief refers to the State’s alleged “forfeiture,” although many of the

sources cited are not always so precise in their terminology.

7

sent prejudice or other countervailing concerns. Any sugges-

tion that the habeas rules, or borrowed rules of civil proce-

dure, imply an absence of such power is squarely foreclosed

by the Court’s decisions. Thus, the State’s act of filing a re-

sponse in this case, even one that erroneously conceded that

the petition was timely, did not deprive the district court of its

authority to enforce the limitations period that Congress has

adopted to promote the prompt filing and disposition of ha-

beas corpus petitions.

ARGUMENT

I. A DISTRICT COURT MAY DISMISS AN UNTIMELY HA-

BEAS PETITION SUA SPC'TE, EVEN IF THE STATE

FAILS TO RAISE THE DEFENSE IN ITS ANSWER

In order “to advance the finality of criminal convictions,”

Congress has “adopted a tight time line, a one-year limitation

period” for federal habeas cases. Mayle v. Felix, 125 S. Ct.

2562, 2573 (2005); 28 U.S.C. 2244(d)(1); 28 U.S.C. 2255 para. 6.

AEDPA’s one-year limitations period “quite plainly serves the

well-recognized interest in the finality of state court judg-

ments”; it “reduces the potential for delay on the road to final-

ity 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); Rhines v. Weber,

125 S. Ct. 1528, 1534 (2005). To further that policy, district

courts may dismiss untimely habeas petitions swa sponte,

even when the State has erroneously conceded the timeliness

of the petition.

A. Congress Has Assigned A Unique Gatekeeper Function

To Federal District Courts In Habeas Cases

This Court has long recognized the important principles

of comity, federalism, and finality that are implicated by fed-

eral habeas review of state court judgments. See, e.g., Stone

v. Powell, 428 U.S. 465, 491 n.31 (1976). In light of “the pro-

8

found societal costs that attend the exercise of habeas juris-

diction,” Calderon v. Thompson, 523 U.S. 538, 554 (1998)

(quoting Smith v. Murray, 477 U.S. 527, 539 (1986)), the

Court has “impose[d] significant limits on the discretion of

federal courts to grant habeas relief,” id. at 554-555. It has,

for example, restricted the courts’ ability to grant habeas

relief on the basis of procedurally defaulted claims, United

States v. Frady, 456 U.S. 152, 164-169 (1982); Wainwright v.

Sykes, 433 U.S. 72, 90-91 (1977), retroactive application of

“new rules,” Teague v. Lane, 489 U.S. 288, 308-310 (1989)

(plurality opinion), non-prejudicial claims of trial error,

Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993), or where

the petitioner has abused the writ, McCleskey v. Zant, 499

U.S. 467, 487 (1991).

Congress’s purposes in enacting AEDPA were “to further

the principles of comity, finality, and federalism” that gave

rise to this Court’s own limitations on habeas relief. Williams

v. Taylor, 529 U.S. 420, 436 (2000). See Mayle, 125 S. Ct. at

2573-2574. In particular, Congress understood that collateral

review of state convictions undermines the finality that “is

essential to both the retributive and the deterrent functions

of criminal law,” Calderon, 523 U.S. at 555, a concern that

applies to postconviction review of federal as well as state

convictions, Frady, 456 U.S. at 164-165. See Woodford v.

Garceau, 538 U.S. 202, 206 (2003) (noting that one of

AEDPA’s purposes is to “reduce delays in the execution of

state and federal criminal sentences, particularly in capital

cases”).

Like the other limits on habeas review, AEDPA’s statute

of limitations “implicates values beyond the concerns of the

parties.” Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000).

The habeas limitations period “promotes judicial efficiency

and conservation of judicial resources, safeguards the accu-

racy of state court judgments by requiring resolution of con-

stitutional questions while the record is fresh, and lends final-

ity to state court judgments within a reasonable time.” /bid.

9

See United States v. Kubrick, 444 U.S. 111, 117 (1979) (noting

that limitations periods “protect defendants and the courts”)

(emphasis added); Robinson v. Johnson, 313 F.3d 128, 137 (3d

Cir. 2002) (habeas time limit protects against “wasting pre-

cious legal and judicial resources”), cert. denied, 540 U.S. 826

(2003).

Because the costs associated with federal habeas review

are “societal costs,” Calderon, 523 U.S. at 554, society’s inter-

ests in enforcing the judicially and congressionally imposed

limits on such review “transcend the concerns of the parties

to [the] action.” Acosta, 221 F.3d at 122 (citation omitted). As

such, the habeas rules have provided, since their adoption by

Congress in 1976, for the courts to exercise a unique gate-

keeper function.’ Unlike most civil litigation, in habeas cases

Congress assigned to district courts the responsibility to dis-

miss unmeritorious petitions, including on grounds of untime-

liness, even before the government has filed a responsive

pleading. Rule 4 of the Section 2254 Rules (1976).

Rule 4 explicitly provides that the district court “must

promptly examine” the petition and “[iJf it plainly appears

from the petition and any attached exhibits that the petitioner

is not entitled to relief in the district court, the judge must

dismiss the petition.” Rule 4 of the Section 2254 Rules. Only

if the petition is not dismissed s«« sponte under this provision

does the district court “order the respondent to file an an-

swer, motion, or other response.” Jbid. Rule 4(b) of the Sec-

tion 2255 Rules similarly establishes that the district court is

to perform an initial screening function and dismiss a motion

that, on its face, does not entitle the movant to relief. Indeed,

as the terms of Rule 4 make clear, the district court is not

only authorized to dismiss a habeas petition for any apparent

reason that would foreclose relief, it is required to do so. See

* Congress initially delayed implementation of the proposed rules for

proceedings under Sections 2254 and 2255. See Pub. L. No. 94-349, § 2, 90

Stat 822. By statute, Congress subsequently “approved” the proposed rules,

with certain amendments. Pub. L. No. 94-426, § 1, 90 Stat. 1334.

10

Rule 4 of the Section 2254 Rules (directing that the district

court “must promptly examine” the petition and “must dis-

miss” it if “the petitioner is not entitled to relief”) (emphasis

added). See also Rule 4(b), Section 2255 Rules (same). The

Advisory Committee Notes confirm that intent, noting that

under 28 U.S.C. 2243 “it is the duty of the court to screen out

frivolous applications and eliminate the burden that would be

placed on the respondent by ordering an unnecessary an-

swer.” Rule 4 of the Section 2254 Rules, Advisory Committee

Notes (1976) (emphasis added); 28 U.S.C. 2243 (directing dis-

trict court to issue an order to show cause to the respondent

“unless it appears from the application that the * * * person

detained is not entitled” to relief).

Rule 4 thus clearly contemplates summary dismissal of a

Section 2254 petition or Section 2255 motion by a district

court on any fatal ground, even if the ground is one that, in an

ordinary civil case, generally must be asserted by the oppos-

ing party. “Congress intended the courts to play a more ac-

tive role in [habeas] cases than they generally play in many

other kinds of cases.” Hardiman v. Reynolds, 971 F.2d 500,

504 (10th Cir. 1992). And Rule 4, in particular, “differentiates

habeas cases from other civil cases with respect to sua sponte

consideration of affirmative defenses.” Kiser v. Johnson, 163

F.3d 326, 328 (5th Cir. 1999).*

‘ The judicial responsibility established in Rule 4 is just one example of the

gatekeeper function the courts serve with respect to habeas petitions. “In

AEDPA, Congress established a ‘gatekeeping’ mechanism for the consideration

of ‘second or successive habeas corpus applications’ in the federal courts.”

Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) (quoting Felker v.

Turpin, 518 U.S. 651, 657 (1996)). Thus, “[bjefore a second or successive

application [for a writ of habeas corpus} is filed in the district court, the

applicant shall move in the appropriate court of appeals for an order

authorizing the district court to consider the application.” 28 U.S.C.

2244(b)(3 A).

11

B. The Courts’ Gatekeeper Role Justifies Judicial Initiative

In Enforcing The Limitations Period Placed On Habeas

Petitions Even When The State Fails To Raise Or Erro-

neously Concedes The Limitations Issue

As the court of appeals observed, Pet. App. 4a, the circuit

courts that have addressed the issue have uniformly con-

cluded that Rule 4 authorizes a district court swa sponte to

dismiss a habeas petition, without requiring any answer from

the government, if the court can determine from the face of

the petition and accompanying documents that it is out of

time, as long as the court gives the petitioner notice and an

opportunity to be heard. See ibid.; Long v. Wilson, 393 F.3d

390, 402-403 (3d Cir. 2004); Hill v. Braxton, 277 F.3d 701, 706

(4th Cir. 2002); Scott v. Collins, 286 F.3d 923, 930 (6th Cir.

2002); Herbst v. Cook, 260 F.3d 1039, 1042-1043 & n.3 (9th Cir.

2001); Acosta, 221 F.3d at 124; Kiser, 163 F.3d at 328-329. See

also United States v. Bendolph, 409 F 3d 155, 164 (3d Cir.

2005) (en banc), petition for cert. pending, No. 05-3 (filed June

24, 2005) (Section 2255 case); United States v. Sosa, 364 F.3d

507, 513 (4th Cir. 2004) (same).’ Indeed, petitioner concedes

(Br. 42) that “[bJefore an answer is filed, Habeas Rule 4 al-

lows courts to dismiss untimely petitions summarily.”

The power of a habeas court to act sua sponte does not

vanish once the State files a response. Although petitioner

states (Br. 28) that “the Habeas Rules prohibit post-answer

sua sponte dismissals,” there is nothing in Rule 4 or any other

rule that expressly precludes a court from doing so. Nor, -

contrary to petitioner’s contention (Br. 29), does Rule 4’s ex-

press grant of authority sua sponte to dismiss defective peti-

tions pre-answer prohibit, by “negative implication,” post-

answer court-initiated dismissals. This Court rejected a simi-

* While recognizing a district court’s authority under Rule 4 to raise a

petition’s untimeliness sua sponte, the Sixth and Ninth Circuits have held that

the district court loses that authority once the State has filed an answer. See

Scott, 286 F 3d at 930; Nardi v. Stewart, 354 F 3d 1134, 1141 (9th Cir. 2004).

12

lar inference in Link v. Wabash Railroad, 370 U.S. 626 (1962).

There, the petitioner argued that Federal Rule of Civil Proce-

dure 41(b)’s grant to the district court of authority to dismiss

a complaint on a defendant’s motion for failure to prosecute,

“by negative implication, prohibits involuntary dismissals for

failure of the plaintiff to prosecute except upon motion by the

defendant.” /d. at 630. The Court rejected that argument,

holding that “(njeither the permissive language of the Rule

* * * nor its policy requires us to conclude that it* * *

abrogate[s] the power of courts, acting on their own initiative”

to dismiss a dilatory plaintiff's complaint. /bid. Petitioner

advances the same argument here, and it fares no better.

As in Link, the courts’ express authority under Rule 4 to

dismiss an unmeritorious habeas petition sua sponte is not a

unique exception to some general prohibition or an authoriza-

tion of a judicial power that would otherwise be absent.

Rather, it is a specific exhortation to exercise a more general

authority to sereen out and dismiss procedurally defective

habeas petitions that exists even in the absence of specific

authorization in a statute or rule. This Court has recognized

the distinctive role the judiciary plays in enforcing limitations

on habeas relief, even where doctrines of forfeiture might

preclude their enforcement in private civil litigation. In

Granberry v. Greer, 481 U.S. 129 (1987), for example, the

Court held that a court of appeals has the power to dismiss a

habeas petition for failure of the petitioner to exhaust state

remedies even though the State failed to raise nonexhaustion

in the district court. Jd. at 134. Applying Granberry, at least

eleven courts of appeals have held that a federal court in a

habeas proceeding may similarly raise a petitioner’s proce-

dural default swa sponte, even if the respondent fails to do so.°

* See Sweger v. Chesney, 294 F 3d 506, 520-521 (3d Cir. 2002), cert. denied,

538 U.S. 1002 (2003); Lorraine v. Coyle, 291 F.3d 416, 425-426 (6th Cir.),

amended on denial of reh'g, 307 F.3d 459 (2002), cert. denied, 538 U.S. 947

(2003); King v. Kemna, 266 F 3d 816, 822 (8th Cir. 2001) (en banc), cert. denied,

535 U.S. 934 (2002); Yeatts v. Angelone, 166 F 3d 255, 261-262 (4th Cir.), cert.

13

The policy underlying that rule—that habeas courts have an

independent role in promoting finality and reducing federal-

state friction by avoiding habeas litigation that is precluded

by a plain procedural bar—equally applies to a district court

that has ordered a response by the State under Rule 4 and

that thereafter notices a statute of limitations obstacle that

the State itself overlooked.’

The courts’ well-established gatekeeper role in habeas

cases justifies the district court’s exercise of authority to con-

sider AEDPA’s statute of limitations sua sponte, even when

the State has filed an answer that fails to address the issue or

that makes an erroneous concession of timeliness. See Pet.

App. 4a-5a; Jackson v. Secretary for the Dep't of Corrs., 292

F.3d 1347, 1349 (11th Cir. 2002) (per curiam); Long, 393 F.3d

at 401-404; Bendolph, 409 F.3d at 164 (same with respect to

Section 2255 postconviction motion). As discussed, habeas

limitations, including the statute of limitations, further

denied, 526 U.S. 1095 (1999); Boyd v. Thompson, 147 F 3d 1124, 1127-1128 (9th

Cir. 1998); Magouirk v. Phillips, 144 F 3d 348, 357 (Sth Cir. 1998); Brewer v.

Marshall, 119 F.3d 993, 999 (1st Cir. 1997), cert. denied, 522 U.S. 1151 (1998);

Esalinger v. Davis, 44 F.3d 1515, 1524-1525 (11th Cir. 1995); Washington v.

James, 996 F 2d 1442, 1448 (2d Cir. 1993), cert. denied, 516 U.S. 1078 (1994);

Hardiman, 971 F.2d at 501-505; Burgin v. Broglin, 900 F 2d 990, 997-998 (7th

Cir. 1990); see T'rest v. Cain, 522 U.S. 87, 90 (1997) (reserving the issue). Cf.

United States v. Ishmael, 343 F 3d 741, 743 (5th Cir. 2008) (court of appeals

could apply the limitations on postconviction review established in Powell and

Teague despite government's failure to raise those limitations in district court),

cert. denied, 540 U.S. 1204 (2004).

* Similarly, even before Congress's statutory assignment to the courts of a

gatekeeper function with respect to second and successive petitions, 28 U.S.C.

2244(bM3)XA), the courts had enforced the limitation on abusive writs by

denying such petitions swa sponte. See Rodriguez v. Johnson, 104 F 3d 694,

697 n.1 (5th Cir.) (citing pre-AE DPA cases), cert. denied, 520 U.S. 1267 (1997);

Femia, 47 F 3d at 523. See United States v. Barreti, 178 F 3d 34, 44 (ist Cir.

1999) (“The core of AEDPA restrictions on second or successive § 2255 peti-

tions is related to the longstanding judicial and statutory restrictions * * *

known as the ‘abuse of the writ’ doctrine.”), cert. denied, 528 U.S. 1176 (2000).

14

broader societal interests in comity, federalism, and finality

that transcend the interests of the parties themselves. As the

Third Circuit explained:

The spectrum of interests that we identify * * * —fi-

nality and judicial efficiency, most notably, but also the

public interest and the public reputation of judicial pro-

ceedings—are just as ably advanced post-answer as pre-

answer when an untimely case is dismissed upon a district

court’s own motion. Recognition of this disentangles the

overriding federal, judicial, and societal interests that are

relevant to our analysis from those that concern the par-

ties alone. * * * The above considerations * * * are no

less persuasive in instances where the government has

either waived the limitations defense or so concedes. Not

only are habeas cases different, but, as for the AEDPA

limitations provision, the government can claim no monop-

oly on its use.

409 F.3d at 167.

The district court’s authority to raise AEDPA’s statute of

limitations sua sponte does not, contrary to petitioner’s pro-

testations (Br. 36-37), “offend{}” the adversarial system. As

discussed below, see pp. 25-28, infra, courts can, in certain

circumstances, raise issues that the parties themselves have

not, even in traditional civil litigation. That is especially ap-

propriate where, as in the habeas context, “[tj}here are

broader interests at stake * * * than only those belonging to

the parties.” McMillan v. Jarvis, 332 F.3d 244, 248 (4th Cir.

2003). See Arizona v. California, 530 U.S. 392, 412 (noting

propriety of court raising res judicata defense sua sponte

because the doctrine is “not based solely on the defendant’s

interest,” but also “the avoidance of unnecessary judicial

waste”) (citation omitted), supplemented by 531 U.S. 1 (2000).

Rule 4 itself makes clear Congress's understanding that

“broader interests [are] at stake” in habeas litigation, and

15

petitioner’s “adversary system” argument (Br. 36) cannot be

squared with the district court’s conceded authority (see id.

at 42) to grant swa sponte dismissals under that Rule. That is

particularly true because, as this Court has noted, it will fre-

quently be the case that the timeliness of a habeas petition

will not be ascertainable until after the State has filed, along

with its answer, copies of documents from the state court pro-

ceedings. See Pliler v. Ford, 542 U.S. 225, 232 (2004).°

Il. RULES &c) AND 12(b) OF THE FEDERAL RULES OF

CIVIL PROCEDURE DO NOT DEFEAT THE DISTRICT

COURT’S AUTHORITY TO RAISE A HABEAS PETI-

TION’S UNTIMELINESS SUA SPONTE

Petitioner bases his argument that the district court

lacked authority to raise his petition’s untimeliness on the

characterization of habeas proceedings as “civil” in nature and

on the claim that the Court should import into habeas proce-

dure an assertedly strict rule under Rules 8(c) and 12(b) of

the Federal Rules of Civil Procedure that a defendant forfeits

any affirmative defenses not raised in its answer. See Pet. Br.

10-11. Petitioner maintains that under Rule 81(a)(2) of the

Federal Rules of Civil Procedure “the Civil Rules apply to

matters of procedure not directly addressed by a habeas stat-

ute or rule,” Pet. Br. 20 (emphasis added), and that Rule 11 of

the Section 2254 Rules “compels” the courts to follow the Fed-

eral Rules of Civil Procedure “where the [Habeas Rules] are

silent on an issue,” Pet. Br. 20 n.25 (quoting Kiser, 163 F.3d

at 328). Petitioner misunderstands the relationship of the

Civil Rules to habeas proceedings to that extent.

* Petitioner now contends (Br. 45-50) that his habeas petition was timely

filed, and that the Court should for that reason as well hold that the district

court erred in dismissing his petition. The United States takes no position on

the question whether petitioner's habeas petition was, in fact, untimely. The

question on which the Court granted certiorari assumes that the petition was

untimely under AE DPA’s statute of limitations, and this brief proceeds on that

assumption.

16

The Federal Rules of Civil Procedure do not apply to ha-

beas review if such application would be inconsistent with the

distinctive role of the courts in enforcing limits on habeas

review. Thus, if it were correct, as petitioner argues, that sua

sponte enforcement of the AEDPA statute of limitations

would be inconsistent with the Civil Rules, the consequence

would not be to defeat the district court’s authority to enforce

the AEDPA statute of limitations, but rather to render Civil

Rules 8(c) and 12(b) inapplicable to habeas proceedings.

A. The Courts Borrow Civil Rules In Habeas Cases Only To

The Extent That Such Application Is Consistent With

The Overall Framework And Policies Of Habeas Corpus

It is a considerable oversimplification to claim that habeas

review is just like any other civil case. As this Court has ob-

served, labeling habeas corpus proceedings as civil “is gross

and inexact,” since “[h]Jabeas corpus practice in the federal

courts has conformed to civil practice only in a general sense.”

Harris v. Nelson, 394 U.S. 286, 293-294 (1969). “Essentially,”

the Court has noted, “the proceeding is unique.” /d. at 294.

While a habeas case is nominally civil, the proceeding “re-

views a criminal punishment with the potential of overturning

it,” so that it “necessarily assumes part of the underlying

case’s criminal nature.” O’Brien v. Moore, 395 F.3d 499, 505

(4th Cir. 2005).

Consistent with the unique character of habeas proceed-

ings, the courts are far less constrained to follow the ordinary

Civil Rules than petitioner suggests. Although Rule 11 of the

Section 2254 Rules “permits application of the Federal Rules

of Civil Procedure in habeas cases,” Mayle, 125 S. Ct. at 2569

(emphasis added), it does so only “to the extent that [the civil

rules} are not inconsistent with any statutory provisions or

{the habeas] rules,” ibid. (quoting Rule 11). Similarly, the

Advisory Committee Notes stress that the Civil Rules are to

be borrowed only “when in its discretion the court decides

they are appropriate.” Rule 11 of the Section 2254 Rules,

17

Advisory Committee Notes (1976). The Notes further empha-

size that “[t]he court does not have to rigidly apply rules

which would be inconsistent or inequitable in the overall

framework of habeas corpus.” /bid. (Rule 11 “permits appli-

cation of the civil rules only when it would be appropriate to

do so”).

The Section 2255 Rules, applicable to federal post-

conviction motions, make even more clear the extent of discre-

tion the courts possess to determine the appropriate proce-

dural rule to apply. As originally adopted by Congress, Rule

12 provided that “[i]f no procedure is specifically prescribed

by these rules, the district court may proceed in any lawful

manner not inconsistent with these rules, or any applicable

statute, and may apply the Federal Rules of Criminal Proce-

dure or the Federal Rules of Civil Procedure.” Rule 12 of the

Section 2255 Rules (1976) (emphasis added).’ Cf. Frady, 456

U.S. at 166-167 n.15 (interpreting Rule 12 of the Section 2255

Rules with reference to Rule 11 of the Section 2254 Rules).

In addition to its permissive language, the Advisory Com-

mittee Notes to Rule 11 are significant because they direct

that courts should depart from the Civil Rules not only when

those rules are inconsistent with a specific habeas rule or

statutory provision, but also when they are “inconsistent or

inequitable in the overall framework of habeas corpus.” Rule

11 of the Section 2254 Rules, Advisory Committee Notes

(1976) (emphasis added). This Court has embraced that ad-

monition, see Mayle, 125 S. Ct. at 2569 (quoting “overall

framework” language from Advisory Committee Notes);

Frady, 456 U.S. at 168 n.15 (same), an understanding that is

fundamentally inconsistent with petitioner’s proposed analyti-

cal approach (Br. 20-21), pursuant to which the courts must

presumptively apply the most analogous Federal Rule of Civil

* Although the language of Rule 12 was amended in 2004, after the district

court’s decision in this case, “the{] changes are intended to be stylistic and no

substantive change is intended.” Rule 12 of the Section 2255 Rules, Advisory

Committee Notes (2004).

18

Procedure unless doing so would be inconsistent with a partic-

ular statutory provision or habeas rule.

In Mayle, for example, the Court did not set a standard of

positive conflict between Federal Rule of Civil Procedure

15(c)(2)—regarding relation back of amendments to a com-

plaint—and Rule 2(c) of the Section 2254 Rules or the

AEDPA statute of limitations. Rather, the Court upheld lim-

ited application of Rule 15(c)(2) to habeas proceedings in a

manner consistent with habeas principles, such as “AEDPA’s

‘finality’ and ‘federalism’ concerns.” Mayle, 125 S. Ct. at

2574. See id. at 2570 (noting that the majority of the courts

of appeals had construed Rule 15(c)(2) “in federal habeas

cases less broadly” in light of “Congress’ decision to expedite

collateral attacks by placing stringent time restrictions on

[them]”) (citation omitted).

In other situations, likewise, the Court has held certain

civil rules inapplicable, or applicable in a modified fashion, in

light of general habeas principles, rather than in reference

solely to a particular rule or statute. See Harris, 394 US. at

293, 296 (Fed. R. Civ. P. 33, regarding discovery in civil ac-

tions, did not apply to habeas proceedings in light of “the his-

tory of habeas corpus procedure” and because civil discovery

rules “are ill-suited to the specia] problems and character of

such proceedings”); O’Neal v. McAninch, 513 U.S. 432, 440

(1995) (applying a criminal harmless-error standard in a ha-

beas proceeding, because, “although habeas is a civil proceed-

ing, someone’s custody, rather than mere civil liability, is at

stake”); Schlanger v. Seamans, 401 U.S, 487, 490 n.4 (1971)

(noting that national service of process, which is authorized in

“civil actions” against federal officials under 28 U.S.C.

1391(e), is not authorized in a habeas proceeding, even though

the statute does not explicitly exclude habeas proceedings).”°

'° Neither Slack v. McDaniel, 529 U.S. 473, 489 (2000), which petitioner cites

(Br. 9) for the proposition that the Federal Rules of Civil Procedure are

“applicable as a general matter to habeas cases,” nor Woodford v. Garceau, 538

__U.S. 202 (2003) (cited at Pet. Br. 20), is to the contrary. The Court did not

19

B. Applying Civil Rules 8(c) And 12(b) To Bar District

Courts From Giving Effect To Limitations On Habeas

Review Would Be Inconsistent With Habeas Principles

Application of Civil Rules 8(c) and 12(b) to habeas pro-

ceedings in the manner envisioned by petitioner would be

“inconsistent * * * in the overall framework of habeas cor-

pus.” Rule 11 of the Section 2254 Rules, Advisory Committee

Notes (1976). As previously discussed, see pp. 7-10, supra,

because of the unique nature of habeas review, and the way in

which it implicates principles of federalism, comity, and final-

ity, Congress has assigned to the courts a distinctive role in

enforcing appropriate limits on collateral review. Indeed,

petitioner recognizes (Br. 13) there is no equivalent under the

Civil Rules to the district court’s responsibility as gatekeeper

under 28 U.S.C. 2243 and Rule 4 of the Section 2254 Rules to

dismiss swa sponte unmeritorious habeas petitions. While

petitioner concedes (Br. 20) that Rules 8(c) and 12(b) of the .

Civil Rules must give way to the extent of an affirmative con-

flict with Rule 4, he maintains that Rules 8(c) and 12(b) apply

to preclude any swa sponte action by the district court beyond

discuss in either case what happens when there is tension between the Civil

Rules and habeas principles. Indeed, in Slack, the Court emphasized the fact

that the Civil Rules “vest the federal courts with due flexibility to prevent

vexatious litigation,” such as if a habeas petitioner injected undue delay by

repeatedly bringing petitions with mixed exhausted and unexhausted claims.

529 U.S. at 489. That is entirely consistent with the authority exercised by the

lower court here.

Nor do Gonzalez v. Crosby, 125 S. Ct. 2641 (2005), cited by petitioner at Br.

20 n.25, 32 & n.33, or Lonchar v. Thomas, 517 U.S. 314 (1996), relied on by

petitioner at Br. 32-33, hold that application of the Civil Rules is to be measured

solely against the text of the habeas statutes and rules. To the contrary,

Gonzalez recognized that, in Calderon, the Court had rejected the Ninth

Circuit’s recall of its mandate as inconsistent with the federal rules and “the

policies embodied in AEDPA,” 125 S. Ct. at 2649, and in Lonchar, the Court

rejected the district court’s assertion of a “general ‘equitable’ power to create

exceptions” to Rule 9(a) of the Section 2254 Rules, 517 U.S. at 316.

20

the explicit authority conferred by Rule 4 to dismiss petitions

sua sponte before calling for a response by the State. But the

“overall framework” of habeas cases posits a more active role

for the courts, such that a court is not limited to the defenses

asserted in the State’s answer. There is, therefore, no gen-

eral principle that a State’s failure to raise an issue cuts off a

habeas court’s power to notice it.

1. Petitioner cites several of this Court’s habeas decisions

(Br. 15-16, 26) in support of the proposition that “affirmative

defenses must be raised timely or else they are waived.” /d.

at 16. Notably, the purported “waiver” (or forfeiture) in those

cases all concerned defenses that a State first raised, or the

court first noticed, after proceedings in the district court had

already been completed and the case was on appeal. See

Trest, 522 U.S. at 89 (State had “neither raised nor argued”

procedural default, even on appeal); Schiro v. Farley, 510 US.

222, 228-229 (1994) (State raised non-retroactivity for the first

time in its merits brief in the Supreme Court); Collins v.

Youngblood, 497 U.S. 37, 40-41 (1990) (State had never as-

serted non-retroactivity defense and, when a member of this

Court raised it swa sponte at oral argument, the State dis-

claimed reliance on it); Granberry, 481 U.S. at 135-136 (State

interposed non-exhaustion for the first time on appeal). See

also Gray v. Netherland, 518 U.S. 152, 165-166 (1996) (noting

possibility of forfeiture with citation to Schiro, and Jenkins v.

Anderson, 447 U.S. 231, 234 n.1 (1980) (State “failed to raise

{procedural default] in either the District Court or the Court

of Appeals”)); Banks v. Dretke, 540 U.S. 668, 705 (2004) (not-

ing possibility of forfeiture, with reliance on Gray and

Granberry).

None of the cases relied upon by petitioner even suggests

that forfeiture in habeas cases is to be determined with exclu-

sive reference to the State’s answer, let alone holds that a

court is barred from noting a habeas defense sua sponte in

the absence of an answer asserting it. In fact, several of this

Court’s decisions are directly contrary to any such narrow

21

limitation on the courts’ authority. See, e.g., Caspari v.

Bohlen, 510 U.S. 383, 389 (1994) (“a federal court may, but

need not, decline to apply Teague if the State does not argue

it”); Schiro, 510 U.S. at 229 (declining to address non-retroac-

tivity defense that State raised only in Supreme Court merits

brief, “[a]lthough we undoubtedly have the discretion to

reach” the argument); Granberry, 481 U.S. at 134 (holding

that State’s failure, “whether inadvertently or otherwise,” to

raise nonexhaution in its answer did not preclude court of

appeals from addressing it if “the interests of comity and fed-

eralism” warrant); Jenkins, 447 U.S. at 234 n.1 (exercising

discretion not to address procedural default defense that

State raised for the first time in the Supreme Court). Cf.

Trest, 522 U.S. at 89-92 (holding there is no requirement that

a court of appeals “must raise [procedural default] where the

State itself does not do so,” but declining to decide whether

the court of appeals was permitted to raise the issue sua

sponte); Youngblood, 497 U.S. at 41 (Teague non-retroactivity

rule is not one the Supreme Court “must raise and

decide * * * sua sponte” in light of State’s affirmative rep-

resentation that it “had chosen not to rely on Teague”).

To the extent the Court’s decisions suggest any general

rule about when a State’s defense to a habeas petition might

be deemed forfeited, they emphasize the completion of district

court proceedings, not the filing of the State’s answer. See

Granberry, 481 U.S. at 132 (noting reluctance to allow State

“to withhold raising a defense until after the ‘main event’

—* * *, the proceeding in the District Court—is over”); id.

at 135 (“if a full trial has been held in the district

court * * *, itmay * * * be appropriate for the court of

appeals to hold that the nonexhaustion defense has been

waived”); Banks, 540 U.S. at 705 (quoting same); Kontrick v.

Ryan, 540 U.S. 443, 458 (2004) (defendant forfeited untimeli-

ness argument “by failing to raise the issue until after {the]

complaint was adjudicated on the merits”).

22

2. Petitioner also urges importing Civil Rules 8(c) and

12(b) based upon Rule 5(b) of the Section 2254 Rules, which

requires the State to include certain defensés in its answer.

Pet. Br. 30. Although petitioner concedes that the statute of

limitations was not among the affirmative defenses listed in

Rule 5 at the time of the State’s answer in this case, petitioner

urges that the later addition of that defense was not a sub-

stantive change, and that Rule 5 is “(fjunctionally * * * the

same as the mandatory language in Civil Rules 8 and 12,

which gives rise to the waiver principle of the Civil Rules.”

Ibid.

This Court’s decision in Granberry demonstrates that

Rule 5 is not dispositive of the question whether the district

court has the power to raise a defense when the State fails to

assert it in its answer. At the time of the Granberry decision,

Rule 5 specified only one affirmative defense that the State

was required to address in the answer: “whether the peti-

tioner has exhausted his state remedies including any post-

conviction remedies available to him under the statutes or

procedural rules of the state.” See 481 U.S. at 132 n.5; Rule

5 of the Section 2254 Rules (1976). This Court observed that

the rule imposed on the State “a duty to advise the district

court whether the prisoner has, in fact, exhausted all available

state remedies.” Granberry, 481 U.S. at 134. The Court nev-

ertheless held that the court of appeals “is not obligated to

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

claim.” Jd. at 133. Rather, the appellate court should con-

sider the interests of comity, federalism, and judicial effi-

ciency, id. at 135, and decide “whether the administration of

justice would be better served by insisting on exhaustion or

by reaching the merits of the petition forthwith,” id. at 131.

If an appellate court is free to reach a defense that was not

asserted in the answer, then a fortiori, while a case is still

pending in district court, that court is authorized to apply

controlling legal principles despite the State’s failure to com-

ply with Rule 5. See Caspari, 510 U.S. at 389 (federal court

23

may apply non-retroactivity rule of Teague, though State does

not argue it); Schiro, 510 U.S. at 228-229 (same). Cf. 28

U.S.C. 2243 para. 8 (district courts in habeas proceedings are

empowered to “determine the facts, and dispose of the matter

as law and justice require”).

3. Petitioner’s reliance on 28 U.S.C. 2254(b)(3) is similarly

misplaced. Petitioner cites that provision, which provides

that a “State shall not be deemed to have waived the exhaus-

tion requirement * * * unless the State * * * expressly

waives the requirement,” ibid., as support for the proposition

that other defenses, as to which Congress has made no similar

provision, are forfeited under more stringent rules that pur-

portedly apply to civil cases generally. Pet. Br. 25. That stat-

utory provision was not added to Section 2254 until AEDPA’s

enactment in 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1218,

several years after this Court had already upheld, in

Granberry, a court’s authority to address an exhaustion de-

fense despite the State’s failure to raise it in its answer, 481

U.S. at 135. Thus, to the extent petitioner suggests that Sec-

tion 2254(b)(3) supports the notion that strict forfeiture of

defenses not timely raised in a habeas answer is the rule, ab-

sent an express statutory exception, Granberry refutes that

suggestion.

Nor does Congress’s adoption in Section 2254(b)(3) of an

explicit rule with respect to waiver of the defense of exhaus-

tion give rise to a negative inference that Congress intended

to adopt a stricter rule of timely assertion or forfeiture with

respect to other habeas defenses than the approach expressed

in Granberry. There is no indication that, by establishing a

higher threshold for inferring a State’s waiver of the exhaus-

tion requirement, Congress intended in AEDPA to make it

easier for States to forfeit inadvertently the other limitations

on habeas review. Rather, the amendment was specifically

“designed to disapprove those decisions which have deemed

states to have waived the exhaustion requirement, or barred

them from relying on it, in circumstances other than where

24

the state has expressly waived the requirement.” H.R. Rep.

No. 23, 104th Cong., Ist Sess. 10 (1995). Thus, “{hJaving pin-

pointed the problem, [Congress] gave a pinpoint answer.”

United States v. Vonn, 535 U.S. 55, 71 (2002) (Congress’s

adoption of a harmless-error standard in Fed. R. Crim. P.

1l(h) to respond to judicial holdings failing to conduct

harmless-error review evinced no intent to displace plain-er-

ror review of forfeited claims).

4. Finally, striet enforcement of forfeiture principles

derived from Rules 8(c) and 12(b) of the Civil Rules with re-

spect to Section 2254 habeas petitions is inappropriate be-

cause it would introduce, based solely upon procedural techni-

cealities, significant substantive disparities between habeas

postconviction motions under Section 2255 to contest federal

convictions. Although petitioner does not expressly state his

rationale for urging application of Civil Rules 8(c) and 12(b)

to Section 2254 proceedings, the implicit basis of his theory is

that a habeas petition under Section 2254 is the equivalent of

a civil complaint, and the State’s response, if the court calls

for one, is the equivalent of a defendant’s answer. While that

analogy is not entirely correct even with respect to Section

2254, it is even more inapt with respect to Section 2255.

Unlike a state prisoner seeking federal court review of his

conviction, a federal prisoner does not initiate a new civil com-

plaint in the district where he is incarcerated, but must file a

motion under 28 U.S.C. 2255 in the district court that imposed

his sentence. 28 U.S.C. 2255 para. 1. By the terms of the

statute, a federal prisoner’s filing is a motion to “set aside or

correct the sentence,” ibid., which is a “further step in the

movant’s criminal case and not a separate civil action,” Rule

1 of the Section 2255 Rules, Advisory Committee Notes

(1976); Frady, 456 U.S. at 182 (Brennan, J., dissenting) (quot-

ing S. Rep. No. 1526, 80th Cong., 2d Sess. 2 (1948)). Thus,

Section 2255, unlike Section 2243, does not specifically call for

an answer to the prisoner’s motion, and Rule 5 of the Section

25

2255 Rules does not mention any requirement of raising affir-

mative defenses.

Rather than looking to Civil Rules 8(c) and 12(b) to fill any

gap in the Section 2255 Rules, a court would likely look to

practice regarding untimely motions to challenge a conviction

or sentence under Rule 33 or Rule 35 of the Federal Rules of

Criminal! Procedure or a similar motion to amend a judgment

under Federal Rule of Civil Procedure 60(b). Although the

Court recently held, in Eberhart v. United States, 126 S. Ct.

403 (2005) (per curiam), that Rule 33’s time limitation for fil-

ing a postconviction motion is “nonjurisdictional,” id. at 405,

such that it need not be noticed for the first time by an appel-

late court, id. at 407, the Court did not question that the dis-

trict court itself, had it noticed the untimeliness, would have

had authority to give effect to the time limitation before rul-

ing on the Rule 33 motion, despite the government's failure to

raise the defect. The same power exists for a district court to

enforce sua sponte the AEDPA statute of limitations in a Sec-

tion 2255 proceeding.

It would be anomalous for a significant difference between

postconviction review of state and federal convictions to turn

on technical distinctions in the procedural description of the

two proceedings. Rather, in both contexts, the unique role of

the postconviction court justifies judicial initiative in enforc-

Ill. ALLOWING THE DISTRICT COURT TO RAISE THE

STATUTE OF LIMITATIONS SUA SPONTE, EVEN AFTER

AN ANSWER HAS BEEN FILED, DOES NOT CONFLICT

WITH GENERAL PRACTICE UNDER THE FEDERAL

RULES OF CIVIL PROCEDURE

Although Civil Rules 8(c) and 12(b) would be rendered

inapplicable to habeas proceedings by habeas Rule 11 as

“inconsistent * * * [with] the overall framework of habeas

corpus,” Rule 11 of the Section 2254 Rules, Advisory Commit-

tee Notes (1976), if they were as strict as petitioner maintains,

they are not in fact so limiting. Permitting the district court

to raise AEDPA’s statute of limitation sua sponte is not incon-

sistent with general principles of civil procedure.

Contrary to the implication of petitioner’s arguments, a

court with subject matter jurisdiction always has authority to

apply the governing law. See Kamen v. Kemper Fin. Servs.,

Inc., 500 U.S. 90, 99 (1991) (an appellate court “is not limited

to the particular legal theories advanced by the parties but

rather retains the independent power to identify and apply

the proper construction of governing law”); Arcadia v. Ohio

Power Co., 498 U.S. 73, 77 (1990) (addressing a legal question

that the parties had not argued).

Although, in ordinary civil cases, affirmative defenses

generally must be raised in a first responsive pleading, see

Fed. R. Civ. P. 8(c), “a defense may be raised in a number of

ways even if the defense is not presented in the initial re-

sponse.” 2 James W. Moore, Moore’s Federal Practice

§ 8.07[3], at 8-38 (3d ed. 2005). Under Rule 15(a) of the Fed-

eral Rules of Civil Procedure, leave of court to amend an an-

swer “shall be freely given when justice so requires.” See

Foman v. Davis, 371 U.S. 178, 182 (1962) (in the absence of

“undue delay, bad faith or dilatory motive,” “repeated failure

to cure deficiencies,” “undue prejudice to the opposing party,”

or “futility of amendment,” “the leave sought should, as the

rules require, be ‘freely given”); 5 Charles A. Wright & Ar-

thur R. Miller, Federal Practice and Procedure § 1278, at 684-

685 (3d ed. 2004). Because “(t)he purpose of [Rule &(c)] is to

give the opposing party notice of the [defense]” and a chance

to rebut it, Blonder-Tongue Labs., Inc. v. University of Ill.

Found., 402 U.S. 313, 350 (1971), the courts of appeals have

routinely upheld a district court’s discretion to allow a late

amendment, in the absence of prejudice to the opposing party

or bad faith, to add affirmative defenses, including a statute

of limitations defense. E.g., Williams v. Lampe, 399 F 3d 867,

871 (7th Cir. 2005); Commander Oil Corp. v. Barlo Equip.

Corp., 215 F.3d 321, 333 (2d Cir.) (upholding discretion to

27

allow amendment despite defendant’s “seven-year delay to

add its statute of limitations defense”), cert. denied, 531 U.S.

979 (2000); Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 360

(8th Cir. 1997); Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir.

1994). Likewise, the habeas statute expressly provides that

“(t]he return * * * may be amended, by leave of court, before

or after being filed.” 28 U.S.C. 2243 para. 7.

In addition to formal amendment, in ordinary civil prac-

tice, affirmative defenses may be raised for the first time by

the district court swa sponte when it is done in a fashion that

does not result in unfair surprise or prejudice to the plaintiff.

See Moore, supra, § 8:07[2] and [3], at 8-36 to 8-41; Grand

Rapids Plastics, Inc. v. Lakian, 188 F 3d 401, 407 (6th Cir.

1999) (swa sponte dismissal on statute of limitations grounds),

cert. denied, 529 U.S. 1037 (2000); Mowbray v. Cameron

County, 274 F.3d 269, 281 (5th Cir. 2001) (res judicata), cert.

denied, 535 U.S. 1035 (2002); Salahuddin v. Jones, 992 F.2d

447 (2d Cir.) (same), cert. denied, 510 U.S. 992 (1993). Al-

though petitioner urges the Court (Br. 30-31) to treat the

State’s failure to amend its pleading under Rule 15(a) as

dispositive, no purpose would be served by insisting on that

formality, especially in a context in which the courts

concededly have express authority to dismiss sua sponte be-

fore an answer is filed. See Bendolph, 409 F.3d at 166 n.16 (a

“federal habeas court acting sua sponte need not invite the

government to amend an answer pursuant to Rule 15(a)”). Cf.

Moore v. McDonald, 30 F.3d 616, 618 (5th Cir. 1994) (uphold-

ing sua sponte dismissal of in forma pauperis complaint as

frivolous on statute of limitations grounds, citing 28 U.S.C.

1915(d) (1988)); Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991)

(per curiam) (Breyer, C.J., presiding) (same), cert. denied, 502

U.S. 1063 (1992); Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990)

(citing 28 U.S.C. 1915(d) (1988), court of appeals dismissed

complaint on statute of limitations grounds not raised or de-

cided in district court). Moreover, any district judge who

wished to enforce a limitations period that the State had not

28

raised would have to do no more than to invite a motion to

amend the pleadings to raise the defense. Cf. Carlisle v.

United States, 517 U.S. 416, 423-424 n.3 (1996) (same observa-

tion with respect to a motion for judgment of acquittal under

Fed. R. Crim. P. 29(c)). The Court should not require such

empty formalism."

IV. A DISTRICT COURT SHOULD SUA SPONTE DISMISS A

HABEAS PETITION AS UNTIMELY ABSENT ACTUAL

PREJUDICE OR WASTE OF JUDICIAL RESOURCES

Of course, just becavse a court has the authority to raise

a procedural bar sua sponte after the State has filed its an-

swer does not mean that it should do so in every case. As the

Third Circuit explained in Bendolph, swa sponte action by the

district court after the government has responded should give

the petitioner “notice of the issue and an opportunity to re-

spond,” and must “analyze[] the prejudice components of Rule

15(a)” to determine whether the petitioner would be preju-

diced by the State’s failure to assert the defense earlier. 409

F.3d at 169. Cf. Castro v. United States, 540 U.S. 375, 383

(2003) (recognizing court’s sua sponte authority to rechar-

" Petitioner cites several cases for the proposition that “courts lack the

authority to apply a waived limtations defense sua sponte in an ordinary civil

case.” Pet. Br. 13 & n.17. Those cases, from the Second, Fifth, Sixth, and

Seventh Circuits, do not stand for any absolute rule that an unasserted

affirmative defense cannot be raised by the court, as is clear from the cases

cited in the text from those same circuits that allow the district courts to raise

sua sponte such defenses in certain circumstances. Moreover, while the courts

of appeals plainly frown on sua sponte dismissals that give the plaintiff no

warning or opportunity to respond, see, e.g., Davis v. Bryc , 810 F.2d 42, 44 (2d

Cir. 1987) (sua sponte raising and deciding statute of limitations issue without

notice to parties), or that come after the expenditure of considerable resources,

Haskell v. Washington Township, 864 F 2d 1266, 1273 (6th Cir. 1988) (three

years of litigation and three published decisions), it is evident, from the cases

cited in the previous paragraph, that those circuits do permit the raising of a

statute of limitations post-answer by way of an amended answer. As indicated

in the text, there is no reason to insist on that formality in this context.

acterize pro e litigant’s motion as a first Section 2255 motion

if it first provides notice and an opportunity to withdraw the

motion). In some circumstances, such as after an extensive

evidentiary hearing has already been held, the court might

conclude that belatedly raising the statute of limitations

would be inconsistent with the principles and policies that

underlie the defense. Cf. Haskell v. Washington Township,

864 F.2d 1266, 1273 (6th Cir. 1988) (reversing order allowing

amendment of answer to add statute of limitations defense

“(blecause of the length of time (over three years) and exten-

sive litigation (three published decisions) between the filing

of this action and the district court’s sua sponte raising of the

issue”).

None of those concerns is present here. There is no claim

that petitioner was prejudiced by the State’s erroneous state-

ment in its answer that the petition was timely. Nor is this

the case of a State that made an affirmative determination

“not to interpose [AEDPA’s] limitation defense” for one or

another reason. Pet. Br. 37. Cf. Youngblood, 497 U.S. at 40-

41 (State affirmatively disavowed reliance on Teague). This

is a case of forfeiture, not waiver. See note 2, supra. Here,

the State’s answer clearly did not “waive” the statute of limi-

tations defense, in the sense of an “intentional relinquishment

or abandonment of a known right.” Kontrick, 540 U.S. at 458

n.13 (citation omitted). The State did not, for example, re-

spond that the petition, though filed after AEDPA’s one-year

period, would be answered only on the merits. Rather, it is

evident from the State’s reference to “352 days of untolled

time” having elapsed, J.A. 24, that the State was under the

mistaken belief that the one-year limitations period had not

run, a fact that is further demonstrated by the State’s subse-

quent embrace of the untimeliness defense.

Nor did the omission of the defense in the State’s answer

result in unnecessary expenditure of effort and resources.

The magistrate judge’s order to show cause concerning the

petition’s untimeliness was the first thing that the magistrate

39

judge did in the case following receipt, in connection with the

State’s answer, of the court documents that were necessary to

determine the date on which petitioner’s state collateral ap-

peal was no longer pending and the tolling of the habeas stat-

ute of limitations ceased. Thus, contrary to petitioner’s con-

tention (Br. 11), the district court’s swa sponte dismissal unde-

niably furthered, rather than undermined, the goal of “quickly

identifyling] successful defenses and terminat([ing) the pro-

ceedings, saving time and expense for itself and the parties.”

Accordingly, the court of appeals’ conclusion that the

district court retains its authority to raise swa sponte the is-

sue of the statute of limitations in a habeas proceeding is con-

sistent with a proper understanding of Civil Rules &(c), 12(b),

and 15(a), and it gives full effect to the important societal

concerns at stake in habeas proceedings, as well as to the

intent of Congress in enacting AEDPA’s strict one-year time

limit. See Mayle, 125 S. Ct. at 2575. Neither prejudice nor

judicial efficiency concerns prevented the district court from

exercising that power here.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DOUGLAS HALLWARD-DRIEMEIER

Assistant to the Solicitor

General

KATHLEEN A. FELTON

Attorney

JANUARY 2006