Forfeited Issue Shouldn't Have Affected Inmate

     (CN) - An appellate panel should not have used timeliness to deny a prisoner's habeas petition when the state chose not to raise the issue, the Supreme Court ruled Tuesday.
     "A court is not at liberty, we have cautioned, to bypass, override, or excuse a state's deliberate waiver of a limita­tions defense," Justice Ruth Bader Ginsburg wrote for the court, which was essentially unanimous except for an opinion concurring in judgment.
     The decision gives a new shot at relief to Patrick Wood, who is serving life in prison for a murder-robbery at a Colorado pizza shop.
     Wood did not seek federal habeas relief until 2008, four years after Wood unsuccessfully sought postconviction relief at the state-court level for the second time.
     Concerned about timeliness, the District Court instructed Colorado to prepare a brief on the issue.
     The timeline is a complicated consideration because the deadline for Wood to seek habeas relief would have expired in 1997 unless he had a "properly filed" applica­tion for state postconviction relief "pending" in Colorado state court.
     Wood claims that his initial 1995 petition to vacate conviction remained pending until he filed the second motion in 2004.
     The state defendants responded that they would "not challenge, but are not conceding, the timeliness of Wood's [federal] habeas petition." Colorado did not contest that the 2004 motion was "properly filed," and his federal petition would be timely if the 1995 did indeed remain pending in state court for the better part of a decade.
     A federal judge ultimately dismissed Wood's petition on the merits, and Wood appealed to the 10th Circuit. The federal appeals court also requested briefing on the timeliness issue, and then rejected the petition as time-barred.
     In taking up the case last year, the Supreme Court said it would answer whether a court of appeals can initiate concerns over timeliness, and whether it can still do so if the state has forfeited the issue.
     The 11-page decision answered the first question in the affirmative.
     "We decline to adopt an absolute rule barring a court of appeals from raising, on its own motion, a forfeited timeliness defense," Ginsburg wrote.
     "Courts of appeals, like district courts, have the au­thority - though not the obligation - to raise a forfeited timeliness defense on their own initiative," she added.
     Justices Clarence Thomas and Antonin Scalia blasted this finding in an opinion concurred in judgment.
     "I cannot join the court's holding that a court of appeals has discretion to consider sua sponte a forfeited limitations defense," Thomas wrote.
     The opinion says "appellate courts, moreover, are particularly ill suited to consider issues forfeited below. Unlike district courts, courts of appeals cannot permit a state to amend its answer to add a defense, nor can they develop the facts that are often necessary to resolve ques­tions of timeliness."
     Though the majority concluded otherwise, they continued that Colorado's representations to the District Court should have foreclosed this analysis on Wood's appeal.
     "For good reason, appellate courts ordi­narily abstain from entertaining issues that have not been raised and preserved in the court of first instance," Ginsburg wrote. "That restraint is all the more appropriate when the appellate court itself spots an issue the parties did not air below, and therefore would not have antici­pated in developing their arguments on appeal. ...When a court of appeals raises a procedural impediment to disposition on the mer­its, and disposes of the case on that ground, the district court's labor is discounted and the appellate court acts not as a court of review but as one of first view.
     "In light of the foregoing discussion of the relevant con­siderations, we hold that the Tenth Circuit abused its discretion when it dismissed Wood's petition as untimely," the decision states.