petition

Wood v. Milyard

Issues

In a habeas proceeding, does the government’s assertion that it “will not challenge, but [is] not conceding” the timeliness of a prisoner’s habeas petition waive the state’s timeliness defense, and, if so, does an appellate court have the authority to raise that timeliness issue on its own?

Court below

United States Court of Appeals for the Tenth Circuit

Petitioner Patrick Wood filed a petition for writ of habeas corpus on February 25, 2008, in order to challenge his murder conviction. On appeal, the appellate court raised, sua sponte, a 28 U.S.C. § 2244(d) statute of limitations defense that barred Wood’s claims. Wood argues that appellate courts lack authority to raise a statute of limitations defense sua sponte, because an affirmative defense is forfeited if not raised, and because the government waived its statute of limitations defense at the district court level. In opposition, Kevin Milyard argues that appellate courts do have authority to raise a statute of limitations defense sua sponte, assuming the state did not intelligently waive the defense in the district court. In determining appellate court capacity to independently raise statute of limitations defenses, this decision will impact the finality of lower court decisions.

Questions as Framed for the Court by the Parties

Does an appellate court have the authority to raise sua sponte a 28 U.S.C. § 2254(d) statute of limitations defense?
Does the State’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amount to a deliberate waiver of any statute of limitations defense the State may have had?

On January 27, 1986, Petitioner Patrick Wood attempted to rob a pizza shop with a revolver, killing an employee in the attempt. See Wood v. Milyard, 403 Fed.Appx. 335, 336 (10th Cir.