Tuesday, April 24, 2012

Unanimity (in judgment) on the Supreme Court

As any Supreme Court reporter/pundit will tell you, the Supreme Court is hopelessly divided into 5 conservatives crushing the little guy versus 4 liberals trying to keep America safe for individuals as opposed to corporations and/or the government.  The exception to this storyline, the pundits tell us, is the rare occassion when Justice Kennedy decides to vote with the four liberals.  This storyline is often wrong.

Consider the opinion the Supreme Court issued today in Wood v. Milyward.  It is written by Justice Ginsberg, who the media considers a liberal justice.  It does not have a dissent (let alone a dissent by four justices).  Seven justices joined the opinion and Justice Thomas and Justice Scalia filed a concurrence in the judgment.  Put another way, everyone agreed with the result and three conservatives and four liberals agreed as to the reason for the judgment.

The opinion tells us that pizza restaurant’s assistant manager was killed during a robbery of the place in 1986. The following year, Patrick Wood was convicted of murder, robbery, and menacing in connection with the crime and sentenced to life in prison by a Colorado state court. The Colorado Court of Appeals affirmed the convictions and sentence in 1989 and the Colorado Supreme Court refused to hear the case five months later. Mr. Wood did not appeal the conviction to the Supreme Court. However, he did file two post-conviction petitions to try to get the state trial court to re-open his case. It appears that the first petition was never ruled on. The trial court denied the second petition.

In 2008, Mr. Wood filed a habeas corpus petition in the United States District Court for the District of Colorado. The district court asked Colorado to respond to the petition “limited to addressing the affirmative defenses of timeliness . . . and/or exhaustion of state court remedies.” It appears the district court did this because since 1996 the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations period for filing a federal habeas petition. However, the one-year period does not count the period when post-conviction petitions are being considered.

In response to the district court’s question, Colorado said that it would “not challenge, but are not conceding, the timeliness of Wood’s habeas petition.” As an aside, one might say this sort of response is the sort of lawyerly nit-picking that non-lawyers hate about lawyers. Colorado repeated this response once they fully responded to the habeas petition. Although not explicit, I think Colorado thought that the non-ruling on the first petition in state court meant that Mr. Wood’s habeas petition was timely.

Despite the fact that .Colorado was not challenging whether Mr. Wood’s petition was timely, the district court dismissed it as untimely.  Adopting a belt and suspenders approach, the district court also examined the underlying merits of Mr. Wood's petition and ruled against him on those. Mr. Wood appealed to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit ordered the parties to brief the issue of whether Mr. Woods’s habeas petition was timely. After the briefing was complete, the Tenth Circuit affirmed the dismissal on the timeliness issue without considering the merits of Mr. Wood’s petition. The Tenth Circuit’s decision was based on its conclusion that it had the authority to rule the statute of limitations defense without it being raised by Colorado. This conclusion is at odds with one reached by the Eighth Circuit in Sasser v. Norris, and the Supreme Court agreed to hear the case to resolve the conflict.

The Supreme Court noted that the time limitation on Mr. Wood’s ability to bring a habeas petition began to run in 1996 when the AEDPA was passed. So, Mr. Wood should have made his petition before April 24, 1997 (depending on whether the never-ruled-on petition counted). The Court noted from its previous cases that a district court can, on its own initiative, decide whether a habeas petition is timely. However, this initiative is limited to situations where a state has not relinquished or strategically withheld raising the statute of limitations defense. It is an abuse of discretion for a court to override a state’s deliberate waiver of a statute of limitations defense. The Supreme Court decided that what is good for the district court is also good for appellate courts. Thus, an appellate court may rule on a timeliness defense even if it isn’t raised by the state.

But should the Tenth Circuit have ruled on the timeliness defense in Mr. Wood’s case? The answer to that question is no. The Supreme Court said that Colorado was “well aware” of the statute of limitations defense. After all, the district court had specifically asked Colorado about it. Colorado twice informed the district court that it would not challenge the habeas petition on privacy grounds. Thus, Colorado acted knowingly when it decided not to raise the issue. Simply put, Colorado waived its ability to raise the defense.

So does that mean Mr. Wood gets to go free? I doubt it. Instead the Tenth Circuit has to consider his appeal on the merits of his arguments. Those arguments failed at the district court level. Any litigator will tell you that the easiest way to lose an appeal is to be the one making the appeal. I predict that Mr. Wood will now lose his appeal on the merits rather than on the timeliness issue. You can make an argument that the Supreme Court ruled for the individual against the state in this case. However, I do not believe you can make an argument that this result will actually change anything for Mr. Wood.

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