Wood Miilyard SCOTUS Transcript

Official - Subject to Final Review
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IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x PATRICK WOOD, Petitioner v. KEVIN MILYARD, WARDEN, ET AL. : : : : No. 10-9995
- - - - - - - - - - - - - - - - - x Washington, D.C. Monday, February 27, 2012
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:04 a.m. APPEARANCES: KATHLEEN A. LORD, ESQ., Assistant Federal Public Defender, Denver, Colorado; on behalf of Petitioner. DANIEL D. DOMENICO, ESQ., Solicitor General, Denver, Colorado; on behalf of Respondents. MELISSA ARBUS SHERRY, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; for United States, as amicus curiae, supporting Respondents.
Alderson Reporting Company
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF
C O N T E N T S
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KATHLEEN A. LORD, ESQ. On behalf of the Petitioner ORAL ARGUMENT OF DANIEL D. DOMENICO, ESQ. On behalf of the Respondents ORAL ARGUMENT OF MELISSA ARBUS SHERRY, ESQ. For United States, as amicus curiae, supporting Respondents REBUTTAL ARGUMENT OF KATHLEEN A. LORD, ESQ. On behalf of the Petitioner 49 39 22 3
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P R O C E E D I N G S (11:04 a.m.) CHIEF JUSTICE ROBERTS: We'll hear argument
next in Case 10-9995, Wood v. Milyard. Ms. Lord. ORAL ARGUMENT OF KATHLEEN A. LORD ON BEHALF OF THE PETITIONER MS. LORD: please the Court: The Tenth Circuit, after finding that Mr. Wood's petition presented two substantial claims, denied him habeas relief solely on the ground that his petition was untimely. It did this even though the Mr. Chief Justice, and may it
State had done three things that should have precluded this result: First, the State deliberately relinquished
a known statute of limitations defense. Second, in doing so the State acted strategically, not inadvertently. And third, in doing
so the State induced the district court to expend substantial resources in deciding claims of exhaustion and deciding claims on the merits. JUSTICE SOTOMAYOR: two questions presented. Counsel, we asked for Do court of And
The first was:
appeals have the power sua sponte to raise issues?
in your reply brief you appear to say, yes, they do in 3
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some circumstances.
So are you conceding that that
power exists or that there is no power whatsoever? MS. LORD: I'm proposing a clear line that
would divide situations in which the court of appeals would have power and those in which it absolutely has no power. JUSTICE SOTOMAYOR: Is that a question of
power or a question of exercise of discretion? MS. LORD: power, and this is why. JUSTICE SOTOMAYOR: strange. That seems sort of Either you If you I would say it's a question of
Both rely on a factual situation. That's power.
can do something or you can't.
can do it sometimes, that's still power, and then the question is did you do it when you couldn't do it. MS. LORD: Well, what I'm proposing is that
there are situations when it is never a proper exercise of the appellate court's jurisdiction to consider sua sponte a statute of limitations defense even in the habeas context. CHIEF JUSTICE ROBERTS: said in Day, isn't it? MS. LORD: Correct, that in Day the Court Well, that's what we
said that courts -- "courts;" it wasn't directed at appellate courts, but -- no court would be free to 4
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disregard a deliberate waiver of a statute of limitations defense. JUSTICE SOTOMAYOR: So all this fight is
about is whether there was a deliberate waiver or not? MS. LORD: Well, that's - As opposed to power?
JUSTICE SOTOMAYOR: MS. LORD:
That's our primary, our primary
argument, is that there was a deliberate waiver in this case and, given, what this Court said in Day, the case could be resolved on that narrow ground. JUSTICE GINSBURG: It is what the -- swords
are crossed over here because you say this is a deliberate waiver and the government says no, it's - it's a forfeiture, and forfeiture -- if it's forfeiture, then the court of appeals has discretion to take it up. If it's a waiver then Day makes clear. So it's a
question of which box this case fits into, is it forfeiture or is it waiver. waiver. MS. LORD: That's correct and my position And your position is it's
also is that there is an overlap between those boxes and that when the statute of limitations defense is forfeited in the sense of not being preserved in a timely manner -- because of a deliberate choice, I mean -- and in this instance - 5
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JUSTICE SCALIA:
Well, are there a lot of
cases raising, you know, the ambiguity that exists in this case? I mean, if you tell me that's all this case
is about I think we ought to dismiss it, dismiss it as improvidently granted. We don't sit here to decide
whether when the government says, you know, we do not concede it but we are not arguing it, or whatever the language was, we don't sit to decide factual questions like that that come up in a particular case. I thought we took this case to decide the more significant issue, on which there is a division in the lower courts, as to whether there is, as you say, power of the court to disregard the fact that the statute of limitations defense has not been raised. all agree it wasn't raised. Now, whether it was If that's all you You
forfeited or not is another question.
want us to decide, I don't want to decide that. MS. LORD: Well I clearly want a decision This -- this Court granted
that would favor my client.
cert on two issues and certainly this case presents the first issue, which is whether a court of appeals, once the State has had an opportunity to raise the statute of limitations defense and chooses not to, whether the court - JUSTICE SOTOMAYOR: 6
Only the opportunity or
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when it acknowledges -- in Day we faulted the district court for not telling the State essentially, which - not telling the State that it had a potential statute of limitations defense. Is it your position that if the State had just been silent about the statute of limitations defense and not raised it, that the court of appeals wouldn't have power? Or is it your position that
because they knew they had the defense and didn't raise it that the court of appeals didn't have power to sua sponte raise it. MS. LORD: Well, both -- the district court
ordered the State to announce - JUSTICE SOTOMAYOR: question. MS. LORD: I'm sorry. Does the court of You're not answering my
JUSTICE SOTOMAYOR:
appeals have the power sua sponte to raise it if the state -- neither the court or the State addressed the issue? MS. LORD: Probably yes. Probably yes. So it Is
JUSTICE SOTOMAYOR:
All right.
doesn't have the power if the issue has been raised? that your position? MS. LORD: That's correct. 7
If the stage of
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the proceedings is after it was in Day, because in Day when the issue arose under the Rules of Civil Procedure and under traditional treatment of statute of limitations defense there was still time for the State to announce -- there was still time for the State to change or to raise the statute of limitations defense. JUSTICE ALITO: It sounds like what you're
arguing is that the court of appeals abused its discretion in viewing this as a plain forfeiture, which you've just said would permit the court of appeals to raise the issue sua sponte, instead of a deliberate waiver. Is that what it comes down to. MS. LORD: Or a purposeful forfeiture. I
mean, there are forfeitures by - JUSTICE ALITO: They put it in the wrong -
they abused their discretion by putting it in the wrong box. They didn't put it in the forfeiture box; they put
it in the deliberate waiver box. MS. LORD: Well, the way the court of
appeals handled it will create problems if it's approved by this Court, because - JUSTICE ALITO: This is what -- this is what
troubles me about your argument that the court of appeals abused its discretion. Is it correct that you
did not raise the issue of the court of appeals' lack of 8
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authority to raise this sua sponte until rehearing? MS. LORD: What happened, Your Honor, is
that we were appointed at the certificate of appealability stage and we were ordering to brief timeliness. Perhaps I took the order too literally. I
briefed timeliness, but I also set out exactly what happened, which is in the briefs and which sets forth the State's position. The court itself raised Day and raised its limited authority under Day to consider a statute of limitations defense. They found, rather than a
deliberate waiver, which I believe the record supports, that the State's comments were cryptic, and I will stress - JUSTICE ALITO: But you're arguing that the
court of appeals abused its discretion by failing to rule in your favor on an argument that you didn't make? MS. LORD: No. I -- the court was aware of
Day and the court analyzed what it was doing under Day and it determined whether there was a deliberate waiver. Once the court found there was a deliberate waiver, I definitely challenged that finding. I -- there is a
very strong argument not included within the -- the questions presented, that this is a totally timely petition. And it's only, it's a very difficult 9
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argument.
Which is one of the reasons why it shows how
much the State's actions in the district court were strategic. JUSTICE GINSBURG: Well, you had two
opportunities at least to make the argument based on the original post-conviction motion, the 1995 post conviction motion. silent twice. MS. LORD: Silent on the impact of the 19 - You did not raise that. You were
we were not silent on the impact of the 1995 motion. We've always said, and in fact the State has never disputed, that that was a properly filed motion, and the only issue was whether it was tolled -- whether it tolled the statute of limitations period until 2004. And the State realized that that issue -- if they were to prevail on the timeliness issue, it was a very, very difficult issue. JUSTICE GINSBURG: Well then, I'm confused
because I thought that there was -- it was conceded that the question was asked did you file another post-conviction motion; answer: MS. LORD: No.
I understand your question now.
When Mr. Wood was pro se, he filled out pro se motions, and in those pro se motions he did say that there -- and I'm talking about the 2004 motions -- he said there was 10
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no prior post-conviction motion. And I believe he was confused because if you look at the forms, both the Federal forms and the State forms that show what a -- a defendant should check, it makes it sound like a motion has to have been ruled on; and Mr. Wood was pro se and simply confused. else was confused once the State entered their appearance. pending. They knew that the 1995 motion was still And no one
All they had to do was sit at a computer and
bring up the minute orders from the State, and they could learn that. So the courts in making their rulings always from the time -- and, you know, one of the reasons why what happened was so strategic, and so clear, is that the district court had initially dismissed Mr. Wood's petition as untimely. And - Ms. Lord, could I ask you
JUSTICE KAGAN:
about the first question presented? MS. LORD: Uh-hmm. As I understand the opposing It says: In Day
JUSTICE KAGAN:
argument, it goes sort of like this.
we said it's fine to do this in the district court; even if the party hasn't raised it, the court can raise it on this exact issue. In Granberry we said with respect to
a different issue that the appellate court could raise 11
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it; and in Day we said that those two issues were really the same. So that seems sort of like a logical argument that just gets you to a place where you lose on the first question, unless perhaps there is a difference between a court raising a question sua sponte and a court allowing a party to raise it later than the party ought to have raised it. Are you relying on that
distinction, or are you questioning the logic of the basic argument that Granberry and Day decided this? MS. LORD: Both. And with respect to the
first argument about there being a difference between a party presenting an issue and a court sua sponte raising the issue, there is a difference. And the courts, the
circuit courts do not always make that distinction and do not always focus on that. For example in Granberry
it actually was a case where the party presented -- the State presented on appeal the exhaustion issue, and the court agreed to hear it even though the State hadn't raised it below. Here, you know, at least five times in our joint appendix you'll see the court saying that they can't act as an advocate for the Petitioner. And in
fact when the Petitioner, Mr. Wood, tried to raise an - the exhaustion issue again, the Tenth Circuit in its 12
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certificate of appealability said he is bound by his decision to dismiss these unexhausted claims, notwithstanding his pro se status. And in the same
breath, the court of appeals resurrected the at least concededly forfeited statute of limitations defense on behalf of the State. But I'd also like to - JUSTICE SOTOMAYOR: I'm a little confused.
You seem to be arguing that because the court of appeals raised it before the party did, that that's worse than a party raising it first. Is that your position? That
that -- that the court of appeals has more power after a party who has forfeited below or waived below now tries to come up on appeal and assert a defense that they didn't assert below? power? MS. LORD: It raises different concerns. It's that when a My Now the court of appeals has more
concern is not the relative power.
court is raising something sua sponte it defeats the party presentation principle. That's one concern.
When the court is -- when the party raises it after having forfeited, everyone concedes here that they wouldn't be allowed to. So in essence what happens
is the court is acting as a super advocate for - JUSTICE SOTOMAYOR: 13
But those arguments were
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rejected in Granberry and Day. MS. LORD: Well, that - Why should they win now?
JUSTICE SOTOMAYOR: MS. LORD:
Well, and that was -- I was going
to -- I had a second part of my answer to Justice Kagan, which is there is something really different going on in Granberry and in Day, and you can't add the two and come up with a neat package such as what's suggested by the State. And in Granberry, of course, as the Court all knows, the Court was dealing with exhaustion, and it was dealing with exhaustion, which goes to the heart of habeas and comity and all those concerns, at a time when dismissing a case to exhaust claims, all that would do is delay Federal relief. relief. And this Court in Rhines v. Weber recognizes that when AEDPA -- AEDPA was passed, it transformed the landscape, and it really made some changes. And whether It wouldn't eliminate Federal
the -- the notion in Granberry that exhaustion can be raised for the first time on appeal transfers to the statute of limitations, I think there is real doubt about that, and I think that goes to an important question, and the question that the Court granted cert on. 14
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JUSTICE KAGAN:
But didn't Day say that
those two issues were functionally identical for this purpose? MS. LORD: Not for this purpose. And by
"this purpose" I mean the court of appeals' authority to raise sua sponte the defense. there were two prongs to Day. In Day, this Court - In the context of Day.
Which was, you know, where the State had filed a Rule 5 response and patently erroneously calculated the -- the limitations period, and the court noticed it and there is no law that required, as this Court held, the court to muzzle itself and not mention you've miscalculated these days. We are in a totally different situation. And the Rules of Civil Procedure allowed what happened in Day. And - JUSTICE ALITO: applies here? here. What Rule of Civil Procedure They don't allow what happened in our case.
You're talking about appellate procedure
Is there a rule of appellate procedure that
governs this? MS. LORD: Procedure 8(b) and 12. JUSTICE ALITO: Well, they refer to what I'm referring to Civil Rule of
happens in the district court, and Day dealt with that. 15
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Now you're in the court of appeals.
What rule is there
that addresses the situation in the court of appeals? MS. LORD: Well, there is the traditional
rule that if you don't raise it you lose it, when we are talking about a statute of limitations defense. And
it's really key here, because when AEDPA engrafted this 1-year statute of limitations into the habeas proceedings it knew how 1-year statute of limitations were treated. And yes, in Day, quite correctly the
Court held that in that context you're going to treat those defenses the same, especially with respect to Rule 4, which would allow a court to dismiss a petition just on its face. JUSTICE ALITO: You made an argument in your
brief that I found it a little difficult to follow, so maybe you can explain it. You seemed to suggest that
the State's position on timeliness in district court somehow induced your client to dismiss the claims that were arguably not exhausted. And I found it difficult
to understand why the -- why your client's strategy as to whether he wanted to dismiss those claims are not - would be affected by the State's position on timeliness. MS. LORD: Well, if the State had challenged
timeliness at the stage that AEDPA contemplates it would, it would have created a real complicated issue on 16
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abandonment, and I think the briefs suggest just how complicated that is under Colorado law. And if that had
happened, the court very well could have, district court, could have appointed counsel for Mr. Wood -- I mean, if there had been an evidentiary hearing, if, as the Tenth Circuit found, the issue was so complex that counsel was necessary. So once you had counsel, in the State's reply or in its answer they indicated that several of Mr. Wood's claims were not exhausted, and some of those claims were in that 1995 motion that was pending. With
counsel, there could have been a request for "a stay and abey." There could have been so much that was done.
Mr. -- but because the State chose to simplify the proceedings, that's what they did, and it was not inadvertent; it wasn't a mistake. They chose to make it
simple and to focus on exhaustion, so they got four claims dismissed on exhaustion grounds, and then they dealt with the other two claims on the merits. They also had a procedural default issue which was totally unconstitutional. They were relying
on a procedural default that didn't exist at the time you had to raise it. But that simplified the Mr. -
proceedings, made it more a question of the law. JUSTICE SOTOMAYOR: 17
So what's wrong with
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that?
Why should we be penalizing the State for trying
to simplify an action, and make it move more expeditiously? MS. LORD: Absolutely we should not. But we
also should hold them to that strategic choice, which is what Day says you do, and we have to hold them to that choice because there were consequences and there were changes of positions. And they got the benefit of going They eliminated
forward and just looking at exhaustion. the risk of an evidentiary hearing. risk of a lawyer.
They eliminated the
They induced Mr. -- they induced
Mr. Wood to dismiss four claims because -- oh, sorry. Because -- I'm sorry. I didn't see you. No, no. Keep going.
CHIEF JUSTICE ROBERTS: MS. LORD:
No -- because he was assured that
he could go forward on two substantial constitutional claims without worrying about time bar, because the State said that. They said twice: We are not
challenging, we will not challenge timeliness. JUSTICE ALITO: understand. That's what I don't One So he says:
Why -- you have two situations.
situation, the State's raising timeliness.
Okay, they're raising timeliness; I'm not going to dismiss my -- the claims that they say are not exhausted. The other situation, they -- they don't say 18
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anything about timeliness, and he says:
Now I'm going
to dismiss the claims that are -- that they say are unexhausted. I don't understand the connection. MS. LORD: Well, the connection is, the
State guaranteed that they would not challenge timeliness. And that allowed Mr. Wood to go forward on
two constitutional claims without ever having to worry that they would be subject to time bar. And when the Court - JUSTICE ALITO: benefit to him. I understand why that's a
But what is the connection between that
and the dismissal of the unexhausted claims? MS. LORD: Oh. Because if they had -- if
they had challenged timeliness, they would have raised this very complicated issue, because the only way they can win on timeliness is to win on this newfangled notion of abandonment under Colorado law, which under Colorado law requires a hearing and requires factual development. And once they pursued in the district court that claim of abandonment, it was very likely that a lawyer would be appointed. That lawyer could see that
there were claims still pending in the 1995 motion, and could possibly have sought a stay and abey; could have 19
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gone and tried to exhaust those claims, serious constitutional claims that were in the 1995 motion. And maybe a better way of putting it is if they had raised timeliness in the district court, abandonment would have been front and center. And even
though the court of appeals ultimately resolved this issue without an evidentiary hearing, that was an abuse of discretion itself, too. It was totally contrary to
Colorado law, analyzing that issue. It is no small thing that the position that they took in the district court allowed Mr. Wood to go forward on two claims, two constitutional claims that are substantial that the Court has granted a certificate of appealability on. This is -- this case is so unlike
Day, in the sense -- if an appellate court can raise sua sponte the statute of limitations in a case like this, it can raise it in any case. It invites the State to
take a position in the district court which would be totally contrary to AEDPA's desire for streamlined proceedings. JUSTICE SCALIA: Ms. Lord, an amicus brief
filed on behalf of 15 States contends that the Civil -Rules of Civil Procedure are not what should be consulted here, because they govern only to the extent that they're not inconsistent with habeas rules, and 20
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asserts that the -- the habeas rules should rather apply, and that they -- that they cut against your case. Do you have a response to that? was it in your reply brief or - MS. LORD: It may be. I believe in some of Was it -
the briefs what I've said is there is no inconsistency between Rule 5's requirement that the defense be set forth and the traditional recognition that statute of limitations is lost if not raised. And I cited the
Court to Jones v. Bock, which stresses that for mere policy reasons we shouldn't deviate from the rules that would otherwise apply. And I think - Isn't the screening function
JUSTICE ALITO:
that the -- the district court performs in the habeas case inconsistent with the traditional rule about raising affirmative defenses? MS. LORD: Well, that's the district court,
and that's one of the key differences between the district court and the appellate court. The appellate The
court can issue a certificate of appealability.
district court has that prescreening function, which is just like the prescreening function in the PLRA, where this Court looked at a circuit's attempt to create rules that would address policy concerns and deviated and put an enhanced pleading requirement on prisoners, and 21
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said -- I believe unanimously -- unanimously, that that shouldn't be done. There's a real virtue in having a predictable rule. There's a real virtue in letting the
States or -- letting the States know in the context of this Court's Federal timing rules that they have to raise it, the statute of limitations defense, when they are ordered to and when Rule 5 requires them to. You should not adopt the State's position when it will just invite the sort of sandbagging that this Court has taken care to avoid. You don't want
straddling by the State on something as important to judicial efficiency as asserting the statute of limitations in a timely manner. I'll reserve the rest of my time. CHIEF JUSTICE ROBERTS: Mr. Domenico. ORAL ARGUMENT OF DANIEL D. DOMENICO ON BEHALF OF THE RESPONDENTS MR. DOMENICO: please the Court: In contrast to the new and fairly complicated set of doctrines my friend asked the Court to adopt today, this Court can resolve this case by applying two straightforward longstanding rules. 22
Thank you, counsel.
Mr. Chief Justice, and may it
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First, in Granberry v. Greer, the Court recognized that courts are not bound by a State's failure to properly argue and preserve a procedural bar to a habeas claim; and second, to the extent there is an exception to that rule for deliberate waivers, the Court should apply the common rule that a waiver must be unequivocal. By applying -- please. JUSTICE BREYER: Where? What's the case
that supports you the most on that? MR. DOMENICO: On the -- on the second It's from
Well, that's a common rule.
statutory rights such as in Olano - JUSTICE BREYER: MR. DOMENICO: probably the clearest case. JUSTICE BREYER: What's the word? And it has to be what? Please give me a citation. College Savings Bank is one,
Unequivocal? Unequivocal is a common -
MR. DOMENICO: for waiver of every - JUSTICE BREYER:
You just told me the
Now, I did look at Black's Law Dictionary, and
Black's Law Dictionary, looking up forfeiture and waiver, it seems like you lose. My analysis would be this. 23
Forfeiture is
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the "loss of a right" -- that's what's at issue - "because of a crime." That doesn't apply. "Because of "Neglect
a breach of obligation." of duty."
That doesn't apply.
Now, that does because you didn't file the So it's forfeited. Now you look over to waiver and, as you say,
answer okay?
it says "voluntary relinquishment of a legal right." Okay, what's the legal right? the case dismissed. So I'm the judge. want to get the case dismissed? answer. Okay. I say: State, do you The legal right is to get
I just gave your
I say you voluntarily relinquish your Your legal right was to get the case You didn't assert
legal right.
dismissed, and you relinquished it. it.
That said, that would be the difference. And she's saying that. She's saying that
makes a lot of sense.
When you read Day, they're
worried about the State doing something inadvertently, making a mistake. So what the judge says is: State,
you know you have a pretty good claim here on statute of limitations, but you didn't assert it. give you the right to assert it. Even though it's late. Now you say: So I'm going to
Go ahead, assert it.
You overcome the forfeiture. I assert it, Your Honor. Now you say: I don't
Okay, you haven't waived it. 24
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really care. MR. DOMENICO: Justice Breyer, what the
State was doing here was not strategically trying to - JUSTICE BREYER: Oh, no, I assume they It wasn't a And what
didn't do anything mean, unstrategic. trick.
It was just what is it that they did?
they did is they were given the opportunity to overcome the forfeiture, to assert the statute of limitations claim, and they didn't do it. it. They didn't want to do
I don't know why they didn't want to do it because
there was a lot of trouble raising other issues, dah, dah, dah. But that's their business. The fact is they
didn't do it. MR. DOMENICO: Justice Breyer, the -- the
Court has been clear that a State's failure -- normally, that's true. The normal rule under the Rules of Civil
Procedure is a forfeiture of that sort, failure to raise an argument, is deemed essentially to be a waiver under those definitions. JUSTICE GINSBURG: But this wasn't failure
to raise an argument; this was representing to the court: We will not challenge timeliness. That was the
representation made to the court.
That was not It was
negligent oversight in not raising the question. an affirmative representation to the court that, 25
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although we might have done it, we will not challenge timeliness. MR. DOMENICO: Justice Ginsburg, there was But
an element of mistake, of negligence, as you say. it also was - JUSTICE SCALIA: that? MR. DOMENICO: JUSTICE SCALIA: it? MR. DOMENICO:
Didn't the State adhere to
That's right, Justice Scalia. It kept its word, didn't
What the State was trying to
do, I think, is slightly different than would make sense in any other context. Because of the special procedures
we are under in a habeas, a pre-answer response, what we are telling the court was: We will not assert this
argument unless there is further inquiry from the court. Now, normally in court there would be - JUSTICE BREYER: Wait, wait, wait. When you
say "further," I want to be very precise about the distinction. didn't. Okay. You have to put it in your answer. So that's a forfeiture. You
So now the
judge says you didn't put it in your answer, but I'll raise it. So now you have the right to have the case Do you want to
dismissed for statute of limitations. exercise that right?
The answer to that question was 26
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you didn't. MR. DOMENICO: JUSTICE BREYER: MR. DOMENICO: That is - You said you didn't care. I don't think that's quite an
accurate characterization of what the State - JUSTICE BREYER: All right. Well, one, do
the characterization, but please don't forget my first question, because so far I'm just stuck on Black's Law Dictionary. And I would like you to have better
authorities for your - MR. DOMENICO: Well, the Black's Law This
Dictionary, of course, applies the usual rule.
Court has made clear in Granberry and Day that the usual rule that a forfeiture of a legal right means that it's not to be brought up again, That it doesn't apply to bind the court's hand. quite clear. a forfeiture. JUSTICE KAGAN: But, Mr. Domenico, you're You're saying that Granberry and Day make that
What happened in Granberry would have been
saying something considerably more.
when a State gets up after inquiry by the district court, when a State gets up and says, we do not want to press this argument, Now we are not saying that the argument is wrong, because after all, we are a repeat player and we are going to hear that argument again. 27
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And we are not saying that argument is wrong, but in this case we do not want to press that argument. equivocal -- that's unequivocal to me. MR. DOMENICO: It's unequivocal that we were That's
not going to press it again, though I think the implication -- there would have been no reason to have raised it initially. There would have been no reason to
include this caveat about refusing to concede, if that was all we were trying to say. There are easy ways for
a state to take the issue off the table. JUSTICE SOTOMAYOR: Can I, can I ask you, do
you mean to tell me that, using your own words in your brief, that a waiver is the intentional abandonment of a known right? I think you're equating intentional I have to admit I
abandonment of a known right to be:
could win and I'm giving up that argument. MR. DOMENICO: Well, in that case - Is that what you're
JUSTICE SOTOMAYOR: saying, intent, deliberate? MR. DOMENICO: is you are giving up. JUSTICE SOTOMAYOR:
Well you have to know what it
Well, you knew you had a
defense under the statute of limitations. MR. DOMENICO: Sure. You thought, because you
JUSTICE SOTOMAYOR: 28
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conceded, that you weren't conceding that it was untimely. untimely. So you were conceding you thought it was And despite admitting that you knew you had a
defense, that you knew it could win, you were choosing not to assert it. So tell me why that's not either an
intentional waiver, a deliberate waiver or an abandonment of a known right? MR. DOMENICO: The -- what we were
abandoning to the extent we were abandoning - abandoning anything, it was our ability to force the court to address the issue. In any other context I
agree that maybe -- there may be a distinction with no difference. discrete - JUSTICE SOTOMAYOR: You were protecting the But in this case because there is
court's right to do whatever it wanted. MR. DOMENICO: There was a screening - We were raising the
there was a screening function.
issue precisely to put it on the court's table for consideration. In a habeas - So why isn't it an abuse
JUSTICE SOTOMAYOR:
of discretion for an appellate court, when there has been an intentional abandonment of a known right, to sua sponte raise that defense? MR. DOMENICO: Well, we did not take off the 29
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table the court's right to consider the issue. JUSTICE SCALIA: the right. abandon it? MR. DOMENICO: JUSTICE SCALIA: We did not abandon. Just gave up the You say you didn't abandon
Isn't that your position, you did not
opportunity to raise it yourself. MR. DOMENICO: I think it's confusion
between what we are calling a right or the issue or the defense. We, that's right, gave up our right in the
district court, unless asked, to argue the issue. JUSTICE ALITO: Well, let me give you this There are two
example of a regular civil case.
defendants and the same claim against two defendants. One defendant files an answer and raises a statute of limitations defense, the other one doesn't. The judge
asks the second defendant, are you going to amend your complaint, and the defendant says no. waiver or is that a forfeiture? MR. DOMENICO: Well, I think in your typical Now is that a
case it doesn't matter because forfeitures generally are deemed to be waivers, I think, in your typical case. That's not true under Granberry and Day. The court has
made clear that a forfeiture is different than a deliberate waiver. 30
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JUSTICE ALITO:
Under the terminology we are
using wouldn't that be a forfeiture? MR. DOMENICO: understood as a forfeiture. I think it's better Simply you're not going to
argue the issue, but the issue doesn't necessarily need to be taken off the - JUSTICE BREYER: That's why your colleague
on the other side, why she made this point the way she made it. I think there is no disagreement, at least as Look, he did abandon his That's
far as I hear Justice Scalia.
right, the State, to push the matter. abandonment.
He didn't abandon the right to get the case dismissed if the judge pursues it. So your colleague
says, she, says, the court of appeals does have the power on its own to overcome a forfeiture. That's Day.
But they don't have the power on its own to overcome the waiver. And that's what they are doing. They don't
have the power, in other words, to decide it themselves. They only have the power to overcome a forfeiture. MR. DOMENICO: Well, if the Court looks at
the -- where this deliberate waiver exception to the Granberry and Day rule comes from, it comes from Day and the concern there is that with the court overriding a state's decision to waive, to take the issue off the 31
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table.
There are examples of States doing that.
And
when they do it they are clear about it and you can tell when it would be overridden. JUSTICE GINSBURG: But the consequence of
that was the district court then had to deal with the case on the merits, had to take up the two exhausted claims and rule on them, after having told the district court you don't need -- we are not raising the statute of limitations. We will not challenge timeliness. So
you put the district court to the necessity of deciding the case on the merits. It does. It takes up the two
unexhausted claims and deals with them on the merits. In Day, absolutely nothing transpired between the State saying the claim was timely and the magistrate's detection of the computation error. The
district court wasn't put to what was unnecessary work. It was the consequence of saying we will challenge it, force the district judge to deal with it on the merits. In Day, the counsel didn't bring up the question because counsel thought that it was timely. He had
miscalculated and made a mathematical error. And the judge then said: I see that the
number of days that's required by statute, they have run. And as Day pointed out, at that point a trial Now, you know you miscalculated; 32
judge could have said:
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wouldn't you like to amend your complaint and put in a defense. So the two cases, the two situations are so different. The district judge wasn't -- nobody was made But in here, because the attorney
to do anything extra.
said we won't challenge it, the district judge had to deal with the case on the merits. MR. DOMENICO: Ginsburg. That's right, Justice
We failed in our -- in our duty and our
obligation to protect the district court from having to engage in what had we properly argued this would have been unnecessary. JUSTICE SCALIA: aren't they, Mr. Domenico? MR. DOMENICO: JUSTICE SCALIA: They are, Justice - It's water over the dam and Those are sunk costs,
the issue is whether the court of appeals will then have to repeat the district court's excursus into the merits, right? MR. DOMENICO: That's exactly right. We
have already spent that time.
The question now is if,
if Mr. Wood prevails now, the court of appeals will have to proceed to resolving the case on the merits. Instead
in this case they applied the very common principle that a court of appeals will affirm for any basis supported 33
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by the record.
In order precisely to avoid -- that They avoid having to address a They save having to engage in
happens fairly often. constitutional problem. those efforts again.
CHIEF JUSTICE ROBERTS:
That's a matter of
discretion with the court of appeals. MR. DOMENICO: Absolutely. We recognize
that this is in that middle ground where the court of appeals was certainly under no obligation to do this. Had the court of appeals refused to do it, we wouldn't be here demanding that they be forced to consider this issue. JUSTICE SCALIA: And the court of appeals
could have gotten mad at the fact that district court was compelled to go through the merits, right? MR. DOMENICO: JUSTICE SCALIA: have denied it. don't know why. MR. DOMENICO: Well, it didn't get mad Absolutely. And for that reason could I
But it didn't get mad, I guess.
partly, I think, perhaps because Mr. Wood never argued that the issue was forfeited or waived at all until after, after the court of appeals had already resolved the question. JUSTICE ALITO: 34
Well, why do you say that
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the position that the State took in the district court permitted the district court from considering the time limits issue? If it wasn't a deliberate waiver, then
the district court under Day wasn't prohibited from deciding the case untimely. MR. DOMENICO: Absolutely. I do not think
that the district court was prohibited from considering it. The only reason for us to have raised this sort of
skeletal outline of the argument was precisely so the court of appeals would have the opportunity to consider it. Remember, this was raised initially in the pre-answer response stage where the -- which is specifically part of the district court's preliminary consideration of the issue. So it was certainly ex ante
quite possible that the response of the district court would not be to simply ignore the issue as it did but to either ask for additional briefing, as happens with some regularity, to issue a show-cause order as it had already done, or perhaps to dismiss the case again as it had already done so. So the issue was not off the table. district court very much could have addressed the question. JUSTICE KAGAN: 35
The
Mr. Domenico, do I
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understand your argument correctly to think that if you had not said, or if the lawyer for the State had not we are not conceding, if all that the lawyer for the State had said is, we are not challenging this, Your Honor, would that count as a deliberate waiver under Day? MR. DOMENICO: I think that's a harder case.
The lead up to that, I think, undermines the, at least, the unequivocal nature of that statement because there would have been no reason to have laid out the potential argument if what we were really trying to do was waive the, waive the entire issue as Day uses that, that language. If, if that's what we were trying to do,
there would have been no reason to do that either. JUSTICE KAGAN: If this is - I'm sorry. The new case
JUSTICE SOTOMAYOR: law is what I said.
When you say, I won't raise this
defense; I waive it, everything you said except saying I don't admit it, today, before this circuit court abuses its discretion, you also have to say: I am waiving the
right of the Court of Appeals to raise this sua sponte. That's -- you want that to be what you need to do for us to find a waiver. MR. DOMENICO: that. I don't think you need to say
I don't think there necessarily need to be any
magic words at all, but it needs to be unequivocal and 36
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clear, not ambiguous language that we are going to spend an hour here today trying to debate what it was that we meant. That's the only rule we are asking for today. And the contrary rule really provides some perverse incentives to states. I mean, here the State It discovered
was trying to be candid with the Court. this 1995 motion on its own. mentioned it in his filings.
Mr. Wood had never He had already briefed the
timeliness issue twice in the district court without mentioning it, let alone raising it at any of his petitions. The State found this and tried to be candid, that we weren't entirely clear about how the argument played out, the alternative is that states will be forced into something more than scorched earth, throw everything at the Court, see what sticks, and that's not in anybody's interest, let alone the Federal court's or habeas petitioners. JUSTICE GINSBURG: There is something about
the principle of party presentation, the party raises the issue, the court of appeals is the court of review, not first view. Here in Day, the, the lawyer did not
know that he had a statute of limitations defense, that -- did not know it was miscalculated at the time. Here the State knew very well that it did have a statute 37
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
of limitations argument, but it says: challenging it.
We are not
And then the ordinary thing is that a court of appeals reviews decisions of the district court; doesn't decide questions in the first instance. But
here you are saying the attorney can tell district judge: Don't decide; just go on to the merits. Then
the court of appeals, which is supposed to be reviewing what the district court does, instead deals with that question in the first instance. This seems like an odd
inversion of the role of the district court and court of appeals. MR. DOMENICO: Justice Ginsburg, again, I
don't think it's quite accurate to say that we told the district court not to address the issue. We told the
district court there was an issue that we were going to refrain from presenting our full argument on it. JUSTICE GINSBURG: going to refrain from it. You didn't say: We were
You said:
District judge, Didn't
Your Honor, we will not challenge timeliness. have any qualifications. MR. DOMENICO: qualified it.
Well, I disa -- I do think we
The only reason to include the language The only
about not conceding was to qualify that.
reason to lay out the argument was to make sure that the 38
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court was able to consider it in its screening procedures and - JUSTICE KAGAN: But isn't the concession The
language really going to a different point?
concession language is going to the point of why it is that you're not raising it, that you're not challenging it. MR. DOMENICO: may, Mr. Chief Justice. CHIEF JUSTICE ROBERTS: MR. DOMENICO: Please. I don't think it is, if I
I don't think that there is
any reason for us to have been concerned about how, if we had simply stated we are not challenging it, there would have been no concern about this affecting any other case whatsoever. The only case in which to be
concerned that what we said would be misconstrued as a waiver was this case. CHIEF JUSTICE ROBERTS: Thank you, counsel.
We will hear from Ms. Sherry first. MS. LORD: Oh, I'm sorry. Ms. Sherry.
ORAL ARGUMENT OF MELISSA ARBUS SHERRY, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS MS. ARBUS SHERRY: 39
Mr. Chief Justice, and
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may it please the Court: This Court's decisions in Granberry and Day answer the first question presented. We think
Petitioner can no longer contests that, and the Court can simply decide the first question presented on that basis and reaffirm what it said in Granberry. JUSTICE KAGAN: Ms. Sherry, there is one
difference, is you put Granberry and Day together, ti gets you most of the way there. The one difference is
that here there was sua sponte decision by the Court; whereas, in even the combination of Granberry and Day, it was a party that raised it, although the party raised it late. So why should that difference not matter? If you think that party presentation has some consequence in this area, you might think that that difference does matter; that once you get to the court of appeals and even then the party doesn't raise it, sort of enough is enough. MS. ARBUS SHERRY: that. A couple of responses to
Number one, I think it's significant that Day
itself was a case in which the Court raised it, raised it on its - JUSTICE KAGAN: level - 40
But at the time trial
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concerns. true.
MS. ARBUS SHERRY: JUSTICE KAGAN:
At the trial level -
Of course, the habeas court
has a significant screening function. MS. ARBUS SHERRY: No, that's certainly
I think the procedural default cases are another
good example this Court in Day cited, a number of them, a number of them of which were cases in which the court of appeals was raising the issue sua sponte. On page 12 of our brief, we cite a number of procedural default cases. sua sponte context. A lot of them come up in the
And the courts of appeals have not
made a distinction between the two. I think they certainly implicate different For example, to the extent this Court has
been worried about sandbagging or strategic behavior, I think that's largely absent in circumstances where the Court is raising on its own motions as opposed to the party belatedly raising the issue on appeal. So I do
think if you look at Granberry, you look at Day, you look at Gaspari, you look at Schiro, and you look at the procedural default cases, I think that really does resolve the first question presented. And again, I
don't think the Petitioner argues otherwise at this point. JUSTICE ALITO: 41
Well, I may have forgotten
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the procedural complications of this case, but here, did the State have any opportunity before the court of appeals to raise the timeliness issue prior to the time when the court of appeals issued its certificate of appealability? And if the court of appeals had not
issued a certificate of appealability on the issue of timeliness, would the issue have come up at all? MS. ARBUS SHERRY: The State did have an
opportunity in the court of appeals because after the application for a certificate of appealability was filed, the court did order the State to file a response, and the State didn't argue timeliness in that response. But when the court of appeals did ask for briefing on this issue in the certificate of appealability process, the State, of course, did have an opportunity to respond there, and it did argue that the petition was untimely, and it strongly argued that. And so, I guess, turning to the second question presented of deliberate waiver, I don't think there has been a deliberate waiver in the way that Day spoke about that term here for two primary reasons. Number one when Day spoke of deliberate waiver, it spoke of overriding a State's deliberate waiver, and I think if you look, when the court of appeals decided the timeliness question, there is no way to look at that as 42
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
the State -- as the court, rather actually overriding the State's deliberate waiver. At that point the State
had argued that the petition was untimely. Petitioner never argued that the court shouldn't decide the issue, never argued that that - that the State had waived that issue below. And I think
at that time it's really difficult to characterize that as overriding the State's deliberate waiver. point I would make is in the district court - JUSTICE GINSBURG: But the difference is The other
that in Day counsel didn't know that he had a statute of limitations defense. So the court suggested it. In
this case the defendant -- I mean, the -- the attorney knew, the State's attorney knew, they had a statute of limitations defense and nevertheless told the court we won't challenge timeliness. There is a big difference between, if that's the background of Day where the lawyer didn't know there was a statute of limitations defense; and this one was the lawyer knew very well there was and decided to tell the district court not to -- not to deal with that issue. MS. ARBUS SHERRY: I -- I think that
certainly is true, but I think it's important in deciding whether or not this should be treated as a 43
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
deliberate waiver to look at what the consequences of treating it as such would be. The consequences of
treating it as a deliberate waiver under the language Day is that the court's hands would be bound; the court would be unable to decide the timeliness question. And
it's not just the court of appeals; the district court as well. So if this were a clear deliberate waiver in
district court when the State filed its preanswer response, the district court would have been without any authority to consider - JUSTICE BREYER: that a bad result? these. So why is that -- why is
The -- I -- imagine the facts are
The State forgets to waive the issue, to raise Forgets.
the issue in its defense, all right? Judge: of limitations." State: Your Honor. raise it."
"State you haven't raised a statute
One possible answer.
"Thank you,
We overlooked our forfeiture, we want to That's one. Number two: Number three: They say, "we don't care." "We don't want to." Well - Now in two and three, you Okay?
MS. ARBUS SHERRY: JUSTICE BREYER:
can say this; you could say the reason that we depart from the normal rule that you have to actually assert it 44
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in your defense is we are trying to protect the State - because of habeas. So we protect the State at least by
giving them a chance to make the argument when they forget or some other reasons. Now we gave them a chance. huh -- who cares? Now they say
All right, if that's their attitude,
why is it the habeas court's business to protect the State from themselves? MS. ARBUS SHERRY: about the State. Because it's not just
Because it's -- because of the And that's
institutional interests that are at stake.
why Granberry and Schiro and Caspari and Day allowed there to be consideration of these issues despite forfeiture. It's because of the institutional issues. JUSTICE BREYER: MS. ARBUS SHERRY: right. JUSTICE BREYER: MS. ARBUS SHERRY: And - And -- and that's the Despite forfeiture. Despite forfeiture,
very question here, whether it should be treated like forfeiture or whether it would be treated like waiver. And the reason why I think it would be a bad result to treat it as waiver here and why it would be bad to have bound the district court's hands in this case, if you look at what happened here, the district court on its 45
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
own motion initially dismissed this as untimely.
It
came back and it went to the State and said, you know, I need more information. additional information. It would be a somewhat odd system for when the district court now had this information in front of it, now knew about the 1995 motion, for it not to have been able to do anything further with respect to timeliness on -- on that point. The fact that the State And the State provided that
for whatever reason decided to press other issues shouldn't bind the district court's hands except in the rarest of circumstances. JUSTICE GINSBURG: But we have a system The
where the court doesn't raise issue on its own.
ordinary rule is the party presents it, and when the party says to the court we will not challenge timeliness, it seems to me that's quite a different thing from just having an answer that doesn't raise the defense. It's affirmatively representing to the court
that we -- we are not making this an issue. MS. ARBUS SHERRY: And -- and to be clear, I
think that's certainly a factor that the courts can and do consider in deciding whether to exercise their discretion to consider a timeliness issue. The question
here is whether or not the court should lose any 46
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discretion to consider that issue. JUSTICE GINSBURG: The Court did say that
if -- if a party knowingly waives a limitations defense, then no court can bring it up. choice. MS. ARBUS SHERRY: Court said in Day. That's -- that's what the The party has made its
And I guess the question is -- is And our position
how strictly that should be construed.
would be that it should be strictly construed because of the consequences of that waiver. And again, I think
it's significant that the Court in Day did talk about overriding a State's deliberate waiver. In the dissent,
Justice Scalia, you mentioned the example of a court amending a party's pleading over that party's objections. And I think that really is the narrow
circumstance in which the waiver rule should operate. It's not that the State's behavior is irrelevant to the question before the Court as to whether the Court should exercise its discretion; it's actually quite relevant, and it's something that courts of appeals can and do look at. The question is whether
or not the courts lack any authority to consider a limitations defense or other procedural defense - CHIEF JUSTICE ROBERTS: So you're saying
that if the Court says, you know, you have a good state 47
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of limitations defense, you would clearly win on that. But I'm going to ignore it, even though you didn't raise it? MS. ARBUS SHERRY: I'm sorry, Your Honor? Would it be an abuse
of discretion for the Court not to accept a valid, evident statute of limitations defense on the ground that the State didn't raise it? MS. ARBUS SHERRY: I think under -- under
Day, the question is whether it's a deliberate waiver, and I think under Day, the Court said quite plainly that it would be an abuse of discretion in those circumstances. And I think there are a limited number
of circumstances where -- where that makes sense, and I think the Court has seen examples of that as recently as this term, for example. The Court denied cert in the case Buck v. Thaler earlier this term, where a predecessor case that is an example of the State expressly waiving a procedural default defense because it wanted the Court to reach the merits. In that case, the State said quite
plainly -- in the predecessor case, I should say -- the State said quite plainly because the use of race in the punishment phase seriously undermined the fairness and integrity of the judicial process, the director 48
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expressly waives any procedural bar with respect to that claim. Now, that is the quintessential deliberate waiver. And it took it off table, unlike what happened
in this case. CHIEF JUSTICE ROBERTS: Thank you, counsel.
Ms. Lord, you have 3 minutes remaining. REBUTTAL ARGUMENT OF KATHLEEN A. LORD ON BEHALF OF THE PETITIONER MS. LORD: The problems with the rulings
urged by the amicus and by the State are severalfold. One, it's not contemplated at all by AEDPA that the 1-year Federal timing statute of limitations would be subject to such a wide latitude in the court of appeals to resurrect defenses. JUSTICE ALITO: If a State knows that it has
a potential statute of limitations defense and says nothing, is that a forfeiture or a waiver? MS. LORD: It would be a violation of
Rule 5, which requires them to assert a time bar if they are required to file a response. In our case, it also
would have been a violation of the Court's order. JUSTICE ALITO: be a waiver, in your view. MS. LORD: Probably not. 49
So simply saying nothing can
But if you are -
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JUSTICE ALITO:
If the answer to that is
not, then what is the difference between saying nothing, knowing that you have a defense and saying we're not challenging but we're not conceding? What is the difference? MS. LORD: Well, by not conceding, that It
doesn't undercut the deliberateness of the waiver. actually establishes it.
It establishes that they know
that there's a defense, and they're not agreeing that the petition is timely, but they're deliberately choosing not to assert the statute of limitations. JUSTICE ALITO: way and then I'll - MS. LORD: I'm sorry. Back in the office, they're Let me just ask it one more
JUSTICE ALITO:
considering -- in the State's office, they're considering what they're going to do. And they say
well, what we're going to do is we're not going to challenge it, but we're not going to concede it. therefore, they say nothing. MS. LORD: In the face of Rule 5's And I'd And
requirements, it could very well be a waiver.
cite the court to Hill v. New York, which also addresses one of the State's lawyers' points, which was a waiver -- for the State to waive a statute of 50
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limitations defense, its waiver has to be unequivocal and clear. I don't know if they're suggesting that I
there also has to be an advisement by the Court. don't think they're going that far.
But the fact is, you look at the nature of the waiver, or -- the right being waived. And this
Court recognized in Hill v. New York and other cases that if the right being waived -- for example, the right to be tried in a timely fashion under IAB, it can be waived just by a lawyer accepting a date. And the statute of limitations issue here is a typical strategic decision. And when AEDPA brought
this in, it didn't bring it in as it brought in comity. It is something to move the case along from the Federal point of view. And for this Court to adopt what - Finish your
CHIEF JUSTICE ROBERTS: sentence, please. MS. LORD:
-- the State is suggesting will
just take away all the efficiencies that -- that that 1 year brought to bear. CHIEF JUSTICE ROBERTS: The case is submitted. (Whereupon, at 12:05 p.m., the case in the above-entitled matter was submitted.) Thank you, counsel.
51
52
A abandon 30:2,4,5 31:10,13 abandoning 29:9 29:9,10 abandonment 17:1 19:18,22 20:5 28:13,15 29:7,23 31:12 abey 17:13 19:25 ability 29:10 able 39:1 46:8 above-entitled 1:11 51:24 absent 41:16 absolutely 4:5 18:4 32:13 34:7 34:16 35:6 abuse 20:7 29:21 48:5,12 abused8:8,16,24 9:16 abuses 36:18 accept 48:6 accepting 51:10 accurate 27:5 38:14 acknowledges 7:1 act 12:23 acted3:17 acting 13:24 action 18:2 actions 10:2 add 14:7 additional 35:18 46:4 address 21:24 29:11 34:2 38:15 addressed7:19 35:23 addresses 16:2 50:23 adhere 26:6
admit 28:15 36:18 admitting 29:3 adopt 22:9,24 51:15 advisement 51:3 advocate 12:23 13:24 AEDPA 14:18 14:18 16:6,24 49:12 51:12 AEDPA's 20:19 affirm 33:25 affirmative 21:16 25:25 affirmatively 46:19 agree 6:15 29:12 agreed12:19 agreeing 50:9 ahead 24:22 AL 1:6 ALITO 8:7,15 8:22 9:15 15:18 15:24 16:14 18:20 19:11 21:13 30:12 31:1 34:25 41:25 49:16,23 50:1,12,15 allow15:16 16:12 allowed13:23 15:15 19:7 20:11 45:12 allowing 12:7 alternative 37:14 ambiguity 6:2 ambiguous 37:1 amend 30:17 33:1 amending 47:14 amicus 1:21 2:10 20:21 39:23 49:11
analysis 23:25 analyzed9:19 analyzing 20:9 announce 7:13 8:5 answer10:21 14:5 17:9 24:5 24:12 26:20,22 26:25 30:15 40:3 44:17 46:18 50:1 answering 7:14 ante 35:15 anybody's 37:17 appeal 12:18 13:14 14:21 41:18 appealability 9:4 13:1 20:14 21:20 42:5,6,10 42:14 appeals 3:24 4:4 5:15 6:21 7:7 7:10,18 8:8,10 8:20,24,25 9:16 13:4,9,12,15 15:5 16:1,2 20:6 31:15 33:17,22,25 34:6,9,10,13 34:23 35:10 36:20 37:21 38:4,8,12 40:18 41:8,11 42:3,4 42:5,9,13,24 44:6 47:21 49:14 appear 3:25 appearance 11:8 APPEARANC... 1:14 appellate 4:18 4:25 11:25 15:19,20 20:15 21:19,19 29:22
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8(b) 15:23

Wood Miilyard SCOTUS Transcript

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Official - Subject to Final Review

- - - - - - - - - - - - - - - - - x Washington, D.C. Monday, February 27, 2012

Alderson Reporting Company

Official - Subject to Final Review

Alderson Reporting Company

Official - Subject to Final Review

P R O C E E D I N G S (11:04 a.m.) CHIEF JUSTICE ROBERTS: We'll hear argument

The first was:

appeals have the power sua sponte to raise issues?

in your reply brief you appear to say, yes, they do in 3

Alderson Reporting Company

Official - Subject to Final Review

So are you conceding that that

Both rely on a factual situation. That's power.

can do something or you can't.

Alderson Reporting Company

Official - Subject to Final Review

JUSTICE SOTOMAYOR: MS. LORD:

That's our primary, our primary

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Official - Subject to Final Review

Well, are there a lot of

forfeited or not is another question.

that would favor my client.

Alderson Reporting Company

Only the opportunity or

Official - Subject to Final Review

Alderson Reporting Company

Official - Subject to Final Review

did not raise the issue of the court of appeals' lack of 8

Alderson Reporting Company

Official - Subject to Final Review

Alderson Reporting Company

Official - Subject to Final Review

Which is one of the reasons why it shows how

I understand your question now.

Alderson Reporting Company

Official - Subject to Final Review

All they had to do was sit at a computer and

argument, it goes sort of like this.

a different issue that the appellate court could raise 11

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Official - Subject to Final Review

Alderson Reporting Company

Official - Subject to Final Review

concern is not the relative power.

is the court is acting as a super advocate for - JUSTICE SOTOMAYOR: 13

Alderson Reporting Company

But those arguments were

Official - Subject to Final Review

JUSTICE SOTOMAYOR: MS. LORD:

Well, and that was -- I was going

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Official - Subject to Final Review

But didn't Day say that

You're talking about appellate procedure

Is there a rule of appellate procedure that

happens in the district court, and Day dealt with that. 15

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Official - Subject to Final Review

Now you're in the court of appeals.

What rule is there

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