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. Thirdly, Day argued that the state public defenders had withheld his trial transcript for 352 days and the delay had 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 was 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 affirmed it in a per curiam decision. The court had ruled on the 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." Decision The Court affirmed the decision of the Eleventh Circuit in a 5–4 ruling. Justice Ruth Bader Ginsburg delivered the opinion for the majority in holding that district courts are permitted but not obliged to consider sua sponte the timeliness of a state prisoner's habeas corpus petition. Based on precedent involving other affirmative defenses to habeas petitions and the perceived lack of difference between outright dismissal by the district court and dismissal after allowing the State to amend its answer to include the limitations defense, the Court did not consider the district court's dismissal of Day's petition to be an abuse of discretion. Justices John Paul Stevens and Antonin Scalia filed dissenting opinions. Majority opinion The Court grouped the statute of limitations defense with other non-jurisdictional affirmative defenses to a habeas corpus petition such as exhaustion of remedies, which the Court had ruled in Granberry v. Greer, 481 U.S. 129 (1987) federal appellate courts may address sua sponte although the issue not had been raised at the district court level. There was similar precedent involving the non-retroactivity rule and procedural default. The Court noted that the statute of limitations is expressly grouped with those other defenses under the current version of Rule 5(b) of the Rules Governing Section 2254 Cases in the