Courts May Invoke Threshold Bars Over the State's Miscalculations

Day v. McDonough

The Antiterrorism and Effective Death Penalty Act puts a one year limit on appeals, but does not count the time that an appellant waits on a timely filed application for postconviction relief, towards that one year period (which begins after final judgment on direct review or the expiration of its availability). Here, the petitioner filed an application for a writ of habeas corpus after the one year time period. The State did not argue that the application was untimely, but apparently miscalculated its timeliness. A federal appeals court may not, on its own initiative disregard the State’s conscious decision to waive the limitations defense, and the failure to raise such a defense in responding submissions or amendments thereto is generally considered to be a waiver of the defense. The question here is whether, when the State does not consciously choose to waive the defense, but simply miscalculates, a court may deem to application untimely on its own initiative. Documents submitted by the State, which concede the application’s timeliness show that if the State had followed the Eleventh Circuit’s instruction on calculating timeliness no such concession would have been made.

Timeliness is a threshold bar, also termed “nonjurisdictional,” others of which include exhaustion of state remedies, procedural default, and nonretroactivity. The Court has held that the first may be invoked by a court despite the respondent’s failure to raise the issue. The AEDPA expressly mandates such a rule with regards to the exhaustion requirement. Day argues that because a Court is required to “promptly examine” an application upon its submission the court may not invoke a procedural bar on its own initiative after a petition has been answered. The Court holds that, with normal procedural safeguards (such as the requirement that it not be prejudicial and the recognition that a State may choose not to raise the issue), a Court need not suppress its independent conclusion regarding the timeliness of an application, but meanwhile need not make such an investigation. This decision implies that the same would hold for other nonjurisdictional rules.

Justice Stevens dissents, and suggests that it is improvident to rule on this case before ruling on how to calculate the tolling period, as the Court has already decided to do in a later case, an issue which will affect the outcome of this case as well. He suggests that the appeals court keep this case on its docket until the late decision deciding how to calculate the time has been decided.

The dissent argues that the Rules of Civil Procedure are binding to the extent that they do not contradict express federal law. Therefore, according to the dissent, because the Rules of Civil Procedure include the rule that failure to raise an issue amounts to forfeiture, and because this rule is not inconsistent with the express law governing habeas petitions, or a court’s sua sponte (own initiative) review, the Rules should carry. Justice Scalia argues that other nonjurisdictional rules were created by habeas courts in order to further the interests of comity and finality that habeas petitions served. Since the time limitation was not created in the same way, according to the dissent, there is no reason to treat it in the same way, even if it was arguably created for the same purpose. Since the Court unanimously agrees 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,” the dissent argues that there was no reason to diverge from the Rules of Civil Procedure