(Slip Opinion)              OCTOBER TERM, 2011                                       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

                 WOOD v. MILYARD, WARDEN, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                 THE TENTH CIRCUIT

   No. 10–9995. Argued February 27, 2012—Decided April 24, 2012
In 1987, petitioner Patrick Wood was convicted of murder and other
  crimes by a Colorado court and sentenced to life imprisonment. Wood
  filed a federal habeas petition in 2008. After receiving Wood’s peti-
  tion, the U. S. District Court asked the State if it planned to argue
  that the petition was untimely. In response, the State twice informed
  the District Court that it would “not challenge, but [was] not conced-
  ing,” the timeliness of Wood’s petition. Thereafter, the District Court
  rejected Wood’s claims on the merits. On appeal, the Tenth Circuit
  ordered the parties to brief both the merits and the timeliness of
  Wood’s petition. After briefing, the court held the petition time
  barred, concluding that the court had authority to raise timeliness on
  its own motion, and that the State had not taken the issue off the ta-
  ble by declining to raise a statute of limitations defense in the Dis-
  trict Court.
Held:
    1. Courts of appeals, like district courts, have the authority—
 though not the obligation—to raise a forfeited timeliness defense on
 their own initiative in exceptional cases. Pp. 4–9.
       (a) “Ordinarily in civil litigation, a statutory time limitation is
 forfeited if not raised in a defendant’s answer or in an amendment
 thereto.” Day v. McDonough, 547 U. S. 198, 202. An affirmative de-
 fense, once forfeited, is excluded from the case and, as a rule, cannot
 be asserted on appeal.
    In Granberry v. Greer, 481 U. S. 129, 133, this Court recognized a
 modest exception to the rule that a federal court will not consider a
 forfeited defense. There, the Seventh Circuit addressed a nonexhaus-
 tion defense the State raised for the first time on appeal. The ex-
 haustion doctrine, this Court noted, is founded on concerns broader
2                           WOOD v. MILYARD

                                  Syllabus

    than those of the parties; in particular, the doctrine fosters respect-
    ful, harmonious relations between the state and federal judiciaries.
    Id., at 133–135. With that comity interest in mind, the Court held
    that federal appellate courts have discretion to consider a nonexhaus-
    tion argument inadvertently overlooked by the State in the district
    court. Id. at 132, 134.
       In Day, the Court affirmed a federal district court’s authority to
    consider a forfeited habeas defense when extraordinary circumstances
    so warrant. 547 U. S., at 201. The State in Day, having miscalcu-
    lated a time span, erroneously informed the District Court that Day’s
    habeas petition was timely. Apprised of the error by a Magistrate
    Judge, the District Court, sua sponte, dismissed the petition as un-
    timely. This Court affirmed, holding that “district courts are permit-
    ted, but not obliged, to consider, sua sponte, the timeliness of a state
    prisoner’s habeas petition.” Id., at 209. Such leeway was appropri-
    ate, the Court again reasoned, because AEDPA’s statute of limita-
    tions, like the exhaustion doctrine, “implicat[es] values beyond the
    concerns of the parties.” Id., at 205.
       The Court clarified, however, that a federal court does not have
    carte blanche to depart from the principle of party presentation. See
    Greenlaw v. United States, 554 U. S. 237, 243–244. It would be “an
    abuse of discretion” for a court “to override a State’s deliberate waiv-
    er of a limitations defense.” Day, 547 U. S., at 202. In Day itself, the
    State’s timeliness concession resulted from “inadvertent error,” id., at
    211, not a deliberate decision to proceed to the merits. Pp. 6–9.
          (b) Consistent with Granberry and Day, the Court declines to
    adopt an absolute rule barring a court of appeals from raising, on its
    own motion, a forfeited timeliness defense. The institutional inter-
    ests served by AEDPA’s statute of limitations are also present when
    a habeas case moves to the court of appeals, a point Granberry recog-
    nized with respect to a nonexhaustion defense. P. 9.
       2. The Tenth Circuit abused its discretion when it dismissed
    Wood’s petition as untimely. In the District Court, the State was
    well aware of the statute of limitations defense available to it, and of
    the arguments that could be made in support of that defense. Yet,
    the State twice informed the District Court that it would not “chal-
    lenge” the timeliness of Wood’s petition. In so doing, the State delib-
    erately waived the statute of limitations defense. In light of that
    waiver, the Tenth Circuit should have followed the District Court’s
    lead and decided the merits of Wood’s petition. Pp. 9–11.
403 Fed. Appx. 335, reversed and remanded.

  GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined.
                    Cite as: 566 U. S. ____ (2012)                  3

                              Syllabus

THOMAS, J., filed an opinion concurring in the judgment, in which SCA-
LIA, J., joined.
                        Cite as: 566 U. S. ____ (2012)                              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. 10–9995
                                   _________________


 PATRICK WOOD, PETITIONER v. KEVIN MILYARD,

               WARDEN, ET AL. 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

            APPEALS FOR THE TENTH CIRCUIT

                                 [April 24, 2012] 


  JUSTICE GINSBURG delivered the opinion of the Court.
  This case concerns the authority of a federal court to
raise, on its own motion, a statute of limitations defense to
a habeas corpus petition. After state prisoner Patrick
Wood filed a federal habeas corpus petition, the State
twice informed the U. S. District Court that it “[would] not
challenge, but [is] not conceding, the timeliness of Wood’s
habeas petition.” App. 70a; see id., at 87a. Thereafter,
the District Court rejected Wood’s claims on the merits.
On appeal, the Tenth Circuit directed the parties to brief
the question whether Wood’s federal petition was timely.
Post-briefing, the Court of Appeals affirmed the denial of
Wood’s petition, but solely on the ground that it was
untimely.
  Our precedent establishes that a court may consider a
statute of limitations or other threshold bar the State
failed to raise in answering a habeas petition. Granberry
v. Greer, 481 U. S. 129, 134 (1987) (exhaustion defense);
Day v. McDonough, 547 U. S. 198, 202 (2006) (statute of
limitations defense). Does court discretion to take up
timeliness hold when a State is aware of a limitations
2                         WOOD v. MILYARD

                          Opinion of the Court

defense, and intelligently chooses not to rely on it in the
court of first instance? The answer Day instructs is “no”:
A court is not at liberty, we have cautioned, to bypass,
override, or excuse a State’s deliberate waiver of a limita-
tions defense. Id., at 202, 210, n. 11. The Tenth Circuit,
we accordingly hold, abused its discretion by resurrecting
the limitations issue instead of reviewing the District
Court’s disposition on the merits of Wood’s claims.
                              I
  In the course of a 1986 robbery at a pizza shop in a
Colorado town, the shop’s assistant manager was shot and
killed. Petitioner Patrick Wood was identified as the per-
petrator. At a bench trial in January 1987, Wood was
convicted of murder, robbery, and menacing, and sen-
tenced to life imprisonment. The Colorado Court of Ap-
peals affirmed Wood’s convictions and sentence on direct
appeal in May 1989, and the Colorado Supreme Court
denied Wood’s petition for certiorari five months later.
Wood did not ask this Court to review his conviction in the
90 days he had to do so.
  Wood then pursued postconviction relief, asserting con-
stitutional infirmities in his trial, conviction, and sen-
tence. Prior to the federal petition at issue here, which
was filed in 2008, Wood, proceeding pro se, twice sought
relief in state court. First, in 1995, he filed a motion to
vacate his conviction and sentence pursuant to Colorado
Rule of Criminal Procedure 35(c) (1984).1 He also asked
the Colorado trial court to appoint counsel to aid him in
pursuit of the motion. When some months passed with no
——————
    1 Colorado Rule of Criminal Procedure 35(c) (1984) provides, in rele-

vant part: “[E]very person convicted of a crime is entitled as a matter of
right to make application for postconviction review upon the groun[d]
. . . [t]hat the conviction was obtained or sentence imposed in violation
of the Constitution or laws of the United States or the constitution or
laws of this state.”
                 Cite as: 566 U. S. ____ (2012)           3

                     Opinion of the Court

responsive action, Wood filed a request for a ruling on his
motion and accompanying request for counsel. The state
court then granted Wood’s plea for the appointment of
counsel, but the record is completely blank on any further
action regarding the 1995 motion. Second, Wood filed a
new pro se motion for postconviction relief in Colorado
court in 2004. On the first page of his second motion, he
indicated that “[n]o other postconviction proceedings [had
been] filed.” Record in No. 08–cv–00247 (D Colo.), Doc.
15–5 (Exh. E), p. 1. The state court denied Wood’s motion
four days after receiving it.
   Wood filed a federal habeas petition in 2008, which the
District Court initially dismissed as untimely. App. 41a–
46a. On reconsideration, the District Court vacated the
dismissal and instructed the State to file a preanswer
response “limited to addressing the affirmative defenses of
timeliness . . . and/or exhaustion of state court remedies.”
Id., at 64a–65a. On timeliness, the State represented in
its preanswer response: “Respondents will not challenge,
but are not conceding, the timeliness of Wood’s [federal]
habeas petition.” Id., at 70a. Consistently, in its full an-
swer to Wood’s federal petition, the State repeated: “Re-
spondents are not challenging, but do not concede, the
timeliness of the petition.” Id., at 87a.
   Disposing of Wood’s petition, the District Court dis-
missed certain claims for failure to exhaust state reme-
dies, and denied on the merits Wood’s two remaining
claims—one alleging a double jeopardy violation and one
challenging the validity of Wood’s waiver of his Sixth
Amendment right to a jury trial. Id., at 96a–111a. On
appeal, the Tenth Circuit ordered the parties to brief,
along with the merits of Wood’s double jeopardy and Sixth
Amendment claims, “the timeliness of Wood’s application
for [federal habeas relief].” Id., at 129a. After briefing,
the Court of Appeals affirmed the denial of Wood’s petition
without addressing the merits; instead, the Tenth Circuit
4                        WOOD v. MILYARD

                         Opinion of the Court

held the petition time barred. 403 Fed. Appx. 335 (2010).
In so ruling, the Court of Appeals concluded it had author-
ity to raise timeliness on its own motion. Id., at 337, n. 2.
It further ruled that the State had not taken that issue off
the table by declining to interpose a statute of limitations
defense in the District Court. Ibid.
   We granted review, 564 U. S. ___ (2011), to resolve two
issues: first, whether a court of appeals has the author-
ity to address the timeliness of a habeas petition on the
court’s own initiative;2 second, assuming a court of appeals
has such authority, whether the State’s representations to
the District Court in this case nonetheless precluded the
Tenth Circuit from considering the timeliness of Wood’s
petition.
                              II

                              A

   Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 110 Stat. 1214, a state prisoner has
one year to file a federal petition for habeas corpus relief,
starting from “the date on which the judgment 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). For a prisoner whose judgment became
final before AEDPA was enacted, the one-year limitations
period runs from the AEDPA’s effective date: April 24,
1996. See Serrano v. Williams, 383 F. 3d 1181, 1183
(CA10 2004). “The one-year clock is stopped, however,
during the time the petitioner’s ‘properly filed’ application
for state postconviction relief ‘is pending.’ ” Day, 547 U. S.,
——————
  2 The Tenth Circuit’s conclusion that it had authority to raise an

AEDPA statute of limitations defense sua sponte conflicts with the view
of the Eighth Circuit. Compare 403 Fed. Appx. 335, 337, n. 2 (CA10
2010) (case below), with Sasser v. Norris, 553 F. 3d 1121, 1128 (CA8
2009) (“The discretion to consider the statute of limitations defense
sua sponte does not extend to the appellate level.”).
                    Cite as: 566 U. S. ____ (2012)                   5

                         Opinion of the Court

at 201 (quoting 28 U. S. C. §2244(d)(2)).3
   The state judgment against Wood became final on direct
review in early 1990. See supra, at 2. Wood’s time for
filing a federal petition therefore began to run on the date
of AEDPA’s enactment, April 24, 1996, and expired on
April 24, 1997, unless Wood had a “properly filed” applica-
tion for state postconviction relief “pending” in Colorado
state court during that period. Wood maintains he had
such an application pending on April 24, 1996: the Rule
35(c) motion he filed in 1995. That motion, Wood asserts,
remained pending (thus continuing to suspend the one-
year clock) until at least August 2004, when he filed his
second motion for postconviction relief in state court. The
2004 motion, the State does not contest, was “properly
filed.” Wood argues that this second motion further tolled
the limitations period until February 5, 2007, exactly one
year before he filed the federal petition at issue here. If
Wood is correct that his 1995 motion remained “pending”
in state court from April 1996 until August 2004, his
federal petition would be timely.
   In its preanswer response to Wood’s petition, the State
set forth its comprehension of the statute of limitations
issue. It noted that Wood’s “time for filing a habeas peti-
tion began to run on April 24, 1996, when the AEDPA
became effective” and that Wood “had until April 24, 1997,
plus any tolling periods, to timely file his habeas petition.”
App. 69a–70a. The State next identified the crucial ques-
tion: Did Wood’s 1995 state petition arrest the one-year
statute of limitations period from 1996 until 2004? Id., at
70a. “[I]t is certainly arguable,” the State then asserted,
“that the 1995 postconviction motion was abandoned
——————
  3 The one-year clock may also be stopped—or “tolled”—for equitable

reasons, notably when an “extraordinary circumstance” prevents a
prisoner from filing his federal petition on time. See Holland v. Flor-
ida, 560 U. S. ___ (2010). Wood does not contend that the equitable
tolling doctrine applies to his case. App. 144a, n. 5.
6                        WOOD v. MILYARD

                          Opinion of the Court

before 1997 and thus did not toll the AEDPA statute of
limitations at all.” Ibid. But rather than inviting a deci-
sion on the statute of limitations question, the State in-
formed the District Court it would “not challenge” Wood’s
petition on timeliness grounds; instead, the State simply
defended against Wood’s double jeopardy and Sixth
Amendment claims on the merits.
                                B
   “Ordinarily in civil litigation, a statutory time limitation
is forfeited if not raised in a defendant’s answer or in
an amendment thereto.” Day, 547 U. S., at 202 (citing Fed.
Rules Civ. Proc. 8(c), 12(b), and 15(a)). See also Habeas
Corpus Rule 5(b) (requiring the State to plead a statute
of limitations defense in its answer).4 An affirmative
defense, once forfeited, is “exclu[ded] from the case,” 5 C.
Wright & A. Miller, Federal Practice and Procedure §1278,
pp. 644–645 (3d ed. 2004), and, as a rule, cannot be as-
serted on appeal. See Day, 547 U. S., at 217 (SCALIA, J.,
dissenting); Weinberger v. Salfi, 422 U. S. 749, 764 (1975);
McCoy v. Massachusetts Inst. of Technology, 950 F. 2d 13,
22 (CA1 1991) (“It is hornbook law that theories not raised
squarely in the district court cannot be surfaced for the
first time on appeal.”).
   In Granberry v. Greer, we recognized a modest exception
to the rule that a federal court will not consider a forfeited
affirmative defense. 481 U. S., at 134. The District Court
in Granberry denied a federal habeas petition on the
merits. Id., at 130. On appeal, the State argued for the
first time that the petition should be dismissed because
——————
  4 We note here the distinction between defenses that are “waived” and

those that are “forfeited.” A waived claim or defense is one that a party
has knowingly and intelligently relinquished; a forfeited plea is one
that a party has merely failed to preserve. Kontrick v. Ryan, 540 U. S.
443, 458, n. 13 (2004); United States v. Olano, 507 U. S. 725, 733
(1993). That distinction is key to our decision in Wood’s case.
                     Cite as: 566 U. S. ____ (2012)                   7

                         Opinion of the Court

the petitioner had failed to exhaust relief available in
state court. Ibid. See Habeas Corpus Rule 5(b) (list-
ing “failure to exhaust state remedies” as a threshold bar
to federal habeas relief). Despite the State’s failure to
raise the nonexhaustion argument in the District Court,
the Seventh Circuit accepted the argument and ruled for
the State on that ground. We granted certiorari to decide
whether a court of appeals has discretion to address a non-
exhaustion defense that the State failed to raise in the
district court. Id., at 130.
   Although “express[ing] our reluctance to adopt rules
that allow a party to withhold raising a defense until after
the ‘main event’ . . . is over,” id., at 132, we nonetheless
concluded that the bar to court of appeals’ consideration of
a forfeited habeas defense is not absolute. Id., at 133. The
exhaustion doctrine, we noted, is founded on concerns
broader than those of the parties; in particular, the doc-
trine fosters respectful, harmonious relations between the
state and federal judiciaries. Id., at 133–135. With that
comity interest in mind, we held that federal appellate
courts have discretion, in “exceptional cases,” to consider a
nonexhaustion argument “inadverten[tly]” overlooked by
the State in the District Court. Id., at 132, 134.5
   In Day, we affirmed a federal district court’s authority
to consider a forfeited habeas defense when extraordinary
circumstances so warrant. 547 U. S., at 201. There, the
State miscalculated a time span, specifically, the number
of days running between the finality of Day’s state-court
conviction and the filing of his federal habeas petition.
Id., at 203. As a result, the State erroneously informed
the District Court that Day’s petition was timely. Ibid. A
——————
  5 Although our decision in Granberry v. Greer, 481 U. S. 129 (1987),

did not expressly distinguish between forfeited and waived defenses, we
made clear in Day v. McDonough, 547 U. S. 198 (2006), that a federal
court has the authority to resurrect only forfeited defenses. See infra,
at 8–9.
8                    WOOD v. MILYARD

                     Opinion of the Court

Magistrate Judge caught the State’s computation error
and recommended that the petition be dismissed as un-
timely, notwithstanding the State’s timeliness concession.
Id., at 204. The District Court adopted the recommenda-
tion, and the Court of Appeals upheld the trial court’s
sua sponte dismissal of the petition as untimely. Ibid.
   Concluding that it would make “scant sense” to treat
AEDPA’s statute of limitations differently from other
threshold constraints on federal habeas petitioners, we
held “that district courts are permitted, but not obliged, to
consider, sua sponte, the timeliness of a state prisoner’s
habeas petition.” Id., at 209; ibid. (noting that Habeas
Corpus Rule 5(b) places “ ‘a statute of limitations’ defense
on a par with ‘failure to exhaust state remedies, a proce-
dural bar, [and] non-retroactivity.’ ”). Affording federal
courts leeway to consider a forfeited timeliness defense
was appropriate, we again reasoned, because AEDPA’s
statute of limitations, like the exhaustion doctrine, “im-
plicat[es] values beyond the concerns of the parties.” Day,
547 U. S., at 205 (quoting Acosta v. Artuz, 221 F. 3d 117,
123 (CA2 2000)); 547 U. S., at 205–206 (“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.”
(internal quotation marks omitted)).
   We clarified, however, that a federal court does not have
carte blanche to depart from the principle of party presen-
tation basic to our adversary system. See Greenlaw v.
United States, 554 U. S. 237, 243–244 (2008). Only where
the State does not “strategically withh[o]ld the [limita-
tions] defense or cho[o]se to relinquish it,” and where the
petitioner is accorded a fair opportunity to present his
position, may a district court consider the defense on its
own initiative and “ ‘determine whether the interests of
                 Cite as: 566 U. S. ____ (2012)            9

                     Opinion of the Court

justice would be better served’ by addressing the merits or
by dismissing the petition as time barred.” Day, 547 U. S.,
at 210–211 (quoting Granberry, 481 U. S., at 136; internal
quotation marks omitted). It would be “an abuse of discre-
tion,” we observed, for a court “to override a State’s delib-
erate waiver of a limitations defense.” 547 U. S., at 202.
In Day’s case itself, we emphasized, the State’s concession
of timeliness resulted from “inadvertent error,” id., at 211,
not from any deliberate decision to proceed straightaway
to the merits.
   Consistent with Granberry and Day, we decline to adopt
an absolute rule barring a court of appeals from rais-
ing, on its own motion, a forfeited timeliness defense. The
institutional interests served by AEDPA’s statute of limi-
tations are also present when a habeas case moves to the
court of appeals, a point Granberry recognized with re-
spect to a nonexhaustion defense. We accordingly hold, in
response to the first question presented, see supra, at 4,
that courts of appeals, like district courts, have the au-
thority—though not the obligation—to raise a forfeited
timeliness defense on their own initiative.
                             C
  We turn now to the second, case-specific, inquiry. See
ibid. Although a court of appeals has discretion to ad-
dress, sua sponte, the timeliness of a habeas petition,
appellate courts should reserve that authority for use in
exceptional cases. For good reason, appellate courts ordi-
narily abstain from entertaining issues that have not been
raised and preserved in the court of first instance. See
supra, at 6. 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 antici-
pated in developing their arguments on appeal.
  Due regard for the trial court’s processes and time in-
vestment is also a consideration appellate courts should
10                   WOOD v. MILYARD

                     Opinion of the Court

not overlook. It typically takes a district court more
time to decide a habeas case on the merits, than it does to
resolve a petition on threshold procedural grounds. See
Dept. of Justice, Bureau of Justice Statistics, R. Hanson &
H. Daley, Federal Habeas Corpus Review: Challenging
State Court Criminal Convictions 23 (NCJ–155504, 1995)
(district courts spent an average of 477 days to decide a
habeas petition on the merits, and 268 days to resolve
a petition on procedural grounds). When a court of appeals
raises a procedural impediment to disposition on the mer-
its, 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 con-
siderations, we hold that the Tenth Circuit abused its
discretion when it dismissed Wood’s petition as untimely.
In the District Court, the State was well aware of the
statute of limitations defense available to it and of the
arguments that could be made in support of the defense.
See supra, at 5–6. Yet the State twice informed the Dis-
trict Court that it “will not challenge, but [is] not conced-
ing” the timeliness of Wood’s petition. See supra, at 3.
Essentially, the District Court asked the State: Will you
oppose the petition on statute of limitations grounds? The
State answered: Such a challenge would be supportable,
but we won’t make the challenge here.
   “[W]aiver is the ‘intentional relinquishment or aban-
donment of a known right.’ ” Kontrick v. Ryan, 540 U. S.
443, 458, n. 13 (2004) (quoting United States v. Olano, 507
U. S. 725, 733 (1993)). The State’s conduct in this case fits
that description. Its decision not to contest the timeliness
of Wood’s petition did not stem from an “inadvertent er-
ror,” as did the State’s concession in Day. See 547 U. S.,
at 211. Rather, the State, after expressing its clear and
accurate understanding of the timeliness issue, see supra,
at 5–6, deliberately steered the District Court away from
                 Cite as: 566 U. S. ____ (2012)          11

                     Opinion of the Court

the question and towards the merits of Wood’s petition. In
short, the State knew it had an “arguable” statute of
limitations defense, see supra, at 5, yet it chose, in no
uncertain terms, to refrain from interposing a timeliness
“challenge” to Wood’s petition. The District Court there-
fore reached and decided the merits of the petition. The
Tenth Circuit should have done so as well.
                      *    *      *
  For the reasons stated, the judgment of the Court of
Appeals for the Tenth Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
                                           It is so ordered.
                 Cite as: 566 U. S. ____ (2012)            1

               THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 10–9995
                          _________________


 PATRICK WOOD, PETITIONER v. KEVIN MILYARD,

               WARDEN, ET AL. 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

            APPEALS FOR THE TENTH CIRCUIT

                        [April 24, 2012] 


   JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
concurring in the judgment.
   In Day v. McDonough, 547 U. S. 198 (2006), the Court
held that a federal district court may raise sua sponte a
forfeited statute of limitations defense to a habeas corpus
petition. Relying on Day and Granberry v. Greer, 481
U. S. 129 (1987), the Court now holds that a court of ap-
peals may do the same. Because I continue to think that
Day was wrongly decided and that Granberry is inappo-
site, I cannot join the Court’s opinion. See Day, 547 U. S.,
at 212–219 (SCALIA, J., joined by THOMAS and BREYER,
JJ., dissenting).
   As the dissent in Day explained, the Federal Rules of
Civil Procedure apply in habeas corpus cases to the extent
that they are consistent with the Habeas Corpus Rules,
the habeas corpus statute, and the historical practice of
habeas proceedings. Id., at 212 (citing Gonzalez v. Crosby,
545 U. S. 524, 529–530 (2005), and Woodford v. Garceau,
538 U. S. 202, 208 (2003)). As relevant here, the Rules of
Civil Procedure provide that a defendant forfeits his stat-
ute of limitations defense if he fails to raise it in his an-
swer or in an amendment thereto. 547 U. S., at 212 (citing
Rules 8(c), 12(b), 15(a)). That forfeiture rule is fully con-
sistent with habeas corpus procedure. As an initial mat-
ter, the rule comports with the Habeas Rules’ instruction
2                     WOOD v. MILYARD

               THOMAS, J., concurring in judgment

that a State “must” plead any limitations defense in its
answer. Id., at 212–213 (quoting Rule 5(b) (emphasis
deleted)). Moreover, the rule does not conflict with the
habeas statute, which imposes a 1-year period of limita-
tions without any indication that typical forfeiture rules
do not apply. Id., at 213 (citing 28 U. S. C. §2244(d)(1)).
Finally, the rule does not interfere with historical practice.
Prior to the enactment of a habeas statute of limitations in
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), habeas practice included no limitations pe-
riod at all, much less one immune to forfeiture. 547 U. S.,
at 212.
   As the dissent in Day further explained, id., at 214,
AEDPA’s statute of limitations is distinguishable from the
equitable defenses that we have traditionally permitted
federal habeas courts to raise sua sponte. See, e.g., Gran-
berry, supra, at 133 (holding that appellate courts may
consider a habeas petitioner’s failure to exhaust state rem-
edies despite a State’s forfeiture of the defense). Those
judicially created defenses were rooted in concerns of com-
ity and finality that arise when federal courts collaterally
review state criminal convictions. Day, 547 U. S., at 214.
But those same concerns did not lead this Court to recog-
nize any equitable time bar against habeas petitions. Id.,
at 214–215. Thus, nothing in this Court’s pre-existing
doctrine of equitable defenses supported the Day Court’s
“decision to beef up the presumptively forfeitable ‘limita-
tions period’ of §2244(d) by making it the subject of sua
sponte dismissal.” Id., at 215–216.
   For these reasons, I believe that the Day Court was
wrong to hold that district courts may raise sua sponte
forfeited statute of limitations defenses in habeas cases. I
therefore would not extend Day’s reasoning to proceedings
in the courts of appeals. Appellate courts, moreover, are
particularly ill suited to consider issues forfeited below.
Unlike district courts, courts of appeals cannot permit a
                  Cite as: 566 U. S. ____ (2012)            3

               THOMAS, J., concurring in judgment

State to amend its answer to add a defense, nor can they
develop the facts that are often necessary to resolve ques-
tions of timeliness. Cf. id., at 209 (majority opinion) (find-
ing no difference between a district court’s ability to raise
a forfeited limitations defense sua sponte and its ability to
notice the State’s forfeiture and permit an amended plead-
ing under Rule of Civil Procedure 15).
   In light of these considerations, I cannot join the Court’s
holding that a court of appeals has discretion to consider
sua sponte a forfeited limitations defense. Nor can I join
the Court’s separate holding that the Court of Appeals
abused its discretion by raising a defense that had been
deliberately waived by the State. As the dissent in Day
noted, there is no principled reason to distinguish between
forfeited and waived limitations defenses when determin-
ing whether courts may raise such defenses sua sponte.
See 547 U. S., at 218, n. 3 (explaining that, if “ ‘values
beyond the concerns of the parties’ ” justify sua sponte
consideration of forfeited defenses, such values equally
support sua sponte consideration of waived defenses).
Therefore, I concur only in the judgment.
