Adversarial No More: How Sua Sponte Assertion of Affirmative Defenses to Habeas Wreaks Havoc on the Rules of Civil Procedure
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Date
2012
Authors
Macfarlane, Katherine A.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
In every federal civil case, a defendant must raise its affirmative
defenses in the pleading that responds to a plaintiff’s complaint.
According to Federal Rule of Civil Procedure 8(c), failure to properly
plead, for example, a statute of limitations defense, waives the
defense for good. Rule 8(c) does not exempt any category of
affirmative defense, nor does it forgive unintentional omissions of
certain defenses. It also does not prefer governmental defendants to
others. Yet in habeas corpus cases, the most significant affirmative
defenses to habeas petitions need not comply with Rule 8(c). Instead,
federal courts may raise the affirmative defenses of statute of
limitations, exhaustion of state remedies, procedural default and
nonretroactivity sua sponte even if the defense would otherwise be
waived pursuant to Rule 8(c).
This Article contends that habeas litigation is the worst place to
grant State respondents any sort of procedural favor. Habeas cases
implicate criminal convictions that are fundamentally unfair. And
habeas petitioners need all the help they can get—since the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA),
the odds of winning habeas relief are akin to the odds of winning the
lottery.
After examining the history of affirmative defenses, the Article
next describes the purpose behind Rule 8(c) and argues that the rule
was meant to be strictly applied. It next explains how federal courts’
willingness to take sua sponte action on behalf of habeas respondents
violates both the spirit and the letter of Rule 8(c). It further argues that
the Supreme Court’s reliance on comity and other policy-based
justifications do not suffice to overcome the Federal Rules of Civil
Procedure, which apply without regard to what sort of case is being
heard. In light of the curtailed substantive paths to habeas relief, it
also contends that habeas cases are the worst candidates for
aggressive sua sponte advocacy that revives affirmative defenses at
the expense of those imprisoned unfairly.
With respect to Rule 8(c), habeas respondents should be treated
similarly to, not differently from, every other civil defendant. The
Article concludes that assisting respondents with sua sponte action in
habeas cases conflicts with the purpose of an adversarial system by
giving an unfair advantage to defendants who need it the least.
Description
30 pages
Keywords
Habeas corpus, Sua Sponte
Citation
91 Or. L. Rev. 177 (2012)