DAY v. McDONOUGH, INTERIM SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS

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198 OCTOBER TERM, 2005
Syllabus
DAY v. McDONOUGH, INTERIM SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS
certiorari to the united states court of appeals for
the eleventh circuit
No. 04–1324. Argued February 27, 2006—Decided April 25, 2006
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sets
a one-year limitation period for filing a state prisoner’s federal habeas
corpus petition, running 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), but stops the one-year
clock while the petitioner’s “properly filed” application for state postcon
viction relief “is pending,” § 2244(d)(2). Under Eleventh Circuit prece
dent, which is not challenged here, that tolling period does not include
the 90 days in which a petitioner might have sought certiorari review
in this Court challenging state-court denial of postconviction relief.
Petitioner Day’s Florida trial-court sentence was affirmed on Decem
ber 21, 1999, and his time to seek this Court’s review of the final state
court decision expired on March 20, 2000. Day unsuccessfully sought
state postconviction relief 353 days later. The trial court’s judgment
was affirmed on appeal, effective December 3, 2002. Day petitioned for
federal habeas relief 36 days later, on January 8, 2003. Florida’s answer
asserted that the petition was “timely” because it was filed after 352
days of untolled time. Inspecting the answer and attachments, how
ever, a Federal Magistrate Judge determined that the State had miscal
culated the tolling time: Under the controlling Eleventh Circuit prece
dent, the untolled time was actually 388 days, rendering the petition
untimely. After affording Day an opportunity to show cause why the
petition should not be dismissed for failure to meet AEDPA’s one-year
deadline, the Magistrate Judge found petitioner’s responses inadequate
and recommended dismissal. The District Court adopted the recom
mendation, and the Eleventh Circuit affirmed, concluding that a State’s
patently erroneous concession of timeliness does not compromise a
district court’s authority sua sponte to dismiss a habeas petition as
untimely.
Held: In the circumstances here presented, the District Court had discre
tion to correct the State’s erroneous computation and, accordingly, to
dismiss the habeas petition as untimely under AEDPA’s one-year limita
tion. Pp. 202–211.

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Syllabus
(a) A statute of limitations defense is not jurisdictional, therefore
courts are under no obligation to raise the matter sua sponte.
Cf. Kontrick v. Ryan, 540 U. S. 443, 458. As a general matter, a defend
ant forfeits a statute of limitations defense not asserted in its answer
or in an amendment thereto. See Fed. Rules Civ. Proc. 8(c), 12(b), and
15(a) (made applicable to federal habeas proceedings by Rule 11 of the
Rules governing such proceedings). And the Court would count it an
abuse of discretion to override a State’s deliberate waiver of the limita
tions defense. But, in appropriate circumstances, a district court may
raise a time bar on its own initiative. The District Court in this case
confronted no intelligent waiver on the State’s part, only an evident
miscalculation of time. In this situation the Court declines to adopt
either an inflexible rule requiring dismissal whenever AEDPA’s one
year clock has run, or, at the opposite extreme, a rule treating the
State’s failure initially to plead the one-year bar as an absolute waiver.
Rather, the Court holds that a district court has discretion to decide
whether the administration of justice is better served by dismissing the
case on statute of limitations grounds or by reaching the merits of the
petition. This resolution aligns the statute of limitations with other
affirmative defenses to habeas petitions, notably exhaustion of state
remedies, procedural default, and nonretroactivity. In Granberry v.
Greer, 481 U. S. 129, 133, this Court held that federal appellate courts
have discretion to consider a state prisoner’s failure to exhaust available
state remedies before invoking federal habeas jurisdiction despite the
State’s failure to interpose the exhaustion defense at the district-court
level. Similarly, in Caspari v. Bohlen, 510 U. S. 383, 389, the Court held
that “a federal court may, but need not, decline to apply [the nonretroac
tivity rule announced in Teague v. Lane, 489 U. S. 288, 310,] if the State
does not argue it.” It would make scant sense to distinguish AEDPA’s
time bar from these other threshold constraints on federal habeas peti
tioners. While a district court is not required to doublecheck the
State’s math, cf. Pliler v. Ford, 542 U. S. 225, 231, no Rule, statute, or
constitutional provision commands a judge who detects a clear computa
tion error to suppress that knowledge. Cf. Fed. Rule Civ. Proc. 60(a).
The Court notes particularly that the Magistrate Judge, instead of act
ing sua sponte, might have informed the State of its obvious computa
tion error and entertained an amendment to the State’s answer. See,
e. g., Rule 15(a). There is no dispositive difference between that route,
and the one taken here. Pp. 202–210.
(b) Before acting sua sponte, a court must accord the parties fair
notice and an opportunity to present their positions. It must also as
sure itself that the petitioner is not significantly prejudiced by the de

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200 DAY v. McDONOUGH
Syllabus
layed focus on the limitation issue, and “determine whether the interests
of justice would be better served” by addressing the merits or by dis
missing the petition as time barred. See Granberry, 481 U. S., at 136.
Here, the Magistrate Judge gave Day due notice and a fair opportunity
to show why the limitation period should not yield dismissal. The no
tice issued some nine months after the State’s answer. No court pro
ceedings or action occurred in the interim, and nothing suggests that
the State “strategically” withheld the defense or chose to relinquish it.
From all that appears in the record, there was merely an inadvertent
error, a miscalculation that was plain under Circuit precedent, and no
abuse of discretion in following Granberry and Caspari. Pp. 210–211.
391 F. 3d 1192, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., filed
an opinion dissenting from the judgment, in which Breyer, J., joined,
post, p. 211. Scalia, J., filed a dissenting opinion, in which Thomas and
Breyer, JJ., joined, post, p. 212.
J. Brett Busby argued the cause for petitioner. With him
on the briefs were Jeremy Gaston and Andrew H. Schapiro.
Christopher M. Kise, Solicitor General of Florida, argued
the cause for respondent. With him on the brief were
Charles J. Crist, Jr., Attorney General, Erik M. Figlio and
Lynn C. Hearn, Deputy Solicitors General, and Cassandra
K. Dolgin, Assistant Attorney General.
Douglas Hallward-Driemeier argued the cause for the
United States as amicus curiae urging affirmance. With
him on the brief were Solicitor General Clement, Assist
ant Attorney General Fisher, Deputy Solicitor General
Dreeben, and Kathleen A. Felton.*
*Briefs of amici curiae urging reversal were filed for the National Asso
ciation of Criminal Defense Lawyers by Stephen B. Kinnaird and Pamela
Harris; for Janet Cooper Alexander et al. by Jeffrey A. Lamken; and for
John Blume et al. by Elaine Metlin and Ann-Marie Luciano.
A brief of amici curiae urging affirmance was filed for the State of
Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee,
First Assistant Attorney General, R. Ted Cruz, Solicitor General, Don
Clemmer, Deputy Attorney General, Gena Bunn and Ellen Stewart-
Klein, Assistant Attorneys General, and Dan Schweitzer, and by the At

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Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
This case concerns the authority of a U. S. District Court,
on its own initiative, to dismiss as untimely a state prisoner’s
petition for a writ of habeas corpus. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.
1214, sets a one-year limitation period for filing such pe
titions, running from “the date on which the judgment be
came final by the conclusion of direct review or the expir
ation of the time for seeking such review.” 28 U. S. C.
§ 2244(d)(1)(A). The one-year clock is stopped, however,
during the time the petitioner’s “properly filed” application
for state postconviction relief “is pending.” § 2244(d)(2).
Under Eleventh Circuit precedent, that tolling period does
not include the 90 days in which a petitioner might have
sought certiorari review in this Court challenging state
court denial of postconviction relief. Coates v. Byrd, 211
F. 3d 1225, 1227 (2000).
In the case before us, the State’s answer to the federal
habeas petition “agree[d] the petition [was] timely” because
it was “filed after 352 days of untolled time.” App. 24. In
specting the pleadings and attachments, a Federal Magis
trate Judge determined that the State had miscalculated the
tolling time. Under Circuit precedent, the untolled time
torneys General for their respective States as follows: Troy King of Ala
bama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer
of California, John W. Suthers of Colorado, Carl C. Danberg of Delaware,
Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G.
Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Phill
Kline of Kansas, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of
Massachusetts, Jim Hood of Mississippi, Mike McGrath of Montana, Jon
Bruning of Nebraska, George J. Chanos of Nevada, Kelly A. Ayotte of
New Hampshire, Wayne Stenehjem of North Dakota, Jim Petro of Ohio,
W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas
W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina,
Larry Long of South Dakota, Mark L. Shurtleff of Utah, William H.
Sorrell of Vermont, Rob McKenna of Washington, and Darrell V. Mc-
Graw, Jr., of West Virginia.

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202 DAY v. McDONOUGH
Opinion of the Court
was 388 days, rendering the petition untimely by some three
weeks. After affording the petitioner an opportunity to
show cause why the petition should not be dismissed for fail
ure to meet the statutory deadline, and finding petitioner’s
responses inadequate, the Magistrate Judge recommended
dismissal of the petition. The District Court adopted the
Magistrate Judge’s recommendation, and the Court of Ap
peals affirmed, concluding that “[a] concession of timeliness
by the state that is patently erroneous does not compromise
the authority of a district court sua sponte to dismiss a ha
beas petition as untimely, under AEDPA.” Day v. Crosby,
391 F. 3d 1192, 1195 (CA11 2004) (per curiam).
The question presented is whether a federal court lacks
authority, on its own initiative, to dismiss a habeas petition
as untimely, once the State has answered the petition with
out contesting its timeliness. Ordinarily in civil litigation, a
statutory time limitation is forfeited if not raised in a defend
ant’s answer or in an amendment thereto. Fed. Rules Civ.
Proc. 8(c), 12(b), and 15(a). And we would count it an abuse
of discretion to override a State’s deliberate waiver of a limi
tations defense. In this case, however, the federal court
confronted no intelligent waiver on the State’s part, only an
evident miscalculation of the elapsed time under a statute
designed to impose a tight time constraint on federal habeas
petitioners.1 In the circumstances here presented, we hold,
the federal court had discretion to correct the State’s error
and, accordingly, to dismiss the petition as untimely under
AEDPA’s one-year limitation.
1 Until AEDPA took effect in 1996, no statute of limitations applied to
habeas petitions. See Mayle v. Felix, 545 U. S. 644, 654 (2005). Courts
invoked the doctrine of “prejudicial delay” to screen out unreasonably late
filings. See generally 2 R. Hertz & J. Liebman, Federal Habeas Corpus
Practice and Procedure § 24 (4th ed. 2001). In AEDPA, Congress pre
scribed a uniform rule: “A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court.” 28 U. S. C. § 2244(d)(1).

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Opinion of the Court
I
Petitioner Patrick A. Day was convicted of second-degree
murder and sentenced to 55 years in prison by a Florida trial
court. Day unsuccessfully appealed the sentence, which
was affirmed on December 21, 1999. Day did not seek this
Court’s review of the final state-court decision; his time to
do so expired on March 20, 2000.
Three hundred and fifty-three (353) days later, Day unsuc
cessfully sought state postconviction relief. The Florida
trial court’s judgment denying relief was affirmed on appeal,
and the appellate court issued its mandate on December 3,
2002. See Nyland v. Moore, 216 F. 3d 1264, 1267 (CA11
2000) (under Florida law, appellate order “is pending” until
the mandate issues). Thirty-six (36) days thereafter, on
January 8, 2003, Day petitioned for federal habeas relief as
serting several claims of ineffective assistance of trial coun
sel. A Magistrate Judge, finding the petition “in proper
form,” App. 21, ordered the State to file an answer, id., at
21–22. In its responsive pleading, the State failed to raise
AEDPA’s one-year limitation as a defense. See supra, at
201. Overlooking controlling Eleventh Circuit precedent,
see Coates, 211 F. 3d, at 1227, the State calculated that the
petition had been “filed after 352 days of untolled time,” and
was therefore “timely.” App. 24. The State’s answer and
attachments, however, revealed that, had the State followed
the Eleventh Circuit’s instruction on computation of elapsed
time, the timeliness concession would not have been made:
Under the Circuit’s precedent, more than one year, specifi
cally, 388 days of untolled time, had passed between the fi
nality of Day’s state-court conviction and the filing of his
federal habeas petition.2
2 Day urges this Court to find his petition timely. He asserts that the
Eleventh Circuit misinterpreted § 2244(d)(2) in holding that AEDPA’s time
limitation was not tolled during the 90-day period he could have petitioned
this Court to review the denial of his motion for state postconviction relief.
See Brief for Petitioner 45–50. This question was not “set out in the

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204 DAY v. McDONOUGH
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A newly assigned Magistrate Judge noticed the State’s
computation error and ordered Day to show cause why his
federal habeas petition should not be dismissed as untimely.
Id., at 26–30. Determining that Day’s responses did not
overcome the time bar, the Magistrate Judge recommended
dismissal of the petition, App. to Pet. for Cert. 8a–15a, and
the District Court adopted that recommendation, id., at 7a.
The Eleventh Circuit granted Day a certificate of appeal
ability on the question “[w]hether the district court erred
in addressing the timeliness of [Day’s] habeas corpus pe
tition . . . after the [State] had conceded that [the] petition
was timely.” App. 37. In a decision rendered two years
earlier, Jackson v. Secretary for Dept. of Corrections, 292
F. 3d 1347 (2002), the Eleventh Circuit had ruled that, “even
though the statute of limitations is an affirmative defense,
the district court may review sua sponte the timeliness of [a
federal habeas] petition.” Id., at 1349. Adhering to Jack
son, and satisfied that the State’s concession of timeliness
“was patently erroneous,” the Eleventh Circuit affirmed the
dismissal of Day’s petition. 391 F. 3d, at 1192–1195.3
petition [for certiorari], or fairly included therein,” and we therefore do
not consider it here. This Court’s Rule 14.1(a). We note, however, that
the Court recently granted certiorari in Lawrence v. Florida, No. 05–8820,
post, p. 1039 (cert. granted, Mar. 27, 2006), which presents the question
whether AEDPA’s time limitation is tolled during the pendency of a peti
tion for certiorari from a judgment denying state postconviction relief.
The instant opinion, we emphasize, addresses only the authority of the
District Court to raise AEDPA’s time bar, not the correctness of its deci
sion that the limitation period had run.
3 Day reads the Eleventh Circuit’s opinion in this case as rendering man
datory a district court’s sua sponte application of AEDPA’s one-year limi
tation, even when the respondent elects to waive the limitation and oppose
the petition solely on the merits. See Tr. of Oral Arg. 6–8. He points to
a sentence in the Eleventh Circuit’s brief per curiam opinion stating:
“A federal court that sits in collateral review of a criminal judgment of a
state court has an obligation to enforce the federal statute of limitations.”
391 F. 3d, at 1194. We read the Eleventh Circuit’s summary disposition
in line with that court’s description of its controlling precedent: “We . . .

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Opinion of the Court
We granted certiorari sub nom. Day v. Crosby, 545 U. S.
1164 (2005), in view of the division among the Circuits on the
question whether a district court may dismiss a federal ha
beas petition as untimely under AEDPA, despite the State’s
failure to raise the one-year limitation in its answer to the
petition or its erroneous concession of the timeliness issue.
Compare, e. g., Long v. Wilson, 393 F. 3d 390, 401–404 (CA3
2004), and 391 F. 3d, at 1194–1195 (case below), with Scott v.
Collins, 286 F. 3d 923, 930–931 (CA6 2002), and Nardi v.
Stewart, 354 F. 3d 1134, 1141–1142 (CA9 2004).
II
A statute of limitations defense, the State acknowledges,
is not “jurisdictional,” hence courts are under no obligation
to raise the time bar sua sponte. See, e. g., Acosta v. Artuz,
221 F. 3d 117, 122 (CA2 2000); Hill v. Braxton, 277 F. 3d 701,
705 (CA4 2002); Davis v. Johnson, 158 F. 3d 806, 810 (CA5
1998); cf. Kontrick v. Ryan, 540 U. S. 443, 458 (2004) (defend
ant forfeited untimeliness argument “by failing to raise the
issue until after [the] complaint was adjudicated on the mer
its”). In this respect, the limitations defense resembles
other threshold barriers—exhaustion of state remedies, pro
cedural default, nonretroactivity—courts have typed “nonju
risdictional,” although recognizing that those defenses “im
plicat[e] values beyond the concerns of the parties.” Acosta,
221 F. 3d, at 123 (“The AEDPA statute of limitation pro
motes judicial efficiency and conservation of judicial re
sources, safeguards the accuracy of state court judgments
by requiring resolution of constitutional questions while the
ruled that, ‘even though the statute of limitations is an affirmative defense,
the district court may review sua sponte the timeliness of [a federal ha
beas] petition.’ ” Ibid. (referring to Jackson v. Secretary for Dept. of Cor
rections, 292 F. 3d, at 1349; emphasis added); see also 391 F. 3d, at 1195
(State’s “patently erroneous” concession of timeliness “does not compro
mise the authority of a district court sua sponte to dismiss a habeas peti
tion as untimely” under AEDPA’s one-year limitation (emphasis added)).

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206 DAY v. McDONOUGH
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record is fresh, and lends finality to state court judgments
within a reasonable time.”).
On the exhaustion of state remedies doctrine, requiring
state prisoners, before invoking federal habeas jurisdiction,
to pursue remedies available in state court, Granberry v.
Greer, 481 U. S. 129 (1987), is the pathmarking case. We
held in Granberry that federal appellate courts have discre
tion to consider the issue of exhaustion despite the State’s
failure to interpose the defense at the district-court level.
Id., at 133.4 Later, in Caspari v. Bohlen, 510 U. S. 383, 389
(1994), we similarly held that “a federal court may, but need
not, decline to apply [the nonretroactivity rule announced in
Teague v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion),]
if the State does not argue it.” See also Schiro v. Farley,
510 U. S. 222, 229 (1994) (declining to address nonretroactiv
ity defense that State raised only in Supreme Court merits
brief, “[a]lthough we undoubtedly have the discretion to
reach” the argument).
While the issue remains open in this Court, see Trest v.
Cain, 522 U. S. 87, 90 (1997),5 the Courts of Appeals have
unanimously held that, in appropriate circumstances, courts,
on their own initiative, may raise a petitioner’s procedural
default, i. e., a petitioner’s failure properly to present an al
leged constitutional error in state court, and the consequent
adequacy and independence of state-law grounds for the
state-court judgment. See Brewer v. Marshall, 119 F. 3d
993, 999 (CA1 1997); Rosario v. United States, 164 F. 3d 729,
732 (CA2 1998); Sweger v. Chesney, 294 F. 3d 506, 520 (CA3
4 In AEDPA, enacted nearly a decade after Granberry, Congress ex
pressly provided that “[a] State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the require
ment unless the State, through counsel, expressly waives the require
ment.” 28 U. S. C. § 2254(b)(3).
5 Trest held that a Court of Appeals was not obliged to raise procedural
default on its own initiative, but declined to decide whether courts have
discretion to do so. 522 U. S., at 89.

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Opinion of the Court
2002); Yeatts v. Angelone, 166 F. 3d 255, 261 (CA4 1999);
Magouirk v. Phillips, 144 F. 3d 348, 358 (CA5 1998); Sowell
v. Bradshaw, 372 F. 3d 821, 830 (CA6 2004); Kurzawa v.
Jordan, 146 F. 3d 435, 440 (CA7 1998); King v. Kemna, 266
F. 3d 816, 822 (CA8 2001) (en banc); Vang v. Nevada, 329 F.
3d 1069, 1073 (CA9 2003); United States v. Wiseman, 297
F. 3d 975, 979 (CA10 2002); Moon v. Head, 285 F. 3d 1301,
1315, n. 17 (CA11 2002).
Petitioner Day relies heavily on Rule 4 of the Rules Gov
erning Section 2254 Cases in the United States District
Courts (Habeas Rules), i. e., the procedural Rules governing
federal habeas petitions from state prisoners, in urging that
AEDPA’s limitation may be raised by a federal court
sua sponte only at the preanswer, initial screening stage.
Habeas Rule 4 provides that district courts “must promptly
examine” state prisoner habeas petitions and must dismiss
the petition “[i]f it plainly appears . . . that the petitioner is
not entitled to relief.” Once an answer has been ordered
and filed, Day maintains, the court loses authority to rule
the petition untimely sua sponte.6 At that point, according
to Day, the Federal Rules of Civil Procedure hold sway. See
Habeas Rule 11 (“The Federal Rules of Civil Procedure, to
the extent that they are not inconsistent with any statutory
provisions or these rules, may be applied to a proceeding
under these rules.”).7 Under the Civil Procedure Rules, a
defendant forfeits a statute of limitations defense, see Fed.
6 Were we to accept Day’s position, courts would never (or, at least,
hardly ever) be positioned to raise AEDPA’s time bar sua sponte. As
this Court recognized in Pliler v. Ford, 542 U. S. 225, 232 (2004), informa
tion essential to the time calculation is often absent—as it was in this
case—until the State has filed, along with its answer, copies of documents
from the state-court proceedings.
7 The Habeas Rules were amended after the proceedings below. We
cite the current version because both parties agree that the amendments
to Rules 4 and 11, effective December 1, 2004, wrought no relevant sub
stantive change.

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208 DAY v. McDONOUGH
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Rule Civ. Proc. 8(c), not asserted in its answer, see Rule
12(b), or an amendment thereto, see Rule 15(a).
The State, on the other hand, points out that the statute
of limitations is akin to other affirmative defenses to habeas
petitions, notably, exhaustion of state remedies, procedural
default, and nonretroactivity. Indeed, the statute of limita
tions is explicitly aligned with those other defenses under
the current version of Habeas Rule 5(b), which provides that
the State’s answer to a habeas petition “must state whether
any claim in the petition is barred by a failure to exhaust
state remedies, a procedural bar, non-retroactivity, or a stat
ute of limitations.” The considerations of comity, finality,
and the expeditious handling of habeas proceedings that mo
tivated AEDPA,8 the State maintains, counsel against an ex
cessively rigid or formal approach to the affirmative defenses
now listed in Habeas Rule 5. Citing Granberry, 481 U. S.,
at 131–134, as the instructive case, the State urges express
recognition of an “intermediate approach.” Brief for Re
spondent 14 (internal quotation marks omitted); see also id.,
at 25. In lieu of an inflexible rule requiring dismissal when
ever AEDPA’s one-year clock has run, or, at the opposite
extreme, a rule treating the State’s failure initially to plead
the one-year bar as an absolute waiver, the State reads the
statutes, Rules, and decisions in point to permit the “exercise
[of] discretion in each case to decide whether the administra
tion of justice is better served by dismissing the case on stat
ute of limitations grounds or by reaching the merits of the
petition.” Id., at 14. Employing that “intermediate ap
proach” in this particular case, the State argues, the petition
should not be deemed timely simply because a government
attorney calculated the days in between petitions incorrectly.
8 See Rhines v. Weber, 544 U. S. 269, 276 (2005) (AEDPA’s time bar
“quite plainly serves the well-recognized interest in the finality of state
court judgments”; it “reduces the potential for delay on the road to final
ity.” (quoting Duncan v. Walker, 533 U. S. 167, 179 (2001))).

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Opinion of the Court
We agree, noting particularly that the Magistrate Judge,
instead of acting sua sponte, might have informed the State
of its obvious computation error and entertained an amend
ment to the State’s answer. See Fed. Rule Civ. Proc. 15(a)
(leave to amend “shall be freely given when justice so re
quires”); see also 28 U. S. C. § 2243 (State’s response to ha
beas petition may be amended by leave of court); cf. Long,
393 F. 3d, at 402–404 (District Court raised the statute of
limitations sua sponte, the State agreed with that disposi
tion, and the Court of Appeals treated that agreement as a
constructive amendment to the State’s answer). Recogniz
ing that an amendment to the State’s answer might have
obviated this controversy,9 we see no dispositive difference
between that route, and the one taken here. See Brief for
Respondent 24 (“Here, the State did not respond to the show
cause order because its concession of timeliness was based
on an erroneous calculation and it agreed the petition should
be dismissed as untimely.”); cf. Slack v. McDaniel, 529 U. S.
473, 487 (2000) (admonishing against interpretation of proce
dural prescriptions in federal habeas cases to “trap the un
wary pro se prisoner” (quoting Rose v. Lundy, 455 U. S. 509,
520 (1982))).
In sum, we hold that district courts are permitted, but
not obliged, to consider, sua sponte, the timeliness of a state
prisoner’s habeas petition. We so hold, noting that it would
make scant sense to distinguish in this regard AEDPA’s time
bar from other threshold constraints on federal habeas peti
tioners. See supra, at 206–207; Habeas Rule 5(b) (placing
“a statute of limitations” defense on a par with “failure to
exhaust state remedies, a procedural bar, [and] non
retroactivity”); Long, 393 F. 3d, at 404 (“AEDPA’s statute of
limitations advances the same concerns as those advanced
by the doctrines of exhaustion and procedural default, and
must be treated the same.”). We stress that a district court
9 The Court is unanimous on this point. See post, at 216, n. 2 (Scalia,
J., dissenting).

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210 DAY v. McDONOUGH
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is not required to doublecheck the State’s math. If, as this
Court has held, “[d]istrict judges have no obligation to act
as counsel or paralegal to pro se litigants,” Pliler v. Ford,
542 U. S. 225, 231 (2004),10 then, by the same token, they
surely have no obligation to assist attorneys representing
the State. Nevertheless, if a judge does detect a clear com
putation error, no Rule, statute, or constitutional provision
commands the judge to suppress that knowledge. Cf. Fed.
Rule Civ. Proc. 60(a) (clerical errors in the record “arising
from oversight or omission may be corrected by the court at
any time of its own initiative or on the motion of any party”).
Of course, before acting on its own initiative, a court must
accord the parties fair notice and an opportunity to present
their positions. See, e. g., Acosta, 221 F. 3d, at 124–125;
McMillan v. Jarvis, 332 F. 3d 244, 250 (CA4 2003). Further,
the court must assure itself that the petitioner is not signifi
cantly prejudiced by the delayed focus on the limitation
issue, and “determine whether the interests of justice would
be better served” by addressing the merits or by dismissing
the petition as time barred. See Granberry, 481 U. S., at
136.11 Here, the Magistrate Judge gave Day due notice and
a fair opportunity to show why the limitation period should
not yield dismissal of the petition. The notice issued some
10 The procedural hindrance in Pliler was the petitioner’s failure to ex
haust state remedies. The Court in that case declined to rule on the
propriety of the stay-and-abeyance procedure that would enable a habeas
petitioner to remain in federal court while exhausting unexhausted claims
in state court. 542 U. S., at 231. In a later decision, Rhines, 544 U. S.,
at 278–279, this Court held that a district court has discretion to stay a
mixed petition (i. e., one that includes both exhausted and unexhausted
claims) to allow a habeas petitioner to present his unexhausted claims to
the state court in the first instance, then return to federal court for review
of his perfected petition.
11 A district court’s discretion is confined within these limits. As earlier
noted, should a State intelligently choose to waive a statute of limitations
defense, a district court would not be at liberty to disregard that choice.
See supra, at 202. But see post, at 217–218 (Scalia, J., dissenting).

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Stevens, J., dissenting from judgment
nine months after the State answered the petition. No
court proceedings or action occurred in the interim, and
nothing in the record suggests that the State “strategically”
withheld the defense or chose to relinquish it. From all that
appears in the record, there was merely an inadvertent
error, a miscalculation that was plain under Circuit prece
dent, and no abuse of discretion in following this Court’s lead
in Granberry and Caspari, described supra, at 206–207.
* * *
For the reasons stated, the judgment of the Court of Ap
peals is
Affirmed.
Justice Stevens, with whom Justice Breyer joins, dis
senting from the judgment.
Although Justice Breyer and I disagree on the proper
answer to the question on which we granted certiorari—in
my view, Justice Ginsburg’s opinion for the Court cor
rectly decides that question, while Justice Breyer has
joined Justice Scalia’s dissenting opinion—we agree on the
proper disposition of this case. In our view, the Court
should announce its opinion now, but it should postpone the
entry of judgment pending our decision in Lawrence v. Flor
ida, No. 05–8820, cert. granted, post, p. 1039. As Justice
Ginsburg notes, the question whether the Court of Appeals
correctly concluded that Day’s habeas corpus petition was
barred by the statute of limitations will be answered by our
decision in Lawrence. See ante, at 203–204, n. 2. It seems
improvident to affirm a possibly erroneous Court of Appeals
judgment that dismissed Day’s habeas petition without an
evaluation of its merits when we have already granted cer
tiorari to address the issue on which the Court of Appeals
may have erred. Of course, the Court of Appeals may avoid
a miscarriage of justice by keeping this case on its docket
until after we decide Lawrence, but it would be better prac

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212 DAY v. McDONOUGH
Scalia, J., dissenting
tice for us to do so ourselves. Accordingly, we respectfully
dissent from the entry of the Court’s judgment at this time.
Justice Scalia, with whom Justice Thomas and Jus
tice Breyer join, dissenting.
The Court today disregards the Federal Rules of Civil
Procedure (Civil Rules) in habeas corpus cases, chiefly be
cause it believes that this departure will make no difference.
See ante, at 209. Even if that were true, which it is not,
I could not join this novel presumption against applying the
Civil Rules.
The Civil Rules “govern the procedure in the United
States district courts in all suits of a civil nature.” Rule
1. This includes “proceedings for . . . habeas corpus,” Rule
81(a)(2), but only “to the extent that the practice in such
proceedings is not set forth in statutes of the United States
[or] the Rules Governing Section 2254 Cases” (Habeas
Rules), Civil Rule 81(a)(2); see also Habeas Rule 11. Thus,
“[t]he Federal Rules of Civil Procedure apply in the context
of habeas suits to the extent that they are not inconsistent
with the Habeas Corpus Rules,” Woodford v. Garceau, 538
U. S. 202, 208 (2003), and do not contradict or undermine the
provisions of the habeas corpus statute, Gonzalez v. Crosby,
545 U. S. 524, 529–530 (2005).
As the Court notes, the Civil Rules adopt the traditional
forfeiture rule for unpleaded limitations defenses. See ante,
at 207–208 (citing Rules 8(c), 12(b), 15(a)). The Court does
not identify any “inconsisten[cy]” between this forfeiture
rule and the statute, Rules, or historical practice of habeas
proceedings—because there is none. Forfeiture of the limi
tations defense is demonstrably not inconsistent with tradi
tional habeas practice, because, as the Court acknowledges,
habeas practice included no statute of limitations until 1996.
Ante, at 202, n. 1; see also infra, at 214–216. Forfeiture is
perfectly consistent with Habeas Rule 5(b), which now pro
vides that the State’s “answer . . . must state whether any

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213 Cite as: 547 U. S. 198 (2006)
Scalia, J., dissenting
claim in the petition is barred by . . . statute of limitations.”
(Emphasis added.) And forfeiture is also consistent with
(and indeed, arguably suggested by) Habeas Rule 4, because
Rule 4 provides for sua sponte screening and dismissal of
habeas petitions only prior to the filing of the State’s respon
sive pleading.1
Most importantly, applying the forfeiture rule to the limi
tations period of 28 U. S. C. § 2244(d) does not contradict or
undermine any provision of the habeas statute. Quite the
contrary, on its most natural reading, the statute calls for the
forfeiture rule. AEDPA expressly enacted, without further
qualification, “[a] 1-year period of limitation” for habeas ap
plications by persons in custody pursuant to the judgments
of state courts. § 2244(d)(1) (emphasis added). We have re
peatedly stated that the enactment of time-limitation periods
such as that in § 2244(d), without further elaboration, pro
duces defenses that are nonjurisdictional and thus subject to
waiver and forfeiture. See Zipes v. Trans World Airlines,
Inc., 455 U. S. 385, 393 (1982); see also Eberhart v. United
States, 546 U. S. 12, 15 (2005) (per curiam); Kontrick v.
Ryan, 540 U. S. 443, 447 (2004). Absent some affirmative
incompatibility with habeas practice, there is no reason why
a habeas limitations period should be any different. By im
posing an unqualified “period of limitation” against the back
ground understanding that a defense of “limitations” must
be raised in the answer, see Civil Rules 8(c), 12(b), the stat
ute implies that the usual forfeiture rule is applicable.
1 The Court observes that “[w]ere we to accept Day’s position, courts
would never (or, at least, hardly ever) be positioned to raise AEDPA’s
[Antiterrorism and Effective Death Penalty Act of 1996] time bar
sua sponte,” because “information essential to the time calculation is often
absent” at the Rule 4 prescreening stage, ante, at 207, n. 6. But to be
distressed at this phenomenon is to beg the question—that is, to assume
that courts ought to “be positioned to raise AEDPA’s time bar
sua sponte.” That is precisely the question before us.

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214 DAY v. McDONOUGH
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Instead of identifying an inconsistency between habeas
corpus practice and the usual civil forfeiture rule, the Court
urges that “it would make scant sense to distinguish in
this regard AEDPA’s time bar from other threshold con
straints on federal habeas petitioners” that may be raised
sua sponte—ante, at 209—namely, exhaustion of state rem
edies, procedural default, nonretroactivity, and (prior to
AEDPA) abuse of the writ. See Granberry v. Greer, 481
U. S. 129, 133 (1987) (exhaustion); Caspari v. Bohlen, 510
U. S. 383, 389 (1994) (nonretroactivity). But unlike
AEDPA’s statute of limitations, these defenses were all cre
ated by the habeas courts themselves, in the exercise of their
traditional equitable discretion, see Withrow v. Williams,
507 U. S. 680, 717–718 (1993) (Scalia, J., concurring in part
and dissenting in part), because they were seen as necessary
to protect the interests of comity and finality that federal
collateral review of state criminal proceedings necessarily
implicates. See McCleskey v. Zant, 499 U. S. 467, 489–491
(1991) (abuse of the writ); Wainwright v. Sykes, 433 U. S.
72, 80–81 (1977) (procedural default); Teague v. Lane, 489
U. S. 288, 308 (1989) (nonretroactivity); Rose v. Lundy, 455
U. S. 509, 515 (1982) (exhaustion of state remedies). Unlike
these other defenses, no time limitation—not even equita
ble laches—was imposed to vindicate comity and finality.
AEDPA’s 1-year limitations period is entirely a recent crea
ture of statute. See ante, at 202, n. 1. If comity and finality
did not compel any time limitation at all, it follows a fortiori
that they do not compel making a legislatively created, for
feitable time limitation nonforfeitable.
In fact, prior to the enactment of AEDPA, we affirma
tively rejected the notion that habeas courts’ traditionally
broad discretionary powers would support their imposition
of a time bar. Historically, “there [wa]s no statute of limita
tions governing federal habeas, and the only laches recog
nized [wa]s that which affects the State’s ability to defend
against the claims raised on habeas”—which was imposed by

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215 Cite as: 547 U. S. 198 (2006)
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Rule, and not until 1977. Brecht v. Abrahamson, 507 U. S.
619, 637 (1993); see also United States v. Smith, 331 U. S.
469, 475 (1947); 17A C. Wright, A. Miller, & E. Cooper, Fed
eral Practice and Procedure § 4268.2, pp. 497–498 (2d ed.
1988) (hereinafter Wright & Miller). We repeatedly as
serted that the passage of time alone could not extinguish
the habeas corpus rights of a person subject to unconstitu
tional incarceration. See Pennsylvania ex rel. Herman v.
Claudy, 350 U. S. 116, 123 (1956); Chessman v. Teets, 354
U. S. 156, 164–165 (1957). For better or for worse, this doc
trine was so well entrenched that the lower courts regularly
entertained petitions filed after even extraordinary delays.
See, e. g., Hawkins v. Bennett, 423 F. 2d 948, 949 (CA8 1970)
(40 years); Hamilton v. Watkins, 436 F. 2d 1323, 1325 (CA5
1970) (at least 36 years); Hannon v. Maschner, 845 F. 2d 1553,
1553–1555 (CA10 1988) (at least 24 years). And in 1977,
when enactment of the former Habeas Rule 9(a) “intro
duce[d] for the first time an element of laches into habeas
corpus,” 17A Wright & Miller § 4268.2, at 498—by adopting
the rule against “ ‘prejudicial delay’ ” to which the Court
refers, ante, at 202, n. 1—even that limited doctrine was
treated as subject to the very same pleading requirements
and forfeiture rule that the Court rejects today for the
stricter limitations period of § 2244(d). See Smith v. Secre
tary of New Mexico Dept. of Corrections, 50 F. 3d 801, 821–
822, n. 30 (CA10 1995); see also McDonnell v. Estelle, 666
F. 2d 246, 249 (CA5 1982).
There is, therefore, no support for the notion that the tra
ditional equitable discretion that governed habeas proceed
ings permitted the dismissal of habeas petitions on the sole
ground of untimeliness. Whether or not it should have, see
Collins v. Byrd, 510 U. S. 1185, 1186–1187 (1994) (Scalia, J.,
dissenting), it did not. The Court’s reliance on pre-existing
equitable doctrines like procedural default and nonretroac
tivity is, therefore, utterly misplaced. Nothing in our tra
dition of refusing to dismiss habeas petitions as untimely

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216 DAY v. McDONOUGH
Scalia, J., dissenting
justifies the Court’s decision to beef up the presumptively
forfeitable “limitations period” of § 2244(d) by making it the
subject of sua sponte dismissal.
In what appears to be the chief ground of its decision, the
Court also observes that “the Magistrate Judge, instead of
acting sua sponte, might have informed the State of its obvi
ous computation error and entertained an amendment to the
State’s answer” under Civil Rule 15(a). Ante, at 209. Al
though “an amendment to the State’s answer might have ob
viated this controversy,” the Court concedes, “we see no dis
positive difference between that route, and the one taken
here.” Ibid. But this consideration cuts in the opposite di
rection. If there truly were no “dispositive difference” be
tween following and disregarding the rules that Congress
has enacted, the natural conclusion would be that there is no
compelling reason to disregard the Civil Rules.2 Legisla
tively enacted rules are surely entitled to more respect than
this apparent presumption that, when nothing substantial
hangs on the point, they do not apply as written. And, un
like the novel regime that the Court adopts today, which
will apparently require the development of new rules from
scratch, there already exists a well-developed body of law to
govern the district courts’ exercise of discretion under Rule
2 I agree with the Court that today’s decision will have little impact on
the outcome of district court proceedings. In particular, I agree that “if
a [district] judge does detect a clear computation error, no Rule, statute,
or constitutional provision commands the judge to suppress that knowl
edge,” ante, at 210. Rather, a judge may call the timeliness issue to the
State’s attention and invite a motion to amend the pleadings under Civil
Rule 15(a), under which “leave shall be freely given when justice so re
quires.” In fact, in providing for leave whenever “justice so requires,”
Rule 15(a), the Civil Rules fully accommodate the comity and finality inter
ests that the Court thinks require a departure from the Civil Rules, see
ante, at 206, 210. Requiring the State to take the affirmative step of
amending its own pleading at least observes the formalities of our adver
sary system, which is a nontrivial value in itself. See United States v.
Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment).

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15(a). See 6 Wright & Miller §§ 1484–1488 (2d ed. 1990 and
Supp. 2005). Ockham is offended by today’s decision, even
if no one else is.
But, in fact, there are at least two notable differences be
tween the Civil Rules and the sua sponte regime of such
cases as Granberry and Caspari—both of which involve suf
ficiently significant departures from ordinary civil practice
as to require clear authorization from the statute, the Rules,
or historical habeas practice. First, the Granberry regime
allows the forfeited procedural defense to be raised for the
first time on appeal, either by the State or by the appellate
court sua sponte. See 481 U. S., at 130, 133; Schiro v.
Farley, 510 U. S. 222, 228–229 (1994). Ordinary civil prac
tice does not allow a forfeited affirmative defense whose un
derlying facts were not developed below to be raised for the
first time on appeal. See Weinberger v. Salfi, 422 U. S. 749,
764 (1975); Metropolitan Housing Development Corp. v. Ar
lington Heights, 558 F. 2d 1283, 1287 (CA7 1977). The abil
ity to raise even constitutional errors in criminal trials for
the first time on appeal is narrowly circumscribed. See Fed.
Rule Crim. Proc. 52(b); United States v. Olano, 507 U. S. 725,
732 (1993). Comity and finality justified this departure from
ordinary practice for historically rooted equitable defenses
such as exhaustion. See Granberry, supra, at 134. But
limitations was not such a defense.
Also, Granberry and the like raise the possibility that the
courts can impose a procedural defense over the State’s af
firmative decision to waive that defense. The Court takes
care to point out that this is not such a case, ante, at 210–211,
but it invites such cases in the future. After all, the princi
pal justification for allowing such defenses to be raised
sua sponte is that they “ ‘implicat[e] values beyond the con
cerns of the parties,’ ” including “ ‘judicial efficiency and con
servation of judicial resources’ ” and “the expeditious han
dling of habeas proceedings.” Ante, at 205, 208 (quoting
Acosta v. Artuz, 221 F. 3d 117, 123 (CA2 2000)). There are

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218 DAY v. McDONOUGH
Scalia, J., dissenting
many reasons why the State may wish to disregard the stat
ute of limitations, including the simple belief that it would
be unfair to impose the limitations defense on a particular
defendant. On the Court’s reasoning, a district court would
not abuse its discretion in overriding the State’s conscious
waiver of the defense in order to protect such “ ‘values be
yond the concerns of the parties,’ ” ante, at 205.3 Under the
Civil Rules, by contrast, amending a party’s pleading over
his objection would constitute a clear abuse of the trial
court’s discretion.
In sum, applying the ordinary rule of forfeiture to the
AEDPA statute of limitations creates no inconsistency with
the Habeas Rules. On the contrary, it is the Court’s unwar
3 In order to avoid this seemingly unavoidable conclusion, the Court as
serts, without relevant citation or reasoning, that “should a State intelli
gently choose to waive a statute of limitations defense, a district court
would not be at liberty to disregard that choice.” Ante, at 210, n. 11.
This assertion is contrary to our statement in Granberry v. Greer, 481
U. S. 129, 134 (1987)—a case which, on the Court’s view, it makes “scant
sense to distinguish,” ante, at 209—that an appellate court may dismiss
an unexhausted petition sua sponte in “cases in which the State fails,
whether inadvertently or otherwise, to raise an arguably meritorious non
exhaustion defense.” (Emphasis added.) To support its assertion, the
Court cites nothing but its own earlier statement: “Ordinarily in civil liti
gation, a statutory time limitation is forfeited if not raised in a defendant’s
answer or in an amendment thereto. Fed. Rules Civ. Proc. 8(c), 12(b), and
15(a). And we would count it an abuse of discretion to override a State’s
deliberate waiver of a limitations defense.” Ante, at 202. But as the
statement itself shows, the “ordinary” inability to override the State’s “in
telligent” waiver is coupled with an “ordinary” automatic forfeit of the
defense if it is not timely raised. The Court does not say why it makes
sense, for the statute of limitations of § 2244(d)(1)(A), to reject (as it does)
the first part of the ordinary practice (automatic forfeiture), while embrac
ing the second (inability to override intelligent waiver). The reason for
rejecting the first part surely applies just as well to the second: Section
2244(d)(1)(A) supposedly “ ‘implicate[s] values beyond the concerns of
the parties,’ ” including “ ‘judicial efficiency,’ ” “ ‘conservation of judicial re
sources,’ ” and “expeditious handling of habeas proceedings.” Ante, at
205, 208.

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ranted expansion of the timeliness rule enacted by Congress
that is inconsistent with the statute, the Habeas Rules, the
Civil Rules, and traditional practice. I would hold that the
ordinary forfeiture rule, as codified in the Civil Rules, applies
to the limitations period of § 2244(d). I respectfully dissent.