Habeas corpus; 28 USC § 2255; One-year statute of limitations; § 2255(f)(1); Whether the government’s failure to raise the timeliness issue constituted a “forfeiture” or a “waiver”; Wood v Milyard; Standard for evaluating intent; Sua sponte dismissal of petitioner’s § 2255 motion on timeliness grounds

The court held that where the government failed to raise the untimeliness of petitioner-Walker’s habeas petition as a defense in its response, the district court erred by characterizing this as a “forfeiture” when it instead constituted a “waiver” and by sua sponte dismissing the petition as untimely without considering it on the merits. Walker petitioned for habeas relief on his drug conviction based on ineffective assistance of counsel. He argued that a letter he had sent to the district court while the time period was still running should have constituted his petition or at least tolled it. The government opposed the petition but neglected to raise the time-limitation defense in its response. The district court nonetheless dismissed the petition for untimeliness. Walker appealed, and the court remanded for the district court to consider whether the government’s failure to raise the defense resulted in a forfeiture or waiver. The district court ruled that the government had forfeited the defense and again dismissed the petition as time-barred. Walker argued that it should not have considered the timeliness defense where the government waived it. The court explained that it was essential to determine whether there was a forfeiture or a waiver because the district court could consider the timeliness issue sua sponte if there was a forfeiture but could not do so if there was a waiver. It noted that “intent separates forfeiture from waiver.” The court held “the district court erred by requiring explicit relinquishment when it looked for signs of intent.” It considered “the recorded communications with and briefing before the district court” de novo and concluded that the government’s conduct constituted a waiver. It determined the facts showed “that the government understood the timeline for Walker’s motion and knew not only that timeliness was at issue in this case, but specifically that it could make a viable statute of limitations argument. Yet the government chose not to pursue it. This knowledge distinguishes the government’s situation from the commonplace reality that sometimes parties unintentionally forfeit an argument because they do not recognize an issue or discover a plausible argument on point until later in the litigation.” Given that the government waived the defense, it was error for the district court to sua sponte dismiss Walker’s § 2255 motion on timeliness grounds. Reversed and remanded.