(Slip Opinion) OCTOBER TERM, 2005 1 

Syllabus 

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

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

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

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

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

SUPREME COURT OF THE UNITED STATES 

Syllabus 

DAY v. MCDONOUGH, INTERIM SECRETARY, 

FLORIDA DEPARTMENT OF CORRECTIONS 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

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

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

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

habeas corpus petition, running from “the date on which the 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), but

stops the one-year clock while the petitioner’s “properly filed” application for state postconviction relief “is pending,” §2244(d)(2). Under 

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

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

sought certiorari review in this Court challenging state-court denial

of postconviction relief.

Petitioner Day’s Florida trial-court sentence was affirmed on December 21, 1999, and his time to seek this Court’s review of the final 

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

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

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

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

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

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

attachments, however, a Federal Magistrate Judge determined that

the State had miscalculated the tolling time: Under the controlling 

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

rendering the petition untimely. After affording Day an opportunity

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

meet AEDPA’s one-year deadline, the Magistrate Judge found petitioner’s responses inadequate and recommended dismissal. The District Court adopted the recommendation, and the Eleventh Circuit af-
2 DAY v. MCDONOUGH 

Syllabus 

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

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

to dismiss a habeas petition as untimely. 

Held: In the circumstances here presented, the District Court had discretion to correct the State’s erroneous computation and, accordingly,

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

limitation. Pp. 2–11.

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

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

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

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

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

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

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

an abuse of discretion to override a State’s deliberate waiver of the limitations defense. But, in appropriate circumstances, a district court may

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

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

miscalculation of time. In this situation the Court declines to adopt either an inflexible rule requiring dismissal whenever AEDPA’s oneyear clock has run, or, at the opposite extreme, a rule treating the

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

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

decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the 

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

with other affirmative defenses to habeas petitions, notably exhaustion

of state remedies, procedural default, and nonretroactivity. In Granberry v. Greer, 481 U. S. 129, 133, this Court held that federal appellate courts have discretion to consider a state prisoner’s failure to exhaust available state remedies before invoking federal habeas 

jurisdiction despite the State’s failure to interpose the exhaustion defense at the district-court level. Similarly, in Caspari v. Bohlen, 510 

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

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

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

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

threshold constraints on federal habeas petitioners. While a district 

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

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

commands a judge who detects a clear computation error to suppress

that knowledge. Cf. Fed. Rule Civ. Proc. 60(a). The Court notes particularly that the Magistrate Judge, instead of acting sua sponte, 

might have informed the State of its obvious computation error and 
Cite as: 547 U. S. ____ (2006) 3 

Syllabus 

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

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

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

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

notice and an opportunity to present their positions. It must also assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and “determine whether the interests of justice would be better served” by addressing the merits or

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

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

opportunity to show why the limitation period should not yield dismissal. The notice issued some nine months after the State’s answer. 

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

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

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

merely an inadvertent error, a miscalculation that was plain under

Circuit precedent, and no abuse of discretion in following Granberry 

and Caspari. P. 11. 

391 F. 3d 1192, affirmed. 

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

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

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

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

joined. 
_________________ 

_________________ 

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

Opinion of the Court 

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

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

notify the Reporter of Decisions, Supreme Court of the United States, 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. 04–1324 

PATRICK DAY, PETITIONER v. JAMES R. 

MCDONOUGH, INTERIM SECRETARY, 

FLORIDA DEPARTMENT OF 

CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 25, 2006] 

JUSTICE GINSBURG delivered the opinion of the Court. 

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

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

prisoner’s petition for a writ of habeas corpus. The Antiterrorism and Effective Death Penalty Act of 1996 

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

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

the judgment became final by the conclusion of direct 

review or the expiration of the time for seeking such review.” 28 U. S. C. §2244(d)(1)(A). The one-year clock is

stopped, however, during the time the petitioner’s “properly filed” application for state postconviction relief “is

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

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

petitioner might have sought certiorari review in this 

Court challenging state-court denial of postconviction

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

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

habeas petition “agree[d] the petition [was] timely” be-
2 DAY v. MCDONOUGH 

Opinion of the Court 

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

24. Inspecting the pleadings and attachments, a Federal 

Magistrate Judge determined that the State had miscalculated the tolling time. Under Circuit precedent, the untolled time was 388 days, rendering the petition untimely 

by some three weeks. After affording the petitioner an

opportunity to show cause why the petition should not be

dismissed for failure to meet the statutory deadline, and 

finding petitioner’s responses inadequate, the Magistrate 

Judge recommended dismissal of the petition. The District Court adopted the Magistrate Judge’s recommendation, and the Court of Appeals affirmed, concluding that

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

erroneous does not compromise the authority of a district 

court sua sponte to dismiss a habeas petition as untimely, 

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

(CA11 2004). 

The question presented is whether a federal court lacks

authority, on its own initiative, to dismiss a habeas petition as untimely, once the State has answered the petition 

without contesting its timeliness. Ordinarily in civil 

litigation, a statutory time limitation is forfeited if not 

raised in a defendant’s answer or in an amendment 

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

we would count it an abuse of discretion to override a 

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

case, however, the federal court confronted no intelligent 

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

of the elapsed time under a statute designed to impose a 

tight time constraint on federal habeas petitioners.1 In 

—————— 

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

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

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

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

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

AEDPA, Congress prescribed a uniform rule: “A 1-year period of limita-
Cite as: 547 U. S. ____ (2006) 3 

Opinion of the Court 

the circumstances here presented, we hold, the federal 

court had discretion to correct the State’s error and, accordingly, to dismiss the petition as untimely under

AEDPA’s one-year limitation. 

I 

Petitioner Patrick A. Day was convicted of seconddegree murder and sentenced to 55 years in prison by a

Florida trial court. Day unsuccessfully appealed the 

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

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

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

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

unsuccessfully sought state postconviction relief. The 

Florida trial court’s judgment denying relief was affirmed

on appeal, and the appellate court issued its mandate on

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

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

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

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

habeas relief asserting several claims of ineffective assistance of trial counsel. A Magistrate Judge, finding the

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

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

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

defense. See supra, at 2. Overlooking controlling Eleventh Circuit precedent, see Coates, 211 F. 3d, at 1227, the 

State calculated that the petition had been “filed after 352

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

24. The State’s answer and attachments, however, revealed that, had the State followed the Eleventh Circuit’s 

instruction on computation of elapsed time, the timeliness 

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

—————— 

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

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

U. S. C. §2244(d)(1). 
4 DAY v. MCDONOUGH 

Opinion of the Court 

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

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

state-court conviction and the filing of his federal habeas 

petition.2 

A newly assigned Magistrate Judge noticed the State’s

computation error and ordered Day to show cause why his

federal habeas petition should not be dismissed as untimely. Id., at 26–30. Determining that Day’s responses 

did not overcome the time bar, the Magistrate Judge

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

Cert. 8a–15a, and the District Court adopted that recommendation, id., at 7a. 

The Eleventh Circuit granted Day a certificate of appealability on the question “[w]hether the district court 

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

petition . . . after the [State] had conceded that [the] petition was timely.” App. 37. In a decision rendered two 

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

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

that, “even though the statute of limitations is an affirmative defense, the district court may review sua sponte the 

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

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

—————— 

2Day urges this Court to find his petition timely. He asserts that the 

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

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

petitioned this Court to review the denial of his motion for state postconviction relief. See Brief for Petitioner 45–50. This question was not

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

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

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

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

question whether AEDPA’s time limitation is tolled during the pendency of a petition for certiorari from a judgment denying state postconviction relief. The instant opinion, we emphasize, addresses only the 

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

correctness of its decision that the limitation period had run. 
Cite as: 547 U. S. ____ (2006) 5 

Opinion of the Court 

sion of timeliness “was patently erroneous,” the Eleventh 

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

at 1192–1195.3 

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

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

question whether a district court may dismiss a federal 

habeas petition as untimely under AEDPA, despite the 

State’s failure to raise the one-year limitation in its answer to the petition or its erroneous concession of the

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

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

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

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

1142 (CA9 2004). 

II 

A statute of limitations defense, the State acknowledges, 

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

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

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

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

—————— 

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

mandatory a district court’s sua sponte application of AEDPA’s oneyear limitation, even when the respondent elects to waive the limitation and oppose the petition solely on the merits. See Tr. of Oral Arg. 

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

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

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

federal statute of limitations.” 391 F. 3d, at 1194. We read the Eleventh Circuit’s summary disposition in line with that court’s description

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

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

sua sponte the timeliness of [a federal habeas] petition.’ ” Ibid. (referring to Jackson v. Secretary for Dept. of Corrections, 292 F. 3d, at 1349 

(emphasis added)); see also 391 F. 3d, at 1195 (State’s “patently erroneous” concession of timeliness “does not compromise the authority of a 

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

under AEDPA’s one-year limitation (emphasis added)). 
6 DAY v. MCDONOUGH 

Opinion of the Court 

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

(defendant forfeited untimeliness argument “by failing to 

raise the issue until after [the] complaint was adjudicated 

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

resembles other threshold barriers—exhaustion of state 

remedies, procedural default, nonretroactivity—courts

have typed “nonjurisdictional,” although recognizing that

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

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

statute of limitation promotes judicial efficiency and 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.”). 

On the exhaustion of state remedies doctrine, requiring 

state prisoners, before invoking federal habeas jurisdiction, to pursue remedies available in state court, Granberry v. Greer, 481 U. S. 129 (1987), is the pathmarking 

case. We held in Granberry that federal appellate courts

have discretion to consider the issue of exhaustion despite

the State’s failure to interpose the defense at the districtcourt level. Id., at 133.4 Later, in Caspari v. Bohlen, 510 

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

court may, but need not, decline to apply [the nonretroactivity rule announced in Teague v. Lane, 489 U. S. 288, 

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

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

nonretroactivity defense that State raised only in Supreme

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

discretion to reach” the argument).

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

—————— 

4 In AEDPA, enacted nearly a decade after Granberry, Congress expressly provided that “[a] State shall not be deemed to have waived the 

exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the 

requirement.” 28 U. S. C. §2254(b)(3). 
Cite as: 547 U. S. ____ (2006) 7 

Opinion of the Court 

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

unanimously held that, in appropriate circumstances, 

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

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

present an alleged constitutional error in state court, and

the consequent adequacy and independence of state-law 

grounds for the state-court judgment. See Brewer v. Marshall, 119 F. 3d 993, 999 (CA1 1997); Rosario v. United 

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

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

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

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

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

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

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

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

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

2002).

Petitioner Day relies heavily on Rule 4 of the Rules

Governing Section 2254 Cases in the United States District Courts (Habeas Rules), i.e., the procedural Rules

governing federal habeas petitions from state prisoners, in

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

court sua sponte only at the preanswer, initial screening 

stage. Habeas Rule 4 provides that district courts “must 

promptly examine” state prisoner habeas petitions and 

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

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

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

authority to rule the petition untimely sua sponte.6 At 

—————— 

5 Trest held that a Court of Appeals was not obliged to raise procedural default on its own initiative, but declined to decide whether 

courts have discretion to do so. 522 U. S., at 89. 6Were we to accept Day’s position, courts would never (or, at least,

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

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

Opinion of the Court 

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

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

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

inconsistent with any statutory provisions or these rules, 

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

Under the Civil Procedure Rules, a defendant forfeits a 

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

not asserted in its answer, see Rule 12(b), or an amendment thereto, see Rule 15(a). 

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

of limitations is akin to other affirmative defenses to 

habeas petitions, notably exhaustion of state remedies, 

procedural default, and nonretroactivity. Indeed, the 

statute of limitations is explicitly aligned with those other 

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

which provides that the State’s answer to a habeas petition “must state whether any claim in the petition is

barred by a failure to exhaust state remedies, a procedural

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

considerations of comity, finality, and the expeditious

handling of habeas proceedings that motivated AEDPA,8 

the State maintains, counsel against an excessively rigid 

or formal approach to the affirmative defenses now listed

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

134, as the instructive case, the State urges express recognition of an “intermediate approach.” Brief for Respon-

—————— 

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

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

from the state-court proceedings. 7The Habeas Rules were amended after the proceedings below. We 

cite the current version because both parties agree that the amendments to Rules 4 and 11, effective December 1, 2004, wrought no 

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

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

court judgments”; it “reduces the potential for delay on the road to finality[.]” (quoting Duncan v. Walker, 533 U. S. 167, 179 (2001))). 
Cite as: 547 U. S. ____ (2006) 9 

Opinion of the Court 

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

25. In lieu of an inflexible rule requiring dismissal whenever AEDPA’s one-year clock has run, or, at the opposite 

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

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

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

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

the administration of justice is better served by dismissing

the case on statute of limitations grounds or by reaching 

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

“intermediate approach” in this particular case, the State

argues, the petition should not be deemed timely simply 

because a government attorney calculated the days in

between petitions incorrectly. 

We agree, noting particularly that the Magistrate

Judge, instead of acting sua sponte, might have informed 

the State of its obvious computation error and entertained 

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

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

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

response to habeas petition may be amended by leave of 

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

raised the statute of limitations sua sponte, the State 

agreed with that disposition, and the Court of Appeals

treated that agreement as a constructive amendment to

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

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

we see no dispositive difference between that route, and 

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

the State did not respond to the show cause order because

its concession of timeliness was based on an erroneous 

calculation and it agreed the petition should be dismissed 

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

—————— 

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

J., dissenting). 
10 DAY v. MCDONOUGH 

Opinion of the Court 

(2000) (admonishing against interpretation of procedural

prescriptions in federal habeas cases to “trap the unwary 

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

(1982))).

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

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

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

would make scant sense to distinguish in this regard 

AEDPA’s time bar from other threshold constraints on 

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

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

par with “failure to exhaust state remedies, a procedural 

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

(“AEDPA’s statute of limitations advances the same concerns as those advanced by the doctrines of exhaustion 

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

We stress that a district court is not required to doublecheck the State’s math. If, as this Court has held, 

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

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

231 (2004),

10 then, by the same token, they surely have no 

obligation to assist attorneys representing the State.

Nevertheless, if a judge does detect a clear computation 

error, no Rule, statute, or constitutional provision commands the judge to suppress that knowledge. Cf. Fed. 

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

from oversight or omission may be corrected by the court 

—————— 

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

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

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

habeas petitioner to remain in federal court while exhausting unexhausted claims in state court. 542 U. S., at 231. In a later decision, 

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

discretion to stay a mixed petition (i.e., one that includes both exhausted and unexhausted claims) to allow a habeas petitioner to 

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

then return to federal court for review of his perfected petition. 
Cite as: 547 U. S. ____ (2006) 11 

Opinion of the Court 

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

party”). 

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

must accord the parties fair notice and an opportunity to

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

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

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

petitioner is not significantly prejudiced by the delayed 

focus on the limitation issue, and “determine whether the 

interests of justice would be better served” by addressing

the merits or by dismissing the petition as time barred. 

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

Judge gave Day due notice and a fair opportunity to show

why the limitation period should not yield dismissal of the 

petition. The notice issued some nine months after the 

State answered the petition. No court proceedings or

action occurred in the interim, and nothing in the record 

suggests that the State “strategically” withheld the defense or chose to relinquish it. From all that appears in

the record, there was merely an inadvertent error, a miscalculation that was plain under Circuit precedent, and no

abuse of discretion in following this Court’s lead in Granberry and Caspari, described supra, at 6–7. 

* * * 

For the reasons stated, the judgment of the Court of

Appeals is 

Affirmed. 

—————— 

11A district court’s discretion is confined within these limits. As earlier noted, should a State intelligently choose to waive a statute of

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

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

_________________ 

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

STEVENS, J., dissenting from judgment 

SUPREME COURT OF THE UNITED STATES 

No. 04–1324 

PATRICK DAY, PETITIONER v. JAMES R. 

MCDONOUGH, INTERIM SECRETARY, 

FLORIDA DEPARTMENT OF 

CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 25, 2006] 

JUSTICE STEVENS, with whom JUSTICE BREYER joins,

dissenting from the judgment. 

 Although JUSTICE BREYER and I disagree on the proper

answer to the question on which we granted certiorari—in 

my view, JUSTICE GINSBURG’s opinion for the Court correctly decides that question, while JUSTICE BREYER has 

joined JUSTICE SCALIA’s dissenting opinion—we agree on

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

should announce its opinion now, but it should postpone 

the entry of judgment pending our decision in Lawrence v. 

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

JUSTICE GINSBURG notes, the question whether the Court

of Appeals correctly concluded that Day’s habeas corpus 

petition was barred by the statute of limitations will be

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

It seems improvident to affirm a possibly erroneous Court 

of Appeals judgment that dismissed Day’s habeas petition 

without an evaluation of its merits when we have already 

granted certiorari to address the issue on which the Court 

of Appeals may have erred. Of course, the Court of Appeals may avoid a miscarriage of justice by keeping this

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

would be better practice for us to do so ourselves. Accord-
2 DAY v. MCDONOUGH 

STEVENS, J., dissenting from judgment 

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

judgment at this time. 
_________________ 

_________________ 

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

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 04–1324 

PATRICK DAY, PETITIONER v. JAMES R. 

MCDONOUGH, INTERIM SECRETARY, 

FLORIDA DEPARTMENT OF 

CORRECTIONS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 25, 2006] 

JUSTICE SCALIA, with whom JUSTICE THOMAS and 

JUSTICE BREYER join, dissenting. 

The Court today disregards the Federal Rules of Civil

Procedure (Civil Rules) in habeas corpus cases, chiefly 

because it believes that this departure will make no difference. See ante, at 9. Even if that were true, which it is 

not, I could not join this novel presumption against applying the Civil Rules.

The Civil Rules “govern the procedure in the United

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

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

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

proceedings is not set forth in statutes of the United 

States [or] the Rules Governing Section 2254 Cases [Habeas Rules],” Civil Rule 81(a)(2); see also Habeas Rule 11. 

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

context of habeas suits to the extent that they are not 

inconsistent with the Habeas Corpus Rules,” Woodford v. 

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

or undermine the provisions of the habeas corpus statute, 

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

4–5).

As the Court notes, the Civil Rules adopt the traditional 
2 DAY v. MCDONOUGH 

SCALIA, J., dissenting 

forfeiture rule for unpleaded limitations defenses. See 

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

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

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

proceedings—because there is none. Forfeiture of the 

limitations defense is demonstrably not inconsistent with 

traditional habeas practice, because, as the Court acknowledges, habeas practice included no statute of limitations until 1996. Ante, at 2, n. 1; see also infra, at 3–5. 

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

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

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

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

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

Habeas Rule 4, because Rule 4 provides for sua sponte

screening and dismissal of habeas petitions only prior to 

the filing of the State’s responsive pleading.1 

Most importantly, applying the forfeiture rule to the

limitations period of 28 U. S. C. §2244(d) does not contradict or undermine any provision of the habeas statute. 

Quite the contrary, on its most natural reading, the statute calls for the forfeiture rule. AEDPA expressly enacted,

without further qualification, “[a] 1-year period of limitation” for habeas applications by persons in custody pursuant to the judgments of state courts. §2244(d)(1) (emphasis added). We have repeatedly stated that the enactment

of time-limitation periods such as that in §2244(d), without further elaboration, produces defenses that are non-

—————— 

1The Court observes that “[w]ere we to accept Day’s position, courts

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

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

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

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

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

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

sua sponte.” That is precisely the question before us. 
Cite as: 547 U. S. ____ (2006) 3 

SCALIA, J., dissenting 

jurisdictional and thus subject to waiver and forfeiture. 

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

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

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

540 U. S. 443, 447 (2004). Absent some affirmative incompatibility with habeas practice, there is no reason why

a habeas limitations period should be any different. By

imposing an unqualified “period of limitation” against the 

background understanding that a defense of “limitations” must be raised in the answer, see Civil Rules 8(c),

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

applicable.

Instead of identifying an inconsistency between habeas

corpus practice and the usual civil forfeiture rule, the

Court urges that “it would make scant sense to distinguish 

in this regard AEDPA’s time bar from other threshold 

constraints on federal habeas petitioners” that may be

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

state remedies, procedural default, nonretroactivity, and 

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

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

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

unlike AEDPA’s statute of limitations, these defenses 

were all created by the habeas courts themselves, in the 

exercise of their traditional equitable discretion, see 

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

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

because they were seen as necessary to protect the interests of comity and finality that federal collateral review of 

state criminal proceedings necessarily implicates. See 

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

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

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

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

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

other defenses, no time limitation—not even equitable 
4 DAY v. MCDONOUGH 

SCALIA, J., dissenting 

laches—was imposed to vindicate comity and finality. 

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

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

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

a fortiori that they do not compel making a legislatively 

created, forfeitable time limitation nonforfeitable. 

In fact, prior to the enactment of AEDPA, we affirmatively rejected the notion that habeas courts’ traditionally 

broad discretionary powers would support their imposition 

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

limitations governing federal habeas, and the only laches 

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

defend against the claims raised on habeas”—which was 

imposed by Rule, and not until 1977. Brecht v. Abrahamson, 507 U. S. 619, 637 (1993); see also United States v. 

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

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

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

We repeatedly asserted that the passage of time alone 

could not extinguish the habeas corpus rights of a person 

subject to unconstitutional incarceration. See Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 123 (1956); 

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

better or for worse, this doctrine was so well entrenched 

that the lower courts regularly entertained petitions filed 

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

Bennett, 423 F. 2d 948, 949 (CA8 1970) (40 years); Hamilton v. Watkins, 436 F. 2d 1323, 1325 (CA5 1970) (at least 

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

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

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

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

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

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

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

subject to the very same pleading requirements and forfei-
Cite as: 547 U. S. ____ (2006) 5 

SCALIA, J., dissenting 

ture rule that the Court rejects today for the stricter limitations period of §2244(d). See Smith v. Secretary of New 

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

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

249 (CA5 1982).

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

traditional equitable discretion that governed habeas

proceedings permitted the dismissal of habeas petitions on 

the sole ground of untimeliness. Whether or not it should 

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

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

reliance on pre-existing equitable doctrines like procedural 

default and nonretroactivity is, therefore, utterly misplaced. Nothing in our tradition of refusing to dismiss 

habeas petitions as untimely justifies the Court’s decision 

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

dismissal. 

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

the Court also observes that “the Magistrate Judge, instead of acting sua sponte, might have informed the State

of its obvious computation error and entertained an

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

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

might have obviated this controversy,” the Court concedes, 

“we see no dispositive difference between that route, and 

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

the opposite direction. If there truly were no “dispositive

difference” between following and disregarding the rules

that Congress has enacted, the natural conclusion would

be that there is no compelling reason to disregard the Civil 

Rules.2 Legislatively enacted rules are surely entitled to 

—————— 

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

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

“if a [district] judge does detect a clear computation error, no Rule, 
6 DAY v. MCDONOUGH 

SCALIA, J., dissenting 

more respect than this apparent presumption that, when

nothing substantial hangs on the point, they do not apply 

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

adopts today, which will apparently require the development of new rules from scratch, there already exists a 

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

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

Miller §§1484–1488 (2d ed. 1990 and Supp. 2005). Ockham is offended by today’s decision, even if no one else is. 

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

between the Civil Rules and the sua sponte regime of such 

cases as Granberry and Caspari—both of which involve 

sufficiently significant departures from ordinary civil 

practice as to require clear authorization from the statute,

the Rules, or historical habeas practice. First, the Granberry regime allows the forfeited procedural defense to be 

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

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

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

Ordinary civil practice does not allow a forfeited affirmative defense whose underlying facts were not developed

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

Weinberger v. Salfi, 422 U. S. 749, 764 (1975); Metropolitan Housing Development Corp. v. Arlington Heights, 558 

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

—————— 

statute, or constitutional provision commands the judge to suppress 

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

issue to the State’s attention and invite a motion to amend the pleadings under Civil Rule 15(a), under which “leave shall be freely given 

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

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

comity and finality interests that the Court thinks require a departure

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

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

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

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

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

SCALIA, J., dissenting 

constitutional errors in criminal trials for the first time on 

appeal is narrowly circumscribed. See Fed. Rule Crim. 

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

(1993). Comity and finality justified this departure from

ordinary practice for historically rooted equitable defenses

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

limitations was not such a defense.

 Also, Granberry and the like raise the possibility that

the courts can impose a procedural defense over the

State’s affirmative decision to waive that defense. The 

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

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

the principal justification for allowing such defenses to be

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

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

and conservation of judicial resources’” and “the expeditious handling of habeas proceedings.” Ante, at 6, 8 (quoting Acosta v. Artuz, 221 F. 3d 117, 123 (CA2 2000)). There 

are many reasons why the State may wish to disregard

the statute of limitations, including the simple belief that

it would be unfair to impose the limitations defense on a

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

court would not abuse its discretion in overriding the

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

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

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

—————— 

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

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

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

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

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

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

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

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

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

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

assertion, the Court cites nothing but its own earlier statement: “Ordi-
8 DAY v. MCDONOUGH 

SCALIA, J., dissenting 

pleading over his objection would constitute a clear abuse 

of the trial court’s discretion. 

In sum, applying the ordinary rule of forfeiture to the 

AEDPA statute of limitations creates no inconsistency 

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

unwarranted expansion of the timeliness rule enacted by 

Congress that is inconsistent with the statute, the Habeas

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

hold that the ordinary forfeiture rule, as codified in the

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

respectfully dissent. 

—————— 

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

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

Proc. 8(c), 12(b), and 15(a). And we would count it an abuse of discretion to override a State’s deliberate waiver of a limitations defense.” 

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

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

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

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

§2244(d)(1)(A), to reject (as it does) the first part of the ordinary practice (automatic forfeiture), while embracing the second (inability to

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

surely applies just as well to the second: Section 2244(d)(1)(A) supposedly “‘implicate[s] values beyond the concerns of the parties,’” including

“‘judicial efficiency,’” “‘conservation of judicial resources’” and “expeditious handling of habeas proceedings.” Ante, at 6, 8.