Day v. Crosby


Whether after an individual files a habeas corpus petition in federal court, and the State admits in its answer that the petition was filed within the statute of limitations, the State has then waived a statute of limitations defense to a petition, which in fact was not timely filed.
Whether the district court, after asking the State to file an answer to a habeas petition, and after the State's answer is filed, can then dismiss the habeas petition of its own volition under Habeas Rule 4.
Oral argument: 
February 27, 2006

Patrick Day is currently incarcerated in the state of Florida, serving a 55-year sentence for second-degree murder. Florida State Courts affirmed his conviction, and in 2003 Day petitioned for habeas corpus review in United States District Court. Under 28 U.S.C. 2254, Day was allowed to petition for a writ of habeas corpus, but the habeas rules provide a statute of limitations for filing the writ, and allows a district court to dismiss the petition sua sponte (or on its own volition) for any one of a number of reasons. In fact, Day's petition was late, but the district court did not dismiss the petition for this reason until after it asked for the State to file a response to Day's petition. In its response the state failed to raise the statute of limitations defense. In this case the Supreme Court must decide whether the State waived its statute of limitations defense when it failed to raise the defense in its responsive pleading and whether the district court was correct in dismissing the petition sua sponte even after the State erroneously admitted Day's petition was timely in its response. The case raises legal and policy considerations, especially in regard to the federal review of otherwise final state court criminal decisions.

Questions as Framed for the Court by the Parties 

Does the State waive a limitations defense to a habeas corpus petition when it fails to plead or otherwise raise that defense and expressly concedes that the petition was timely?
Does Habeas Rule 4 permit a district court to dismiss a habeas petition sua sponte after the State has filed an answer based on a ground not raised in the answer?


State Court Proceedings
A Florida jury convicted Patrick Day of second degree murder and sentenced him to prison in September 1998. Brief for the Petitioner ("Pet'r"). at 3. Day appealed his conviction to the Florida First District Court of Appeal, which affirmed the sentence on December 21, 1999. Respondent's Brief on the Merits ("Respt") at 1. Day did not file a petition for certiorari to appeal the decision to the United States Supreme Court, thereby allowing the March 20, 2000 deadline to pass. Id. On March 9, 2001, Day filed a pro se motion in state court for post-conviction relief, alleging ineffective assistance of counsel. Pet'r at 4. The court denied the petition, and the First District Court of Appeal affirmed on October 9, 2002 and issued its mandate on December 3, 2002. Resp't't at 1. Once again Day did not file a petition for certiorari with the Supreme Court, the deadline for which was February 13, 2003. Id.
Federal Habeas Corpus Proceedings
Day filed a petition for a writ of habeas corpus in federal district court on January 8, 2003 challenging the legality of his state court conviction. Resp't at 1. In his habeas petition, Day repeated his claims of ineffective assistance of counsel at trial. Pet'r at 5. The magistrate judge examining the petition determined that it was in proper form and ordered the state to file an answer within forty-five days. Id. In its answer, filed on March 19, 2003, the state mistakenly stated that Day's petition was filed within the time limit required by statute, meaning that Day had filed his petition within the proper amount of time after the conclusion of direct review. Id. The state's answer did not present a statute of limitations defense. Id. A valid statute of limitations defense is grounds for a judge to dismiss the petition because it was not filed within the statutory time limit. Instead, the state asserted that Day filed the petition after 352 days of untolled time, meaning that this time was not included in the period of the statute of limitations, from the end of state post-conviction proceedings. Resp't at 1.
In June the petition was referred to a new magistrate judge, who in December 2003 issued an order sua sponte, (on his own and without a request from either party) stating that Day's petition was untimely. Pet'r at 5. Day contested that because the state had agreed in its answer that his petition was timely that the state thereby waived that defense. Day argued further that under 28 U.S.C. § 2244(d)(2) the limitations period in 28 U.S.C. § 2244(d) was tolled during the time when he could have sought certiorari to the United States Supreme Court from the First District's denial of post-conviction relief. Resp't at 1. The magistrate judge disagreed and recommended that Day's petition should be dismissed, reasoning that 353 days had elapsed between the expiration of time for seeking certiorari on direct review, March 20, 2000, and the beginning of the tolling period for state post-conviction review, March 9, 2001. Pet'r at 6. The judge held that the tolling period ended when the court of appeals issued its mandate on December 3, 2002 and that the one-year limitations period expired on December 16, 2002. Id. Additionally, the magistrate judge denied Day's equitable tolling claim. Resp't at 2.The district court adopted the magistrate judge's recommendations and dismissed the petition. Id. On appeal, the Court of Appeals for the Eleventh Circuit addressed the question of whether the district court erred in addressing the timeliness of Day's petition after the state conceded that it was timely. Id. The Eleventh Circuit affirmed the district court, agreeing with the magistrate court as to the end of the tolling period and finding the petition to be twenty-three days late. Id. at 6-7. The court ruled that the state's concession as to the petition's timeliness was "patently erroneous," and its failure to plead the defense of limitations did not bar the application of the statute of limitations defense. Id. at 7. In the interests of "comity, finality, and federalism," the Eleventh Circuit ruled that the federal courts have an obligation to enforce the federal statute of limitations, even sua sponte in the event the state failed to plead it. Id.


Habeas corpus petitions are writs utilized to bring an individual before a court in order to challenge a detention that the individual believes is illegal. Black's Law Dictionary 728 (8th ed. 2004). Though the contested detention usually results from a criminal prosecution, habeas corpus petitions are civil proceedings, and thus governed by the Federal Rules of Civil Procedure ("Rules of Civil Procedure"). Fed. R. Civ. P. 81(a)(2); Habeas Rule 11. Congress can enact rules that specifically apply to habeas proceedings, but where they have not the normal rules of civil procedure apply. See id.
The first question, in this case, is whether a state, by answering the habeas corpus petition and failing to plead that the statute of limitations has expired, has, therefore, waived that affirmative defense. The answer to this question may seem clear. However, during the time Petitioner Day's case was pending in the lower courts, the Habeas Rules did not provide an answer to this question-meaning, it was impossible to tell by looking solely at the Habeas Rules whether the state could preserve a statute of limitations defense after filing its answer. See Brief for Petitioner at 2. Thus, given Rule 81(a)(2), it appears that the answer must be sought in the Rules of Civil Procedure. Rule 8(c) states that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and any other . . . affirmative defense." Fed. R. Civ. P (8)(c). Further, Rule 8(c) provides that "[e]very defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required . . .." Fed. R. Civ. P. 12(b).
Thus, taken together, these rules require that in any civil matter where Congress has not enacted superseding statutes beyond the Rules of Civil Procedure, a party (in this case the state) who fails to assert a statute of limitations defense in an answer to a complaint (in this case the habeas corpus petition) permanently waives that defense.� Accordingly, under this reading of the law, the state by failing to raise the statute of limitations as an affirmative defense in its answer to Day's habeas corpus petition permanently waived the defense.
However, beyond a strict textual interpretation of the statutes, policy reasons and interests beyond those of the parties involved may weigh against a strict application of the Rules of Civil Procedure. Brief for Respondent at 5. The state has a strong interest in establishing finality in convictions that have proceeded through the state court system, ending with an affirmation of the conviction. Id. at 6. "Finality is essential to both the retributive and deterrent functions of the criminal law." Calderon v. Thompson, 523 U.S. 538, 554 (1998). In addition to finality, the Supreme Court will also consider comity and federalism in deciding this issue. Brief for Respondent at 6. The Court has stated in the past that "liberal allowances of habeas diminishes the significance of state trial court proceedings." Id. Such considerations distinguish habeas proceedings from other civil proceedings. In most other civil proceedings where the statute of limitations is a concern for one party, the implications of waiver to not ripple through the entire criminal justice system of state, as they do in the case of habeas proceedings. This brings the analysis to the second question to be addressed by the Supreme Court.
In deciding whether or not the lower court can sua sponte (or on its own) dismiss the habeas petition, even if the State fails to raise the statute of limitations defense in its answer, the Supreme Court will need to look at both the text of the statutes as well as Congressional intent and policy considerations. First, the Court will have to decide whether Habeas Rule 4 supersedes the Rules of Civil Procedure, and if so, exactly how Habeas Rule 4 should be interpreted. The Court of Appeals interpreted Habeas Rule 4 such that it allows a court to dismiss a habeas petition on the basis of a lapsed Statute of Limitations Rule 4 states that "If 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 . . . . If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order. Habeas Rule 4 (emphasis added).
One reading of Habeas Rule 4 is that the court has the opportunity to analyze the petition and dismiss it before asking for an answer from the state if the petitioner is not entitled to relief in the district court. The court can no longer dismiss the petition sua sponte, however, if the federal judge has already ordered the state to file an answer. In other words, the "if the petition is not dismissed" language of Habeas Rule 4 serves as a line of demarcation-once the judge proceeds to ask for an answer, he or she cannot go back and dismiss the petition sua sponte because the pleading process has begun, just as in any other civil case.
The opposite reading, of course, is that the "if the petition is not dismissed" language is not a line of demarcation. If this is the case, the court's ability to dismiss the petition due to the statute of limitations would then persists throughout the entire case, much like a court's ability in any civil case to dismiss sua sponte for lack of jurisdiction. Of course, the Federal Rules of Civil Procedure do not interpret statute of limitations defenses as liberally as jurisdictional defenses See Fed. R. Civ. P. 8; Fed. R. Civ. P. 12. This is where the aforementioned policy considerations and congressional intent would come into play. The public policy of allowing courts to dismiss invalid habeas petitions at any point in the trial accentuates the congressional intent evident from Habeas Rule 4 to allow sua sponte dismissal. The respondent urges that, "the analysis 'turns not on waiver, but rather on whether courts have the inherent power to protect themselves from habeas abuse, post-answer, consistent with Congress'[s] intent. . . ." Brief for Respondent at 21 (quoting the United States v. Bendolph, 409 F.3d 155, 168 (3d Cir. 2005), petition for cert. filed, (U.S. June 24, 2005) (No. 05-3)).


There is much more at stake in this case than determining a matter of civil procedure for federal courts. The Supreme Court’s decision may affect the role of judges in habeas corpus proceedings, dramatically changing the nature of the American adversarial legal system. Pet's at 8. Under the current procedural law, the parties to a suit determine the issues be decided by the court or the fact-finder through their pleadings. Judges are meant to act as observers or referees, ensuring the parties follow the appropriate rules for orderly and fair proceedings. If a party does not follow the proper procedures, they are sometimes barred from presenting certain claims or defenses. Day contends the state did not follow the proper procedures by not pleading the defense of limitations in its initial answer, thus denying its availability for the rest of the proceedings. In this particular case, the state even agreed with Day that his petition was timely, conceding the very point in dispute! If the Court decides in favor of the respondent, however, thereby allowing judges to identify issues on their own initiative such as the applicability of limitations defenses, courts would then have a more active role in determining the outcome of disputes. Courts would then have greater flexibility to resolve disputes using arguments which were never raised by the parties. This change in the law could be especially disadvantageous to parties such as Day, prisoners and/or other unsophisticated parties arguing complicated matters of procedure on their own. Federal judges, whose dockets are already tremendously overbooked, might find it easier to side with the state in habeas proceedings, as they will now be able to raise defenses that the state did not and use them to dismiss petitions, clearing their docket and lightening their workload in the process. Allowing the writ of habeas corpus, known to many as “the great writ,” to become subject to statutory time limits, often unknown to prisoners arguing on their own behalf, or to judicial intervention, may deny Day and other Americans one of their most important constitutional rights.

Despite the possibility of altering the adversary system, many important principles and values may lead the Supreme Court to affirm the Eleventh Circuit's decision. Three of these principles are finality, comity, and federalism. Respt' at 3. In a habeas petition, the petitioner asks a federal court to review the final decision of a state court and overturn that decision if it is unconstitutional. This is a very significant act, as a decision by a state court and its respective jury, which a state appellate court affirms is usually considered final. By appealing to a federal court, the petitioner may potentially reopen issues that were considered closed and may subject state court juries and judges to reversal and even potential criticism. The American legal system, with fifty state court systems and the federal system, is designed to respect the sovereignty of each jurisdiction, and only in very limited circumstances does the federal court have the power to upset a final state court decision.� In a case such as this one the Court may rule that Day's tardiness in filing his petition prevents them from overturning a final decision of the Florida court, regardless of whether the state or the federal district court raises the limitations defense and demonstrates his error.

In addition, the Supreme Court may reconsider the role of federal judges as gatekeepers of the federal judicial system, charged with enforcing its procedural rules. Federal courts are extremely busy and frequently overworked, with judicial resources stretched thin. The district court and Eleventh Circuit ruled that Day made a procedural error by filing his petition after the statutory time limit expired. Even though the state mistakenly conceded in its answer to Day's petition that his brief was timely, both federal courts held that this was "clearly erroneous." In order to more efficiently manage federal court business, the Court may rule that in cases such as this federal judges may have the discretion to bring up defenses that neither side pleaded if the defense will result in dismissals based on procedural errors. Especially in habeas cases, in which comity, finality, and federalism are so important, the Court may be even more willing to grant federal judges the power to raise defenses sua sponte.


In this case, the main issue confronting the Supreme Court is whether federal judges have the power to raise defenses sua sponte, such as statute of limitations, and dismiss a petition for a writ of habeas corpus on grounds not raised by the state in its answer. The Supreme Court must decide whether, in a case such as this, the state waives a limitations defense by failing to raise it in its answer and expressly conceding that the petition is timely. This decision has significant implications beyond technical matters of civil procedure, as the Court must balance the right of individuals to challenge their state court proceedings, and their guarantee of fair process, with respect for the sovereignty and finality of state court decisions and the proper, efficient use of federal judicial resources.Written by:

Daniel Fisch

Aseem Gupta