Day v. McDonough

(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 judg
ment 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” appli
cation 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 De
cember 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 peti
tioner’s responses inadequate and recommended dismissal. The Dis
trict 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 dis
cretion 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 limi
tations 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 ei
ther 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. Rather, the Court holds that a district court has discretion to
decide whether the administration of justice is better served by dis
missing 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 Gran-
berry v. Greer, 481 U. S. 129, 133, this Court held that federal appel
late courts have discretion to consider a state prisoner’s failure to ex
haust available state remedies before invoking federal habeas
jurisdiction despite the State’s failure to interpose the exhaustion de
fense 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 par
ticularly 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 as
sure itself that the petitioner is not significantly prejudiced by the de
layed focus on the limitation issue, and “determine whether the in
terests 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 dis
missal. 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, Wash
ington, 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 Anti
terrorism 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 re
view.” 28 U. S. C. §2244(d)(1)(A). The one-year clock is
stopped, however, during the time the petitioner’s “prop
erly 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 miscalcu
lated the tolling time. Under Circuit precedent, the un
tolled 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 Dis
trict Court adopted the Magistrate Judge’s recommenda
tion, 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 peti
tion 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
——————
1 Until 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
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Opinion of the Court

the circumstances here presented, we hold, the federal
court had discretion to correct the State’s error and, ac
cordingly, to dismiss the petition as untimely under
AEDPA’s one-year limitation.
I
Petitioner Patrick A. Day was convicted of second-
degree 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 assis
tance 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 Elev
enth 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, re
vealed 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 un
timely. 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 recom
mendation, id., at 7a.
The Eleventh Circuit granted Day a certificate of ap
pealability 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] peti
tion 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 affirma
tive 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
——————
2 Day
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 post-
conviction 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 pend
ency of a petition for certiorari from a judgment denying state postcon
viction 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 an
swer 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
——————
3 Day reads the Eleventh Circuit’s opinion in this case as rendering

mandatory a district court’s sua sponte application of AEDPA’s one-
year limitation, even when the respondent elects to waive the limita
tion 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 Elev
enth 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. (refer
ring 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 errone
ous” 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 con
servation of judicial resources, safeguards the accuracy of
state court judgments by requiring resolution of constitu
tional questions while the record is fresh, and lends final
ity to state court judgments within a reasonable time.”).
On the exhaustion of state remedies doctrine, requiring
state prisoners, before invoking federal habeas jurisdic
tion, to pursue remedies available in state court, Gran-
berry 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 district-
court 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 nonretroac
tivity 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 ex

pressly provided that “[a] State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the re
quirement 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. Mar
shall, 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 Dis
trict 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 proce

dural default on its own initiative, but declined to decide whether
courts have discretion to do so. 522 U. S., at 89.
6 Were 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 amend
ment 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 peti
tion “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 rec
ognition 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.
7 The Habeas Rules were amended after the proceedings below. We

cite the current version because both parties agree that the amend
ments to Rules 4 and 11, effective December 1, 2004, wrought no
relevant substantive change.
8 See 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 final
ity[.]” (quoting Duncan v. Walker, 533 U. S. 167, 179 (2001))).
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Opinion of the Court

dent 14 (internal quotation marks omitted); see also id., at
25. In lieu of an inflexible rule requiring dismissal when
ever 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 con
cerns 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 double-
check 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 com
mands 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
——————
10 The 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 unex
hausted 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 ex
hausted 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.
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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 de
fense or chose to relinquish it. From all that appears in
the record, there was merely an inadvertent error, a mis
calculation that was plain under Circuit precedent, and no
abuse of discretion in following this Court’s lead in Gran-
berry and Caspari, described supra, at 6–7.
* * *
For the reasons stated, the judgment of the Court of
Appeals is
Affirmed.

——————
11 Adistrict court’s discretion is confined within these limits. As ear
lier 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 cor
rectly 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 Ap
peals 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 differ
ence. See ante, at 9. Even if that were true, which it is
not, I could not join this novel presumption against apply
ing 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 [Ha
beas 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 ac
knowledges, habeas practice included no statute of limita
tions 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 contra
dict or undermine any provision of the habeas statute.
Quite the contrary, on its most natural reading, the stat
ute calls for the forfeiture rule. AEDPA expressly enacted,
without further qualification, “[a] 1-year period of limita
tion” for habeas applications by persons in custody pursu
ant to the judgments of state courts. §2244(d)(1) (empha
sis added). We have repeatedly stated that the enactment
of time-limitation periods such as that in §2244(d), with
out further elaboration, produces defenses that are non
——————
1 The
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 in
compatibility 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 “limita-
tions” 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 inter
ests 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 affirma
tively 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. Abraham-
son, 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 Pennsyl
vania 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); Hamil
ton 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 limi
tations 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 mis
placed. Nothing in our tradition of refusing to dismiss
habeas petitions as untimely justifies the Court’s decision
to beef up the presumptively forfeitable “limitations pe
riod” 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, in
stead 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 develop
ment 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). Ock
ham 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 Gran-
berry 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 affirma
tive 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); Metropoli
tan 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 plead
ings 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 expedi
tious handling of habeas proceedings.” Ante, at 6, 8 (quot
ing 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 discre
tion 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 prac
tice (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) suppos
edly “‘implicate[s] values beyond the concerns of the parties,’” including
“‘judicial efficiency,’” “‘conservation of judicial resources’” and “expedi
tious handling of habeas proceedings.” Ante, at 6, 8.