Adversarial No More: How Sua Sponte Assertion of Affirmative Defenses to Habeas Wreaks Havoc on the Rules of Civil Procedure

30 Pages Posted: 8 Feb 2014

Date Written: April 1, 2012


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 *179 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.

Keywords: Habeas; Federal Rules; civil procedure; exhaustion; comity; sua sponte; affirmative defenses; Rule 8

JEL Classification: K10

Suggested Citation

Macfarlane, Katherine, Adversarial No More: How Sua Sponte Assertion of Affirmative Defenses to Habeas Wreaks Havoc on the Rules of Civil Procedure (April 1, 2012). 91 Oregon Law Review 177 (2012). Available at SSRN:

Katherine Macfarlane (Contact Author)

University of Idaho College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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