(Slip Opinion) OCTOBER TERM, 2011 1 

Syllabus 

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

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

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

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

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

SUPREME COURT OF THE UNITED STATES 

Syllabus 

WOOD v. MILYARD, WARDEN, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE TENTH CIRCUIT 

No. 10–9995. Argued February 27, 2012—Decided April 24, 2012 

In 1987, petitioner Patrick Wood was convicted of murder and other

crimes by a Colorado court and sentenced to life imprisonment. Wood 

filed a federal habeas petition in 2008. After receiving Wood’s petition, the U. S. District Court asked the State if it planned to argue 

that the petition was untimely. In response, the State twice informed 

the District Court that it would “not challenge, but [was] not conceding,” the timeliness of Wood’s petition. Thereafter, the District Court 

rejected Wood’s claims on the merits. On appeal, the Tenth Circuit 

ordered the parties to brief both the merits and the timeliness of 

Wood’s petition. After briefing, the court held the petition time

barred, concluding that the court had authority to raise timeliness on

its own motion, and that the State had not taken the issue off the table by declining to raise a statute of limitations defense in the District Court. 

Held: 

1. Courts of appeals, like district courts, have the authority—

though not the obligation—to raise a forfeited timeliness defense on 

their own initiative in exceptional cases. Pp. 4–9.

(a) “Ordinarily in civil litigation, a statutory time limitation is

forfeited if not raised in a defendant’s answer or in an amendment 

thereto.” Day v. McDonough, 547 U. S. 198, 202. An affirmative defense, once forfeited, is excluded from the case and, as a rule, cannot 

be asserted on appeal.

In Granberry v. Greer, 481 U. S. 129, 133, this Court recognized a 

modest exception to the rule that a federal court will not consider a

forfeited defense. There, the Seventh Circuit addressed a nonexhaustion defense the State raised for the first time on appeal. The exhaustion doctrine, this Court noted, is founded on concerns broader 
 

 

 

 

2 WOOD v. MILYARD 

Syllabus 

than those of the parties; in particular, the doctrine fosters respectful, harmonious relations between the state and federal judiciaries. 

Id., at 133–135. With that comity interest in mind, the Court held

that federal appellate courts have discretion to consider a nonexhaustion argument inadvertently overlooked by the State in the district 

court. Id. at 132, 134.

 In Day, the Court affirmed a federal district court’s authority to

consider a forfeited habeas defense when extraordinary circumstances 

so warrant. 547 U. S., at 201. The State in Day, having miscalculated a time span, erroneously informed the District Court that Day’s 

habeas petition was timely. Apprised of the error by a Magistrate 

Judge, the District Court, sua sponte, dismissed the petition as untimely. This Court affirmed, holding that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state 

prisoner’s habeas petition.” Id., at 209. Such leeway was appropriate, the Court again reasoned, because AEDPA’s statute of limitations, like the exhaustion doctrine, “implicat[es] values beyond the 

concerns of the parties.” Id., at 205. 

The Court clarified, however, that a federal court does not have 

carte blanche to depart from the principle of party presentation. See 

Greenlaw v. United States, 554 U. S. 237, 243–244. It would be “an 

abuse of discretion” for a court “to override a State’s deliberate waiver of a limitations defense.” Day, 547 U. S., at 202. In Day itself, the 

State’s timeliness concession resulted from “inadvertent error,” id., at 

211, not a deliberate decision to proceed to the merits. Pp. 6–9.

(b) Consistent with Granberry and Day, the Court declines to 

adopt an absolute rule barring a court of appeals from raising, on its

own motion, a forfeited timeliness defense. The institutional interests served by AEDPA’s statute of limitations are also present when

a habeas case moves to the court of appeals, a point Granberry recognized with respect to a nonexhaustion defense. P. 9. 

2. The Tenth Circuit abused its discretion when it dismissed 

Wood’s petition as untimely. In the District Court, the State was 

well aware of the statute of limitations defense available to it, and of 

the arguments that could be made in support of that defense. Yet, 

the State twice informed the District Court that it would not “challenge” the timeliness of Wood’s petition. In so doing, the State deliberately waived the statute of limitations defense. In light of that 

waiver, the Tenth Circuit should have followed the District Court’s 

lead and decided the merits of Wood’s petition. Pp. 9–11. 

403 Fed. Appx. 335, reversed and remanded. 

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

C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. 
Cite as: 566 U. S. ____ (2012) 3 

Syllabus 

THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. 
 

 

_________________ 

_________________ 

 

Cite as: 566 U. S. ____ (2012) 1 

Opinion of the Court 

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

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

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

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

SUPREME COURT OF THE UNITED STATES 

No. 10–9995 

PATRICK WOOD, PETITIONER v. KEVIN MILYARD,
 

WARDEN, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 

APPEALS FOR THE TENTH CIRCUIT
 

[April 24, 2012] 

JUSTICE GINSBURG delivered the opinion of the Court. 

This case concerns the authority of a federal court to

raise, on its own motion, a statute of limitations defense to 

a habeas corpus petition. After state prisoner Patrick

Wood filed a federal habeas corpus petition, the State 

twice informed the U. S. District Court that it “[would] not 

challenge, but [is] not conceding, the timeliness of Wood’s 

habeas petition.” App. 70a; see id., at 87a. Thereafter, 

the District Court rejected Wood’s claims on the merits.

On appeal, the Tenth Circuit directed the parties to brief

the question whether Wood’s federal petition was timely.

Post-briefing, the Court of Appeals affirmed the denial of

Wood’s petition, but solely on the ground that it was

untimely.

Our precedent establishes that a court may consider a

statute of limitations or other threshold bar the State 

failed to raise in answering a habeas petition. Granberry 

v. Greer, 481 U. S. 129, 134 (1987) (exhaustion defense); 

Day v. McDonough, 547 U. S. 198, 202 (2006) (statute of 

limitations defense). Does court discretion to take up

timeliness hold when a State is aware of a limitations 
 

 

2 WOOD v. MILYARD 

Opinion of the Court 

defense, and intelligently chooses not to rely on it in the 

court of first instance? The answer Day instructs is “no”: 

A court is not at liberty, we have cautioned, to bypass,

override, or excuse a State’s deliberate waiver of a limitations defense. Id., at 202, 210, n. 11. The Tenth Circuit, 

we accordingly hold, abused its discretion by resurrecting

the limitations issue instead of reviewing the District 

Court’s disposition on the merits of Wood’s claims. 

I 

In the course of a 1986 robbery at a pizza shop in a

Colorado town, the shop’s assistant manager was shot and 

killed. Petitioner Patrick Wood was identified as the perpetrator. At a bench trial in January 1987, Wood was 

convicted of murder, robbery, and menacing, and sentenced to life imprisonment. The Colorado Court of Appeals affirmed Wood’s convictions and sentence on direct

appeal in May 1989, and the Colorado Supreme Court 

denied Wood’s petition for certiorari five months later. 

Wood did not ask this Court to review his conviction in the 

90 days he had to do so.

Wood then pursued postconviction relief, asserting constitutional infirmities in his trial, conviction, and sentence. Prior to the federal petition at issue here, which 

was filed in 2008, Wood, proceeding pro se, twice sought

relief in state court. First, in 1995, he filed a motion to 

vacate his conviction and sentence pursuant to Colorado 

Rule of Criminal Procedure 35(c) (1984).1 He also asked 

the Colorado trial court to appoint counsel to aid him in 

pursuit of the motion. When some months passed with no 

—————— 

1Colorado Rule of Criminal Procedure 35(c) (1984) provides, in relevant part: “[E]very person convicted of a crime is entitled as a matter of

right to make application for postconviction review upon the groun[d]

. . . [t]hat the conviction was obtained or sentence imposed in violation 

of the Constitution or laws of the United States or the constitution or 

laws of this state.” 
Cite as: 566 U. S. ____ (2012) 3 

Opinion of the Court 

responsive action, Wood filed a request for a ruling on his 

motion and accompanying request for counsel. The state 

court then granted Wood’s plea for the appointment of 

counsel, but the record is completely blank on any further 

action regarding the 1995 motion. Second, Wood filed a 

new pro se motion for postconviction relief in Colorado 

court in 2004. On the first page of his second motion, he

indicated that “[n]o other postconviction proceedings [had

been] filed.” Record in No. 08–cv–00247 (D Colo.), Doc.

15–5 (Exh. E), p. 1. The state court denied Wood’s motion 

four days after receiving it.

Wood filed a federal habeas petition in 2008, which the

District Court initially dismissed as untimely. App. 41a–

46a. On reconsideration, the District Court vacated the 

dismissal and instructed the State to file a preanswer 

response “limited to addressing the affirmative defenses of

timeliness . . . and/or exhaustion of state court remedies.” 

Id., at 64a–65a. On timeliness, the State represented in 

its preanswer response: “Respondents will not challenge, 

but are not conceding, the timeliness of Wood’s [federal] 

habeas petition.” Id., at 70a. Consistently, in its full answer to Wood’s federal petition, the State repeated: “Respondents are not challenging, but do not concede, the

timeliness of the petition.” Id., at 87a. 

Disposing of Wood’s petition, the District Court dismissed certain claims for failure to exhaust state remedies, and denied on the merits Wood’s two remaining 

claims—one alleging a double jeopardy violation and one 

challenging the validity of Wood’s waiver of his Sixth 

Amendment right to a jury trial. Id., at 96a–111a. On 

appeal, the Tenth Circuit ordered the parties to brief, 

along with the merits of Wood’s double jeopardy and Sixth 

Amendment claims, “the timeliness of Wood’s application 

for [federal habeas relief].” Id., at 129a. After briefing,

the Court of Appeals affirmed the denial of Wood’s petition 

without addressing the merits; instead, the Tenth Circuit 
 

 

4 WOOD v. MILYARD 

Opinion of the Court 

held the petition time barred. 403 Fed. Appx. 335 (2010).

In so ruling, the Court of Appeals concluded it had authority to raise timeliness on its own motion. Id., at 337, n. 2. 

It further ruled that the State had not taken that issue off 

the table by declining to interpose a statute of limitations

defense in the District Court. Ibid. 

We granted review, 564 U. S. ___ (2011), to resolve two 

issues: first, whether a court of appeals has the authority to address the timeliness of a habeas petition on the 

court’s own initiative;2 second, assuming a court of appeals

has such authority, whether the State’s representations to 

the District Court in this case nonetheless precluded the 

Tenth Circuit from considering the timeliness of Wood’s 

petition. 

II
 

A 

Under the Antiterrorism and Effective Death Penalty 

Act of 1996 (AEDPA), 110 Stat. 1214, a state prisoner has

one year to file a federal petition for habeas corpus relief,

starting from “the date on which the judgment became 

final by the conclusion of direct review or the expiration

of the time for seeking such review.” 28 U. S. C. 

§2244(d)(1)(A). For a prisoner whose judgment became 

final before AEDPA was enacted, the one-year limitations

period runs from the AEDPA’s effective date: April 24,

1996. See Serrano v. Williams, 383 F. 3d 1181, 1183 

(CA10 2004). “The one-year clock is stopped, however,

during the time the petitioner’s ‘properly filed’ application

for state postconviction relief ‘is pending.’” Day, 547 U. S., 

—————— 

2The Tenth Circuit’s conclusion that it had authority to raise an

AEDPA statute of limitations defense sua sponte conflicts with the view 

of the Eighth Circuit. Compare 403 Fed. Appx. 335, 337, n. 2 (CA10

2010) (case below), with Sasser v. Norris, 553 F. 3d 1121, 1128 (CA8

2009) (“The discretion to consider the statute of limitations defense 

sua sponte does not extend to the appellate level.”). 
 

Cite as: 566 U. S. ____ (2012) 5 

Opinion of the Court 

at 201 (quoting 28 U. S. C. §2244(d)(2)).3 

The state judgment against Wood became final on direct

review in early 1990. See supra, at 2. Wood’s time for 

filing a federal petition therefore began to run on the date 

of AEDPA’s enactment, April 24, 1996, and expired on

April 24, 1997, unless Wood had a “properly filed” application for state postconviction relief “pending” in Colorado 

state court during that period. Wood maintains he had 

such an application pending on April 24, 1996: the Rule

35(c) motion he filed in 1995. That motion, Wood asserts, 

remained pending (thus continuing to suspend the oneyear clock) until at least August 2004, when he filed his

second motion for postconviction relief in state court. The 

2004 motion, the State does not contest, was “properly 

filed.” Wood argues that this second motion further tolled

the limitations period until February 5, 2007, exactly one

year before he filed the federal petition at issue here. If 

Wood is correct that his 1995 motion remained “pending”

in state court from April 1996 until August 2004, his

federal petition would be timely.

In its preanswer response to Wood’s petition, the State

set forth its comprehension of the statute of limitations

issue. It noted that Wood’s “time for filing a habeas petition began to run on April 24, 1996, when the AEDPA 

became effective” and that Wood “had until April 24, 1997,

plus any tolling periods, to timely file his habeas petition.”

App. 69a–70a. The State next identified the crucial question: Did Wood’s 1995 state petition arrest the one-year 

statute of limitations period from 1996 until 2004? Id., at 

70a. “[I]t is certainly arguable,” the State then asserted,

“that the 1995 postconviction motion was abandoned 

—————— 

3The one-year clock may also be stopped—or “tolled”—for equitable 

reasons, notably when an “extraordinary circumstance” prevents a 

prisoner from filing his federal petition on time. See Holland v. Florida, 560 U. S. ___ (2010). Wood does not contend that the equitable

tolling doctrine applies to his case. App. 144a, n. 5. 
 

 

6 WOOD v. MILYARD 

Opinion of the Court 

before 1997 and thus did not toll the AEDPA statute of 

limitations at all.” Ibid. But rather than inviting a decision on the statute of limitations question, the State informed the District Court it would “not challenge” Wood’s 

petition on timeliness grounds; instead, the State simply 

defended against Wood’s double jeopardy and Sixth

Amendment claims on the merits. 

B 

“Ordinarily in civil litigation, a statutory time limitation

is forfeited if not raised in a defendant’s answer or in 

an amendment thereto.” Day, 547 U. S., at 202 (citing Fed.

Rules Civ. Proc. 8(c), 12(b), and 15(a)). See also Habeas 

Corpus Rule 5(b) (requiring the State to plead a statute 

of limitations defense in its answer).4 An affirmative 

defense, once forfeited, is “exclu[ded] from the case,” 5 C.

Wright & A. Miller, Federal Practice and Procedure §1278, 

pp. 644–645 (3d ed. 2004), and, as a rule, cannot be asserted on appeal. See Day, 547 U. S., at 217 (SCALIA, J., 

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

McCoy v. Massachusetts Inst. of Technology, 950 F. 2d 13, 

22 (CA1 1991) (“It is hornbook law that theories not raised

squarely in the district court cannot be surfaced for the 

first time on appeal.”).

In Granberry v. Greer, we recognized a modest exception

to the rule that a federal court will not consider a forfeited 

affirmative defense. 481 U. S., at 134. The District Court 

in Granberry denied a federal habeas petition on the

merits. Id., at 130. On appeal, the State argued for the 

first time that the petition should be dismissed because 

—————— 

4We note here the distinction between defenses that are “waived” and 

those that are “forfeited.” A waived claim or defense is one that a party

has knowingly and intelligently relinquished; a forfeited plea is one

that a party has merely failed to preserve. Kontrick v. Ryan, 540 U. S. 

443, 458, n. 13 (2004); United States v. Olano, 507 U. S. 725, 733 

(1993). That distinction is key to our decision in Wood’s case. 
 

Cite as: 566 U. S. ____ (2012) 7 

Opinion of the Court 

the petitioner had failed to exhaust relief available in 

state court. Ibid. See Habeas Corpus Rule 5(b) (listing “failure to exhaust state remedies” as a threshold bar 

to federal habeas relief). Despite the State’s failure to

raise the nonexhaustion argument in the District Court, 

the Seventh Circuit accepted the argument and ruled for 

the State on that ground. We granted certiorari to decide 

whether a court of appeals has discretion to address a nonexhaustion defense that the State failed to raise in the 

district court. Id., at 130. 

Although “express[ing] our reluctance to adopt rules

that allow a party to withhold raising a defense until after 

the ‘main event’ . . . is over,” id., at 132, we nonetheless 

concluded that the bar to court of appeals’ consideration of 

a forfeited habeas defense is not absolute. Id., at 133. The 

exhaustion doctrine, we noted, is founded on concerns 

broader than those of the parties; in particular, the doctrine fosters respectful, harmonious relations between the

state and federal judiciaries. Id., at 133–135. With that 

comity interest in mind, we held that federal appellate

courts have discretion, in “exceptional cases,” to consider a 

nonexhaustion argument “inadverten[tly]” overlooked by 

the State in the District Court. Id., at 132, 134.5

 In Day, we affirmed a federal district court’s authority

to consider a forfeited habeas defense when extraordinary 

circumstances so warrant. 547 U. S., at 201. There, the 

State miscalculated a time span, specifically, the number 

of days running between the finality of Day’s state-court 

conviction and the filing of his federal habeas petition. 

Id., at 203. As a result, the State erroneously informed 

the District Court that Day’s petition was timely. Ibid. A 

—————— 

5Although our decision in Granberry v. Greer, 481 U. S. 129 (1987),

did not expressly distinguish between forfeited and waived defenses, we 

made clear in Day v. McDonough, 547 U. S. 198 (2006), that a federal

court has the authority to resurrect only forfeited defenses. See infra, 

at 8–9. 
 

 

8 WOOD v. MILYARD 

Opinion of the Court 

Magistrate Judge caught the State’s computation error 

and recommended that the petition be dismissed as untimely, notwithstanding the State’s timeliness concession. 

Id., at 204. The District Court adopted the recommendation, and the Court of Appeals upheld the trial court’s 

sua sponte dismissal of the petition as untimely. Ibid. 

Concluding that it would make “scant sense” to treat

AEDPA’s statute of limitations differently from other 

threshold constraints on federal habeas petitioners, we

held “that district courts are permitted, but not obliged, to

consider, sua sponte, the timeliness of a state prisoner’s 

habeas petition.” Id., at 209; ibid. (noting that Habeas 

Corpus Rule 5(b) places “‘a statute of limitations’ defense 

on a par with ‘failure to exhaust state remedies, a procedural bar, [and] non-retroactivity.’”). Affording federal 

courts leeway to consider a forfeited timeliness defense 

was appropriate, we again reasoned, because AEDPA’s

statute of limitations, like the exhaustion doctrine, “implicat[es] values beyond the concerns of the parties.” Day, 

547 U. S., at 205 (quoting Acosta v. Artuz, 221 F. 3d 117, 

123 (CA2 2000)); 547 U. S., at 205–206 (“The AEDPA

statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of

state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.” 

(internal quotation marks omitted)).

We clarified, however, that a federal court does not have 

carte blanche to depart from the principle of party presentation basic to our adversary system. See Greenlaw v. 

United States, 554 U. S. 237, 243–244 (2008). Only where

the State does not “strategically withh[o]ld the [limitations] defense or cho[o]se to relinquish it,” and where the 

petitioner is accorded a fair opportunity to present his

position, may a district court consider the defense on its

own initiative and “‘determine whether the interests of 
 

Cite as: 566 U. S. ____ (2012) 9 

Opinion of the Court 

justice would be better served’ by addressing the merits or

by dismissing the petition as time barred.” Day, 547 U. S., 

at 210–211 (quoting Granberry, 481 U. S., at 136; internal 

quotation marks omitted). It would be “an abuse of discretion,” we observed, for a court “to override a State’s deliberate waiver of a limitations defense.” 547 U. S., at 202. 

In Day’s case itself, we emphasized, the State’s concession 

of timeliness resulted from “inadvertent error,” id., at 211, 

not from any deliberate decision to proceed straightaway 

to the merits. 

 Consistent with Granberry and Day, we decline to adopt

an absolute rule barring a court of appeals from raising, on its own motion, a forfeited timeliness defense. The 

institutional interests served by AEDPA’s statute of limitations are also present when a habeas case moves to the 

court of appeals, a point Granberry recognized with respect to a nonexhaustion defense. We accordingly hold, in

response to the first question presented, see supra, at 4, 

that courts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited 

timeliness defense on their own initiative. 

C 

We turn now to the second, case-specific, inquiry. See 

ibid. Although a court of appeals has discretion to address, sua sponte, the timeliness of a habeas petition,

appellate courts should reserve that authority for use in 

exceptional cases. For good reason, appellate courts ordinarily abstain from entertaining issues that have not been 

raised and preserved in the court of first instance. See 

supra, at 6. That restraint is all the more appropriate

when the appellate court itself spots an issue the parties 

did not air below, and therefore would not have anticipated in developing their arguments on appeal.

Due regard for the trial court’s processes and time investment is also a consideration appellate courts should 
 

 

 

 

10 WOOD v. MILYARD 

Opinion of the Court 

not overlook. It typically takes a district court more 

time to decide a habeas case on the merits, than it does to 

resolve a petition on threshold procedural grounds. See 

Dept. of Justice, Bureau of Justice Statistics, R. Hanson &

H. Daley, Federal Habeas Corpus Review: Challenging

State Court Criminal Convictions 23 (NCJ–155504, 1995)

(district courts spent an average of 477 days to decide a 

habeas petition on the merits, and 268 days to resolve 

a petition on procedural grounds). When a court of appeals 

raises a procedural impediment to disposition on the merits, and disposes of the case on that ground, the district 

court’s labor is discounted and the appellate court acts

not as a court of review but as one of first view. 

In light of the foregoing discussion of the relevant considerations, we hold that the Tenth Circuit abused its 

discretion when it dismissed Wood’s petition as untimely.

In the District Court, the State was well aware of the 

statute of limitations defense available to it and of the 

arguments that could be made in support of the defense.

See supra, at 5–6. Yet the State twice informed the District Court that it “will not challenge, but [is] not conceding” the timeliness of Wood’s petition. See supra, at 3. 

Essentially, the District Court asked the State: Will you

oppose the petition on statute of limitations grounds? The 

State answered: Such a challenge would be supportable, 

but we won’t make the challenge here. 

“[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’” Kontrick v. Ryan, 540 U. S. 

443, 458, n. 13 (2004) (quoting United States v. Olano, 507 

U. S. 725, 733 (1993)). The State’s conduct in this case fits 

that description. Its decision not to contest the timeliness 

of Wood’s petition did not stem from an “inadvertent error,” as did the State’s concession in Day. See 547 U. S., 

at 211. Rather, the State, after expressing its clear and 

accurate understanding of the timeliness issue, see supra,

at 5–6, deliberately steered the District Court away from 
 

Cite as: 566 U. S. ____ (2012) 11 

Opinion of the Court 

the question and towards the merits of Wood’s petition. In 

short, the State knew it had an “arguable” statute of

limitations defense, see supra, at 5, yet it chose, in no

uncertain terms, to refrain from interposing a timeliness

“challenge” to Wood’s petition. The District Court therefore reached and decided the merits of the petition. The 

Tenth Circuit should have done so as well. 

* * * 

For the reasons stated, the judgment of the Court of

Appeals for the Tenth Circuit is reversed, and the case is

remanded for further proceedings consistent with this 

opinion. 

It is so ordered. 
_________________ 

_________________ 

 

Cite as: 566 U. S. ____ (2012) 1 

THOMAS, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 10–9995 

PATRICK WOOD, PETITIONER v. KEVIN MILYARD,
 

WARDEN, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 

APPEALS FOR THE TENTH CIRCUIT
 

[April 24, 2012] 

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring in the judgment. 

In Day v. McDonough, 547 U. S. 198 (2006), the Court 

held that a federal district court may raise sua sponte a 

forfeited statute of limitations defense to a habeas corpus

petition. Relying on Day and Granberry v. Greer, 481 

U. S. 129 (1987), the Court now holds that a court of appeals may do the same. Because I continue to think that 

Day was wrongly decided and that Granberry is inapposite, I cannot join the Court’s opinion. See Day, 547 U. S., 

at 212–219 (SCALIA, J., joined by THOMAS and BREYER, 

JJ., dissenting). 

As the dissent in Day explained, the Federal Rules of

Civil Procedure apply in habeas corpus cases to the extent 

that they are consistent with the Habeas Corpus Rules, 

the habeas corpus statute, and the historical practice of 

habeas proceedings. Id., at 212 (citing Gonzalez v. Crosby,

545 U. S. 524, 529–530 (2005), and Woodford v. Garceau, 

538 U. S. 202, 208 (2003)). As relevant here, the Rules of 

Civil Procedure provide that a defendant forfeits his statute of limitations defense if he fails to raise it in his answer or in an amendment thereto. 547 U. S., at 212 (citing 

Rules 8(c), 12(b), 15(a)). That forfeiture rule is fully consistent with habeas corpus procedure. As an initial matter, the rule comports with the Habeas Rules’ instruction 
 

 

 

 

2 WOOD v. MILYARD 

THOMAS, J., concurring in judgment 

that a State “must” plead any limitations defense in its 

answer. Id., at 212–213 (quoting Rule 5(b) (emphasis 

deleted)). Moreover, the rule does not conflict with the 

habeas statute, which imposes a 1-year period of limitations without any indication that typical forfeiture rules 

do not apply. Id., at 213 (citing 28 U. S. C. §2244(d)(1)).

Finally, the rule does not interfere with historical practice.

Prior to the enactment of a habeas statute of limitations in 

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), habeas practice included no limitations period at all, much less one immune to forfeiture. 547 U. S., 

at 212. 

As the dissent in Day further explained, id., at 214, 

AEDPA’s statute of limitations is distinguishable from the 

equitable defenses that we have traditionally permitted 

federal habeas courts to raise sua sponte. See, e.g., Granberry, supra, at 133 (holding that appellate courts may 

consider a habeas petitioner’s failure to exhaust state remedies despite a State’s forfeiture of the defense). Those 

judicially created defenses were rooted in concerns of comity and finality that arise when federal courts collaterally 

review state criminal convictions. Day, 547 U. S., at 214. 

But those same concerns did not lead this Court to recognize any equitable time bar against habeas petitions. Id., 

at 214–215. Thus, nothing in this Court’s pre-existing 

doctrine of equitable defenses supported the Day Court’s 

“decision to beef up the presumptively forfeitable ‘limitations period’ of §2244(d) by making it the subject of sua 

sponte dismissal.” Id., at 215–216. 

For these reasons, I believe that the Day Court was 

wrong to hold that district courts may raise sua sponte

forfeited statute of limitations defenses in habeas cases. I 

therefore would not extend Day’s reasoning to proceedings 

in the courts of appeals. Appellate courts, moreover, are

particularly ill suited to consider issues forfeited below.

Unlike district courts, courts of appeals cannot permit a 
Cite as: 566 U. S. ____ (2012) 3 

THOMAS, J., concurring in judgment 

State to amend its answer to add a defense, nor can they 

develop the facts that are often necessary to resolve questions of timeliness. Cf. id., at 209 (majority opinion) (finding no difference between a district court’s ability to raise 

a forfeited limitations defense sua sponte and its ability to

notice the State’s forfeiture and permit an amended pleading under Rule of Civil Procedure 15). 

In light of these considerations, I cannot join the Court’s

holding that a court of appeals has discretion to consider 

sua sponte a forfeited limitations defense. Nor can I join

the Court’s separate holding that the Court of Appeals 

abused its discretion by raising a defense that had been

deliberately waived by the State. As the dissent in Day

noted, there is no principled reason to distinguish between 

forfeited and waived limitations defenses when determining whether courts may raise such defenses sua sponte. 

See 547 U. S., at 218, n. 3 (explaining that, if “‘values 

beyond the concerns of the parties’” justify sua sponte

consideration of forfeited defenses, such values equally 

support sua sponte consideration of waived defenses). 

Therefore, I concur only in the judgment.