                                In the

    United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 16-3316
GERALD WINFIELD,
                                                   Petitioner-Appellee,

                                   v.

STEPHANIE DORETHY, Warden,
                                               Respondent-Appellant.
                      ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
         No. 10 C 4878 — Sharon Johnson Coleman, Judge.
                      ____________________

  ARGUED FEBRUARY 8, 2017 — DECIDED SEPTEMBER 13, 2017
                ____________________

  Before WOOD, Chief Judge, FLAUM, Circuit Judge, and
CONLEY, District Judge.
   Conley, District Judge. On July 25, 2000, after a four-day
bench trial, Cook County Circuit Court Judge Leo E. Holt
found Gerald Winfield guilty of the attempted murder of Jar-



    Of the Western District of Wisconsin, sitting by designation.
2                                                 No. 16-3316

lon Garrett. On direct appeal and again on post-conviction re-
view, the Illinois appellate courts rejected Winfield’s chal-
lenges to his conviction and thirty-year prison sentence. By
agreement of the parties, a federal district court later re-
viewed Winfield’s conviction under a less deferential stand-
ard than called for after the enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), and granted Winfield’s petition for a writ of habeas
corpus. In a motion under Federal Rule of Civil Procedure
59(e), the state then sought to reverse its concession that the
pre-AEDPA standard applied, which the district court under-
standably denied as waived. Nevertheless, we are compelled
by AEDPA case law and principles of state comity to reverse
the district court’s finding of waiver.


                         I. Background
    A. Trial
   The state called two individuals who testified to witness-
ing the shooting of Jarlon Garrett and Dominick Stovall on
October 17, 1998. Stovall died of his wounds, but Garrett sur-
vived and also testified about his recollection of the events
that day.
   Of these three eyewitnesses, the state trial judge found
that Lonnie Hartman was “[t]he only real credible witness.”
Hartman testified that he was sitting in his own car when a
black car pulled up about thirty feet away from him, after
which a black male got out, began shooting at Garrett and
Stovall, then jumped back into the car and fled. According to
Hartman, the shooter was at least six feet tall and wore no
No. 16-3316                                                      3

mask or anything else on his head. Still, Hartman could not
identify Winfield as the shooter.
    The second eyewitness, Lorenzo Curry, testified that from
his vantage point on the porch of a nearby house, he saw Win-
field and another, unidentified individual get out of a black
car and begin shooting at Stovall and Garrett. Curry further
offered a possible motive for the shooting, testifying that he
was present at a dice game in August of 1998, along with Gar-
rett, Stovall, Winfield and his younger brother, Terrance Win-
field. During this game, Curry testified that an argument en-
sued after Terrance bumped Stovall, causing him to drop the
dice and, Stovall claimed, unfairly affecting his roll. However,
the trial judge found Curry’s credibility “worthless” in light
of “extensive impeachment.” In particular, the judge found
Curry’s trial testimony inconsistent with his earlier grand jury
testimony and statements to the police in several, material re-
spects, including the number of shooters, whether he could
identify the shooters and whether the shooters were wearing
masks.
    Finally, Garrett, the surviving victim, corroborated Curry’s
testimony about the dice game, testifying that Stovall and
Winfield began arguing over whether Stovall could attempt
his roll again. As for the shooting, Garrett testified that a black
car pulled up beside Stovall and him, at which point Winfield
emerged, pulled a mask over his face and began shooting at
them. The trial judge found Garrett’s credibility “not much
better” than Curry’s, since he did not identify Winfield as the
shooter at “the earliest opportunity,” including when Detec-
tive Kaizer and his partner interviewed Garrett while he was
receiving treatment at the hospital.
4                                                   No. 16-3316

   Instead, Winfield became a suspect only after Curry and
Garrett identified him as the shooter from a photo array. Fol-
lowing his arrest, Curry and Garrett also repeatedly identified
Winfield in separate lineups. Winfield then gave an oral state-
ment to Detective Kaizer around 10:00 p.m. on December 13,
1998.
    Detective Kaizer then contacted Assistant State’s Attorney
Laura Forester, who prepared a written statement that Win-
field signed at approximately 1:00 a.m. on December 14. The
written statement, which was read into the record at trial, in-
cluded a basic description of the events surrounding an argu-
ment at the dice game. Although Winfield reported that ten-
sions had subsided within a week, the statement also reflected
that members of Garrett’s gang had beaten up his brother Ter-
rance “a couple of weeks after the dice game.” Moreover, the
statement included Winfield’s acknowledgement that he be-
gan to carry a gun in his waistband after Garrett shot at him
“a couple of weeks” before the shooting on October 17, 1998.
    As for the events on that date, the statement indicated that
Winfield got into a black car carrying fellow gang members,
and when he spotted Stovall and Garrett, he and another pas-
senger in the car jumped out and began shooting at them. Ac-
cording to the statement, Winfield tried to re-enter the car, but
because it sped away before he could get back in, he fled on
foot and hid his gun under a bush, returning a few days later
to retrieve and give it to a friend.
    In contrast to his written statement, Winfield denied any
involvement in the shooting at trial, claiming he signed it only
after Detective Kaizer kicked him in the stomach and prom-
ised his release if he signed. Winfield also claimed that he did
No. 16-3316                                                     5

not read the statement before signing it. The trial judge disbe-
lieved this account as well, in part because Winfield appeared
to be “an intelligent, articulate, thoughtful young man.”
    Despite inconsistencies regarding the shooter’s height
(Hartman testified that the shooter was at least six feet, while
Winfield testified that he stands five feet and seven inches tall)
and means of leaving the scene (Hartman testified that the
shooter got back in the black car while Winfield’s written
statement says he fled on foot), as well as inconclusive foren-
sic evidence with respect to the number of shooters, the trial
judge relied principally on admissions in Winfield’s signed
statement in concluding that he shot at Garrett. Accordingly,
although unable to decide whether there were one or two
shooters, the trial judge found Winfield guilty of the at-
tempted murder of Garrett, based on his written statement
that he was carrying a gun because Garrett had shot at him
earlier and the fact that Garrett had been shot. In contrast, the
trial judge found Winfield not guilty of Stovall’s murder, ap-
parently because there was insufficient evidence that a bullet
from Winfield’s gun killed Stovall.
    At Winfield’s sentencing on August 18, 2000, the trial
judge expressed doubt in the rehabilitative capacity of the Il-
linois Department of Corrections generally and in Winfield’s
potential for rehabilitation in particular, which he found was
“somewhere between nil and zero.” As a result, the judge or-
dered Winfield to serve thirty years in prison.
   B. Direct Appeal and Collateral Attacks
   On direct appeal, Winfield’s new counsel raised a single
challenge, claiming the trial judge abused his discretion by
6                                                    No. 16-3316

neglecting to consider the potential for rehabilitation in arriv-
ing at Winfield’s sentence. The appellate court rejected that
argument in light of the judge’s statements that he was aware
of his obligation to consider Winfield’s rehabilitative poten-
tial, even though he apparently discounted that element en-
tirely. The Illinois Supreme Court later denied Winfield’s pe-
tition for leave to appeal that decision.
    Some two months later, Winfield filed a pro se petition in
state court for post-conviction relief, arguing that his appel-
late counsel provided ineffective assistance on direct appeal
by failing to challenge the sufficiency of the evidence at trial.
After the appellate court denied Winfield’s appeal from the
trial court’s “inadvertent” dismissal of his petition, Winfield
retained counsel, who filed an amended petition presenting
two new grounds: “(1) his trial attorney was ineffective for
failing to call two alibi witnesses and (2) his appellate counsel
was ineffective for failing to raise the issue of his trial attor-
ney’s incompetence.” Following an evidentiary hearing at
which two of Winfield’s alibi witnesses and his trial counsel
testified, the state court denied Winfield’s petition based on
alternative findings that: (1) he did not inform counsel about
his alibi witnesses or (2) his counsel’s decision to not call the
alibi witnesses was sound strategy. The appellate court af-
firmed, and the Illinois Supreme Court again denied Win-
field’s petition for leave to appeal.
    In his timely-filed, pro se petition for habeas relief to the
federal district court below, Winfield renewed his argument
that his state counsel rendered ineffective assistance by failing
to raise a sufficiency of the evidence challenge on direct ap-
peal. In answering the petition, the state not only agreed that
Winfield had presented his ineffective assistance challenge to
No. 16-3316                                                              7

the Illinois courts timely, but conceded that those courts had
not adjudicated his claim on the merits.
    Some years later, the district court appointed counsel and
permitted limited discovery on the process Winfield’s state
appellate counsel used to select issues for direct appeal. Win-
field’s appointed counsel then filed an additional brief in sup-
port of his habeas petition, arguing that appellate counsel
should have challenged the sufficiency of the evidence sup-
porting the attempted murder conviction under Illinois’ cor-
pus delicti rule.1 In so arguing, this reply brief again specifi-
cally noted the state’s agreement that the more lenient stand-
ard of review applied, something the state did not dispute in
its surreply brief.
    Proceeding on the parties’ agreement that it was to “dis-
pose of the matter as law and justice require,” Toliver v. Pollard,
688 F.3d 853, 859 (7th Cir. 2012), rather than impose AEDPA’s
heightened burden, the district court granted Winfield’s ha-
beas petition and ordered the state to reopen his appeal.
United States ex rel. Winfield v. Acevedo, 179 F. Supp. 3d 809
(N.D. Ill. 2016). Specifically, the district court held that appel-
late counsel’s performance was deficient under the standard
established in Strickland v. Washington, 466 U.S. 488 (1984), em-
phasizing counsel’s failure to challenge whether independent
evidence sufficiently corroborated Winfield’s written state-
ment. 179 F. Supp. 3d at 815-16. In response, the state moved
to alter or amend the judgment under Federal Rule of Civil



    1 As a general principle, the “corpus delicti” of a crime is “proof—
apart from the defendant’s confessions or admissions—that a crime actu-
ally occurred.” United States v. Kerley, 838 F.2d 932, 939 (7th Cir. 1988).
8                                                    No. 16-3316

Procedure 59(e) and, in the alternative, for a stay of the order
pending appeal.
    Contrary to its previous position before the district court,
the state’s 59(e) motion asserted that the Illinois courts had
considered the merits of Winfield’s ineffective assistance
claim, and thus argued for the first time that AEDPA’s more
stringent standard of review should apply. However, the dis-
trict court refused to permit the state to “disavow its earlier
position on the correct standard of review,” relying on this
Circuit’s holding in Havoco of America, Ltd. v. Sumitomo Corp.
of America, 974 F.2d 1332 (7th Cir. 1992), that Rule 59 is not the
appropriate mechanism “to raise new arguments that could
and should have been raised before judgment was entered.”
Id. at 1336.
    Accordingly, the court rejected the state’s motion for re-
consideration based on its new argument that the post-con-
viction appellate court actually “addressed the merits of [the
ineffective assistance claim] and its decision is therefore enti-
tled to AEDPA deference.” Given the “close call on the ques-
tion of ineffective assistance of appellate counsel,” the district
court nevertheless granted a stay of its order pending appeal.


                           II. Discussion
    “Under § 2254(d), a habeas court must determine what
arguments or theories supported or, … could have supported,
the state court’s decision; and then it must ask whether it is
possible fair-minded jurists could disagree that those argu-
ments or theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Harrington v. Richter, 562
No. 16-3316                                                      9

U.S. 86, 102 (2011). Given this deferential standard, the Su-
preme Court has referred to § 2254(d) as a “relitigation bar.”
Id. at 100; see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(describing § 2254(d) as a “difficult to meet” and “highly def-
erential” standard). With respect to the substance of Win-
field’s habeas petition, the Supreme Court has emphasized in
particular that a defendant seeking federal collateral relief
from a state conviction based on a defense counsel’s allegedly
deficient performance under § 2254(d) must prove that the
state court’s application of the Strickland standard was “unrea-
sonable,” not simply that counsel’s performance fell short of
Strickland. Richter, 562 U.S. at 101 (emphasis added); see also
Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect appli-
cation of federal law.”) (O’Connor, J., concurring) (emphasis
in original). Consequently, “[a] state court must be granted a
deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.” Richter,
562 U.S. at 101; see also Cullen, 563 U.S. at 190 (describing the
so-called “doubly deferential” review of counsel’s perfor-
mance under § 2254(d)). Finally, the Supreme Court instructs
that “[w]hen a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary.” Johnson v. Williams, 568 U.S. 289, 298 (2013)
(alteration in original) (citing Richter, 562 U.S. at 99-100).
    Despite this highly deferential standard of review, the dis-
trict court found that defendant Winfield met his burden of
proof, in part based on the state’s concession that the Illinois
courts had not reached the merits of defendant’s claims. The
10                                                  No. 16-3316

district court further found that the state was barred from re-
scinding this concession by post-judgment motion under Rule
59(e).
    Unfortunately, neither side advised the court below of the
general principle that waiver does not apply to arguments re-
garding the applicable standard of review. See Worth v. Tyer,
276 F.3d 249, 262 n.4 (7th Cir. 2001) (explaining in context of
Title VII challenge that “the court, not the parties, must deter-
mine the standard of review, and therefore, it cannot be
waived”). Seemingly acknowledging as much on appeal,
Winfield now makes a more nuanced argument, asserting
that the state did not merely concede (waive) any argument
as to the proper standard of review, but rather conceded (for-
feited) an underlying question of fact that determined the ap-
plicable standard. In an even more tortured version of this ar-
gument, Winfield further maintains that because the Johnson
Court refused to recognize an “irrebuttable” presumption
that the state courts adjudicated a habeas petitioner’s federal
claim on the merits, 568 U.S. at 301-02, whether the § 2254(d)
standard applies “is a factual matter, which means that the
parties can agree or not agree on that fact.”
    Frankly, the line that Winfield would have this court di-
vine between a question of fact and law in assessing the ap-
plication of AEDPA’s review standard is indiscernibly thin,
especially since the actions of the state courts essentially
speak for themselves, rather than depend upon characteriza-
tions by the state’s prosecuting arm. In support of Winfield’s
argument attempting to draw a nuanced distinction between
waiver of the appropriate standard of review, which he now
concedes is prohibited, and estoppel regarding a position on
a factual issue, which he argues only “implicat[es] … the
No. 16-3316                                                              11

standard of review,” Winfield offered a recent, supplemental
authority shortly before oral argument. However, the deci-
sion in Tilden v. Commissioner of Internal Revenue, 846 F.3d 882
(7th Cir. 2017), affords little support for Winfield’s position
here. In Tilden, the petitioner had moved for reconsideration
of a U.S. Tax Court’s dismissal of his petition as untimely, and
the IRS agreed that the petition was filed timely.2 846 F.3d at
885-86. This court was, therefore, confronted with the ques-
tion of whether the Tax Court had erred in dismissing as un-
timely a petition for review of a notice of tax deficiency, which
that court did despite the parties’ agreement otherwise.
    In holding the dismissal improper, the Tilden court ex-
plained that although “litigants cannot stipulate to jurisdic-
tion,” they can “agree on the facts that determine jurisdiction.”
Id. at 887 (emphasis in original). By way of example, the court
explained that a district court need not scrutinize the parties’
agreement regarding the facts supporting diversity jurisdic-
tion, unless it has reason to suspect collusion. Id. However, the
Tilden court determined that reversal of the Tax Court’s judg-
ment dismissing the petition was required not because that
court had ignored the assertion of the IRS regarding a fact that
would determine whether the filing was timely, but instead
because the Tax Court had reached the wrong legal conclu-
sion as to the applicable subsection of the controlling regula-
tion. Id. Accordingly, Tilden does not support upholding
waiver of the legally applicable standard of review under §
2254(d).




   2 This actually represented a retreat from the IRS’s earlier position re-
garding the appropriate regulation under which to review timeliness.
12                                                            No. 16-3316

    Winfield supplemented the record with another of this
court’s decisions, although not nearly so recent. That supple-
mental authority was provided just a day before oral argu-
ment, and is more directly on point, but still lacks sufficient
persuasive force to carry his estoppel argument on appeal. In
Watkins v. Meloy, 94 F.3d 4 (7th Cir. 1996), decided mere
months after AEDPA was enacted, this court permitted the
state to “expressly waive[] reliance” on the statute, observing
that “[t]he provisions of the new Act governing the scope of
federal judicial review do not affect the subject-matter juris-
diction of the federal courts, and are therefore waivable.” Id.
at 6 (citing Emerson v. Gramley, 91 F.3d 898, 899-900 (7th Cir.
1996)). Accordingly, Watkins did not address (nor did Emer-
son) whether a party is precluded from changing its position
regarding application of the § 2254(d) standard. Nor should
that early statement regarding waiver be deemed controlling
precedent, not just because the statute’s ink was not yet dry,
but because the Supreme Court and even the circuit courts
had not yet had occasion to interpret AEDPA in any meaning-
ful, substantive way. As importantly, both Watkins and Emer-
son were decided when it was still unclear whether AEDPA’s
deferential standard was intended to apply to habeas peti-
tions filed before its enactment.3 See Johnson v. Washington, 119


     3 At least two circuit courts, both of which later held that the appro-
priate standard of review is non-waivable, found waiver in the year after
AEDPA’s enactment. See Arnold v. Evatt, 113 F.3d 1352, 1362 n.57 (4th Cir.
1997) (“Although the new § 2254(d) may affect additional claims raised by
Arnold, the state has not asked us to consider its possible bearing on any
other claims, and we consider the issue waived.”); Miles v. Stainer, 108 F.3d
1109, 1112 n.2 (9th Cir. 1997) (“The state does not discuss whether the
‘new’ standard of review for habeas petitions contained in 28 U.S.C. §
2254(d) should apply to this case. We therefore deem the issue waived.”).
No. 16-3316                                                    13

F.3d 513, 521 n.5 (7th Cir. 1997) (“We are aware that the United
States Supreme Court has recently decided that the new pro-
visions … in 28 U.S.C. § 2254(d) … are not applied retroac-
tively to pending cases. Our analysis, therefore, is under the
old de novo standard of review.”) (citation omitted).
    Ultimately, drawing a fine line, even if discernable, be-
tween waiver of the § 2254(d) standard of review and estoppel
of an underlying fact that determines whether that standard
must applyas Winfield would have us attempt herealso
runs headlong into the principles of comity and finality, both
of which, the Supreme Court has reiterated, are central rea-
sons why state court decisions are afforded significant defer-
ence under AEDPA. As framed by Justice Kennedy, the §
2254(d) standard is designed both to vindicate “the State’s sig-
nificant interest in repose for concluded litigation,” as well as
to ensure that “state courts are the principal forum for assert-
ing constitutional challenges to state convictions.” Richter, 562
U.S. at 103 (quoting Harris v. Reed, 489 U.S. 255, 282 (1989)
(Kennedy, J., dissenting)); see also Williams v. Taylor, 529 U.S.
420, 436 (2000) (“There is no doubt Congress intended AEDPA
to advance these doctrines [of comity, finality and federal-
ism].”). Indeed, the standard “is difficult to meet, [and] that is
because it was meant to be.” Richter, 562 U.S. at 102; see also
Felker v. Turpin, 518 U.S. 651, 654 (1996) (acknowledging that
AEDPA “work[ed] substantial changes” to federal habeas
law).
   Not surprisingly, these doctrines repeatedly animate the
Supreme Court’s habeas jurisprudence. For example, the §
2254 requirement that a prisoner exhausts all available state
remedies before raising a claim in a federal habeas petition is
“founded on concerns broader than those of the parties,”
14                                                         No. 16-3316

namely, “foster[ing] respectful, harmonious relations between
the state and federal judiciaries.” Wood v. Milyard, 566 U.S.
463, 132 S. Ct. 1826, 1833 (2012) (citing Granberry v. Greer, 481
U.S. 129, 132-35 (1987)). Similarly, in Granberry, while reiterat-
ing the Court’s “reluctance to adopt rules that allow a party to
withhold raising a defense until after the ‘main event,’” 481
U.S. at 132, it nevertheless held that in “exceptional cases,”
federal circuit courts may “consider a nonexhaustion argu-
ment ‘inadverten[tly]’ overlooked by the State in the District
Court,” Milyard, 132 S. Ct. at 1833 (alteration in original).4 In
the same vein, federal courts are empowered to raise sua
sponte an unnoticed or misapplied (though not an intelli-
gently-waived) habeas statute of limitations defense, since the
“statute of limitations, like the exhaustion doctrine, ‘im-
plicat[es] values beyond the concerns of the parties.’” Id. (al-
teration in original) (quoting Day v. McDonough, 547 U.S. 198,
209 (2006)); see also Long v. Wilson, 393 F.3d 390, 404 (3d Cir.
2004) (“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.”).
    That said, there are limits to a federal court’s discretion to
consider AEDPA defenses that the state did not advance
timely. For example, in Milyard, the Supreme Court held that
the Tenth Circuit abused its discretion by affirming the denial
of a habeas petition solely on untimeliness grounds when the
state had knowingly declined to raise a timeliness challenge


     4 After Granberry was decided, Congress explicitly adopted the same
rule in AEDPA. See 22 U.S.C. § 2254(b)(3) (“A State shall not be deemed
to have waived the exhaustion requirement or be estopped from reliance
on the requirement unless the State, through counsel, expressly waives the
requirement.”).
No. 16-3316                                                                15

and, thus, “deliberately steered the District Court away from
the question and towards the merits of Wood’s petition.”5 132
S. Ct. at 1835. Moreover, in Brumfield v. Cain, 576 U.S. ___
(2015), the Court “deemed waived” the state’s argument that
the “arguably more deferential standard set out in § 2254(e)(1)
… . supplies the governing standard when a court evaluates
whether a habeas petitioner has satisfied § 2254(d)’s require-
ments,” since that argument had not been raised below, nor
in sufficiently specific terms in opposition to certiorari.6 Id. at
2282.
   Here, the state’s original agreement that a pre-AEDPA
standard of review applied in responding to Winfield’s § 2254
petition, as well as its failure to correct that concession in its
surreply does not, without more, necessarily amount to an
“intentional relinquishment or abandonment of a known


     5 In Milyard, the state twice indicated to the district court that alt-
hough it was aware that a viable timeliness defense was available, it was
not challenging the petition on those grounds. 132 S. Ct. at 1834. This is in
contrast to Day, in which the Court affirmed the dismissal of a habeas pe-
tition on statute of limitations grounds at least in part because the record
indicated that the state’s failure to raise the defense was not a strategic
maneuver, but merely the result of a mistaken calculation. 547 U.S. at 210-
11. Indeed, the Court noted explicitly in Milyard that the distinction be-
tween a defense that is “waived,” meaning “knowingly and intentionally
relinquished,” and “forfeited,” or “one that a party has merely failed to
preserve,” was “key to [its] decision in [that] case.” 132 S. Ct. at 1832 n.4.
     6 28 U.S.C. § 2254(e)(1) provides that: “In a proceeding instituted by
an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a factual issue made
by a State court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear and con-
vincing evidence.”
16                                                    No. 16-3316

right,” at least in contrast to a state’s clear, repeated waiver of
its untimeliness defense, as in Milyard. 132 S. Ct. 1835. Regard-
less, although waiver may be appropriate for some defenses
or arguments available under AEDPAsuch as the statute of
limitations or whether § 2254(e)(1)’s standard applies to a §
2254(d) analysisthe same is not true for others, including the
§ 2254(d) deferential standard of review.
    In Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003), the Second
Circuit confronted a similar habeas petitioner’s argument that
the state waived § 2254(d) review by “failing to reference the
standard” before the district court. Id. at 120-21. In rejecting
that argument, the Second Circuit explained that “AEDPA’s
standard of review … is not a procedural defense, but a stand-
ard of general applicability for all petitions filed by state pris-
oners after the statute’s effective date presenting claims that
have been adjudicated on the merits by a state court.” Id. at
121; see also Thompson v. Runnels, 705 F.3d 1089, 1099 (9th Cir.
2013) (distinguishing the Supreme Court’s holding regarding
deliberate waiver of the habeas statute of limitations defense
in Milyard as “not applicable to [the] consideration of the cor-
rect interpretation of § 2254(d)(1), which is not an affirmative
defense”). Accordingly, the Second Circuit held in Eze that
deference must be afforded if the state court adjudicated the
merits of the federal claim given § 2254(d)’s “unequivocally
mandatory language,” notwithstanding the state’s failure to
advocate for its application in the district court below. 321
F.3d at 121.
    Several other circuit courts have expressed agreement
with the notion that the standard of review under § 2254(d) is
not waivable. See Ward v. Stephens, 777 F.3d 250, 257 n.3 (5th
Cir. 2015) (“We are therefore obligated to decide whether
No. 16-3316                                                     17

Ward exhausted this claim such that § 2254’s deferential
standard applies, regardless of the parties’ position on the
matter.”); Amado v. Gonzalez, 758 F.3d 1119, 1133 n.9 (9th Cir.
2014) (“We note that neither party addressed the issue of the
proper standard by which we are to review Amado’s habeas
claim. Nevertheless, we have the obligation to apply the cor-
rect standard, for the issue is non-waivable.”); Pope v. Sec’y for
Dep’t of Corr., 680 F.3d 1271, 1282 n.3 (11th Cir. 2012) (“As the
Fourth Circuit has held, ‘Congress clearly intended the stand-
ard of review of the AEDPA to apply to habeas petitions filed
after its enactment, … and we will not hold that the appropri-
ate standard of review is waived just because the parties did
not realize what that standard was.’”) (alteration in original)
(quoting Diaz v. Moore, Nos. 97-6586, 97-6604, 1998 WL
112526, at *2 n.6 (4th Cir. Mar. 16, 1998)); Gardner v. Galetka,
568 F.3d 862, 879 (10th Cir. 2009) (“We agree with our sibling
circuits that the correct standard of review under AEDPA is
not waivable. It is, unlike exhaustion, an unavoidable legal
question we must ask, and answer, in every case.”); see also
Moritz v. Lafler, 2013 WL 1777127, 525 F. App’x 277, 285 (6th
Cir. Apr. 25, 2013) (unpublished) (“[T]his circuit has expressly
held, in the context of determining whether the AEDPA §
2254(d) standard of review applied, ‘that a party cannot
‘waive’ the proper standard of review by failing to argue it.”)
(citing Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008), ab-
rogated on other grounds by Cullen, 563 U.S. 170); Moss v. Ballard,
537 F. App’x 191, 195 n.2 (4th Cir. 2013) (rejecting the state’s
argument that the habeas petitioner waived the application of
de novo review because he failed to seek it before the district
court, since “the correct standard of review under AEDPA is
not waivable”) (citations omitted).
18                                                   No. 16-3316

    The Tenth Circuit has at least suggested that the state’s rea-
son for failing to assert AEDPA deference should be wholly
immaterial if § 2254(d) supplies the applicable standard. See
Gardner, 586 F.3d at 879 (“It is one thing to allow parties to
forfeit claims, defenses, or lines of argument; it would be quite
another to allow parties to stipulate or bind us to application
of an incorrect legal standard, contrary to the congressional
purpose.”). Of course, gamesmanship is a real possibility
when parties are permitted to raise arguments late or walk
back concessions after the district court has issued a consid-
ered ruling. See Granberry, 481 U.S. at 132-33 (remarking that
an unfortunate consequence of adopting the “middle course”
between requiring dismissal for nonexhaustion notwith-
standing the state’s failure to raise it and treating that failure
as an absolute waiver is that the state may be encouraged to
“seek a favorable ruling on the merits in the district court
while holding the exhaustion defense in reserve for use on ap-
peal if necessary”); Ward, 777 F.3d at 257 n.3 (noting the pos-
sibility that a habeas petitioner may have “strategically con-
ceded his IAC claim was unexhausted to obtain de novo re-
view and funding to investigate” in the federal courts); An-
drew L. Adler, The Non-Waivability of AEDPA Deference’s Ap-
plicability, 67 U. Miami L. Rev. 767, 777 n.54 (2013) (a state may
wish to waive § 2254(d) deference in hopes of creating favor-
able precedent with respect to an underlying constitutional
issue). However vexing this may be to lower courts, and cer-
tainly worth discouraging by such measures as sanctions
against the offending lawyer or litigant, it is not evident that
the problem of gamesmanship is a more substantial one than
the disruption of comity and finality that could result from
finding waiver or forfeiture of AEDPA’s deferential standard
of review, which, as already discussed, has plainly driven case
No. 16-3316                                                   19

law almost universally finding the standard cannot be
waived. Regardless, Winfield does not make this argument,
nor identify any reason to think that such strategic maneuver-
ing was the more likely cause of the state’s behavior here than
an inadvertent mistake.
    While Winfield attempts to distinguish some of the many
adverse decisions on this issue across the country as not in-
volving an identical, factual scenario, because the state ini-
tially agreed at the district court level here that AEDPA’s def-
erential standard did not apply, he ultimately offers no mean-
ingful response to the decisions of other circuit courts to date,
all of which have flatly held the standard cannot be waived.
Without pre-judging the outcome, therefore, we REVERSE
and REMAND to the district court for further proceedings
consistent with this decision.
