Wood v. Milyard
February 27, 2012
Case #: 10-9995
403 Fed. Appx. 335 (10th Cir. 2010)
Full Text Opinion: http://www.bloomberglaw.com/public/document/Wood_v_Milyard_403_Fed_Appx_335_10th_Cir_2010_Court_Opinion
Habeas Corpus: (1) Whether an appellate court has the authority to raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense; and (2) whether the state’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of [petitioner’s] habeas petition,” amounts to a waiver of any statute of limitations defense.
Petitioner filed a petition in federal court for a writ of habeas corpus alleging that his convictions for felony murder and second-degree murder violated the Sixth Amendment privilege against double jeopardy and challenging the validity of his jury trial waiver. At trial, the state respondent stated that it “will not challenge, but [is] not conceding, the timeliness of [petitioner’s] habeas petition.” The district court denied relief. The Court of Appeals for the Tenth Circuit granted petitioner a certificate of appealability on the merits of his habeas appeal and additionally requested that the parties address the timeliness of the habeas petition. The Tenth Circuit determined that petitioner’s appeal was untimely under the Antiterrorism and Effective Death Penalty Act (AEDPA) and affirmed the denial.
On review, petitioner argues that the one-year limitations period for filing habeas petitions in the AEDPA, 28 U.S.C. §2244(d), is an affirmative defense subject to waiver and forfeiture. As such,
petitioner argues that respondent waived this defense when it failed to argue it as an affirmative defense at trial. Petitioner further argues that the court of appeals lacks the authority to raise sua
sponte a statute of limitations defense. [Summarized By: Molly Lehrkind]