Statute of limitations: federal habeas petition: Wood filed a federal habeas petition in 2008; 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; “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 defense, 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 nonexhaustion defense the State raised for the first time on appeal. The exhaustion doctrine, this Court noted, is founded on concerns broader than those of the parties; in particular, the doctrine fosters respectful, 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 nonexhaustion 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 miscalculated 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 untimely. This Court affirmed, holding that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas petition.” Id., at 209. Such leeway was appropriate, the Court again reasoned, because AEDPA’s statute of limitations, like the exhaustion doctrine, “implicates 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 waiver 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.
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 interests served by AEDPA’s statute of limitations are also present when a habeas case moves to the court of appeals, a point Granberry recognized with respect to a nonexhaustion defense; 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 “challenge” the timeliness of Wood’s petition. In so doing, the State deliberately 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 (U.S.S.Ct., 24.04.12, Wood v. Milyard, J. Ginsburg).