                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       May 14, 2014
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                       Clerk of Court
                                    TENTH CIRCUIT



    MICHAEL TERRELL WHEELER,

                Petitioner - Appellant,

    v.                                                       No. 14-1062
                                                            (D. Colorado)
    JAMES FALK; JOHN SUTHERS, THE                  (D.C. No. 1:13-CV-02006-LTB)
    ATTORNEY GENERAL OF THE
    STATE OF COLORADO,

                Respondents - Appellees.



                                          ORDER*


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.



         In this habeas action, the district court denied relief on the ground that the

action was time-barred. The Petitioner appeals, but does not challenge the district

court’s conclusion that the petition was late. Instead, he argues that the State

waived a timeliness defense.

         The Petitioner can pursue the appeal only if a judge grants a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A). We can issue this certificate only if the


*
       This order does not constitute precedent except under the doctrines of law
of the case, res judicata, and collateral estoppel. 10th Cir. R. 32.1(A).
Petitioner’s appeal on the timeliness ruling is at least reasonably debatable.

Laurson v. Leyba, 507 F.3d 1230, passim (10th Cir. 2007). We conclude the

ruling is not reasonably debatable; thus, we decline to issue a certificate of

appealability.

      The State did not waive a limitations defense. Instead, it failed to file a

timely response. The district court pointed out the failure to timely respond and

again ordered a response. This time, the State complied with the order and argued

that the habeas action was untimely.

      The State’s lapse was not commendable, but did not constitute a waiver. A

limitations defense is waived when it is intentionally relinquished by the State.

Wood v. Milyard, __ U.S. __, 132 S. Ct. 1826, 1835 (2012). That is not what took

place here. The State was slow to respond; but when it did, it raised the

limitations defense.

      Mr. Wheeler relies on Scott v. Collins, 286 F.3d 923 (6th Cir. 2002), for the

proposition that the “[f]ailure to raise an affirmative defense in a responsive

pleading constitutes a waiver.” Appellant’s Opening Br. at 2. Scott was abrogated

in Day v. McDonough, 547 U.S. 198, 205 (2006). There the Supreme Court held

“that district courts are permitted, but not obliged, to consider, sua sponte, the

timeliness of a state prisoner’s habeas petition.” Day, 547 U.S. at 209. Under

Day, the district court could address timeliness sua sponte.




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      In these circumstances, no reasonable jurist could conclude that the State

waived a limitations defense. Cf. Stines v. Martin, 849 F.2d 1323, 1324-25 (10th

Cir. 1988) (reversing a grant of habeas relief based on the government’s three-

week delay in responding to the habeas petition). Thus, we decline to issue a

certificate of appealability. And without the certificate, we must dismiss the

appeal.

      The Petitioner has also asked for leave to proceed in forma pauperis. He

lacks the money to pay the filing fee. Thus, we grant his request for leave to

proceed in forma pauperis.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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