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Defaulting the Habeas Statute of Limitations

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The US Supreme Court today decided in Wood v. Milyard that the Court of Appeals for the Tenth Circuit abused its discretion in raising on its own a statute of limitations defense that the state knew about but declined to raise.  No big surprise.  The opinion is by Justice Ginsburg, 7-2-0.

Justices Thomas and Scalia concur in the judgment but not the opinion on grounds more favorable to habeas petitioners generally.  They would hold that the state forfeits its statute of limitations defense in a habeas case by not raising it, and the court has no discretion to raise it on its own. An earlier case gave such discretion to the District Court, but they would decline to extend a precedent they regard as erroneous to the Court of Appeals.

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