Day V. Mc Donough - Background

Background

On September 3, 1998, Patrick Day was convicted of second-degree murder in Florida state court and sentenced to imprisonment for 55 years. After the Florida First District Court of Appeals affirmed Day's conviction and sentence, the AEDPA 365 day statute of limitations for Day to obtain federal habeas corpus relief began to run on March 20, 2000. On March 9, 2001, Day filed a post-conviction petition under Florida state procedure, which tolled the limitation period for filing a habeas petition until December 3, 2002, when the First District Court of Appeals issued its mandate denying Day collateral relief. By then, Day had used 353 of his allotted 365 days, and accordingly had until December 16, 2002, to file a federal habeas petition.

However, Day did not file his petition until January 8, 2003, at which point the limitations period had run. A U.S. magistrate judge nevertheless acknowledged that the petition was "in proper form" and ordered the State of Florida to file an answer, and to make all arguments regarding Day's potential failure to exhaust state remedies or procedural default. The order stated that those arguments would be waived if not addressed in the answer, but it did not expressly mention the statute of limitations. The answer of the State of Florida erroneously asserted that Day's petition was timely filed after "352 days of untolled time," and then addressed Day's substantive arguments.

In December 2003, the court sua sponte issued an order to show cause why Day's petition should not be dismissed as untimely. Day made three arguments against dismissal. First, Day argued that the court should not dismiss his complaint after it had been pending for nearly a year without any suggestion that it was untimely. Second, Day argued that he had 90 days from the denial of his motion for rehearing on collateral appeal to file a petition for a writ of certiorari to the U.S. Supreme Court. Under his calculation, the limitation period for filing his federal habeas petition did not run until 90 days after November 15, 2002. Third, Day argued that the state public defenders withheld his trial transcript for 352 days, and the delay cost him time in which he could have worked toward filing his appeals.

The magistrate judge recommended dismissal of Day's habeas petition. In his objection to the report and recommendation of the magistrate judge, Day argued for the first time that the concession of timeliness by the state was dispositive because it constituted a forfeiture of that defense. The district court instead adopted the magistrate judge's report and dismissed Day's petition.

The United States Court of Appeals for the Eleventh Circuit granted a certificate of appealability only regarding Day's forfeiture argument, and then affirmed in a per curiam decision. The court had previously ruled on this issue to uphold the ability of a trial court to review sua sponte the timeliness of a petition. The court also believed that Florida's concession of timeliness was "patently erroneous".