Day, Patrick v. McDonough, James (FL Dept. of Corrections) (04/26/2006)

Questions presented: (1) Does the state waive a limitations defense to a habeas corpus petition when it fails to plead or otherwise raise that defense and expressly concedes that the petition was timely? (2) Does habeas rule 4 permit a district court to dismiss a habeas petition on its own motion after the state has filed an answer based on a ground not raised in the answer?

BY SAMANTHA NELSON, MEDILL NEWS SERVICE

Facing 55 years in prison for second-degree murder, Patrick Day's hope for release lay in habeas corpus relief.

Day had filed a petition for a new trial based on the ineffectiveness of his lawyer and the District Court for the Northern District of Florida had accepted it for review.

But a year later the only response Day received was that the petition had been dismissed. The court had only just noticed that the petition had been filed 23 days late and therefore shouldn't have been considered at all.

Day appealed, arguing in the 11th Circuit Court of Appeals that since the state had not immediately pointed out that his petition was late, it had waived the argument. When the state responded to the petition, all its arguments had previously been based on trying to prove that Day's defense was in fact competent. The timeliness had not been disputed. Having the district court make the timeliness argument for the state created a bias against Day, according to his attorney J. Brett Busby.

"Our opinion was that if something's untimely, it's up to the state to raise that and their opportunity was before," Busby said. "Ours is an adversarial process where it's up to each side to raise the arguments that say they should win. It's not up to the courts to raise one side or the other."

Day argued that his petition should be allowed both because the state hadn't initially ruled it untimely and his lateness in filing for federal habeas relief was caused by the state public defenders, who, Day said, withheld his trial transcript for 352 days.

Nonetheless, on Nov. 29, 2004, an 11th Circuit panel unanimously affirmed, reasoning that an erroneous concession of timeliness does not remove the court's right to dismiss an untimely case.

While the decision acknowledged that timeliness would be an affirmative defense in civil cases, it stated that the Antiterrorism & Effective Death Penalty Act of 1996 and habeas corpus law make it the court's obligation to remove frivolous cases which are not in the best interest of the federal government, including those that are untimely. They went on to state that by previous precedent, a standard had been set where "the district court must consider whether the dismissal ‘serves an important federal interest.'"

"The argument that the courts have made and make in their response is that there are policies behind the habeas corpus reform statute that actually overcome the general principles that say each party is responsible to raising their own arguments," Busby said.

Under this interpretation, the court is responsible for dismissing a case even if the state fails to argue for dismissal.

On Sept. 27, 2005, a few days before the start of the U.S. Supreme Court's 2005-06 term, the Court accepted the case for review.

"We think the 11th Circuit is correct that if you have an issue out of time then it's right to dismiss it," said Assistant Deputy Attorney General Carolyn Snurkowski, who is representing James Crosby, Jr., secretary of the Florida Department of Corrections. "You shouldn't be able to gain by windfall."

Snurkowski said she finds the case interesting since it goes beyond the specific decision of whether or not Day's petition was filed in time and will likely impact future interpretations of habeas corpus laws.

"There's a lot of interpretation with how you apply them and the intent of Congress to enforce and speed up the process of habeas review," said Snurkowski. "Now they're coming to the forefront and the Court is trying to pick and choose to review those things that are percolating through the courts."

On April 25, 2006, the Court issued its opinion, holding 5-4 thtat the dismissal of the federal habeas petition as beyond the one-year statute of limitation was appropriate.

The division of the vote is worth noting. Justice Ruth Bader Ginsburg wrote the majority opinion for herself, Chief Justice John Roberts and Justices Anthony Kennedy, David Souter and Samuel Alito. Justices John Paul Stevens, Stephen Breyer, Antonin Scalia and Clarence Thomas dissented.