Earnest Coppage v. Don Redman, No. 11-1643 (8th Cir. 2011)
Annotate this CaseCourt Description: Prisoner case - habeas. District court should not have dismissed Coppage's habeas petition as untimely prior to service on the state; dismissal vacated and case remanded with directions to proceed with service on the state.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-1643 ___________ Earnest Coppage, Appellant, v. Don Redman, Appellee. * * * * Appeal from the United States * District Court for the * District of North Dakota. * * [UNPUBLISHED] * ___________ Submitted: June 7, 2011 Filed: July 5, 2011 ___________ Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. North Dakota prisoner Earnest Coppage appeals following the pre-service dismissal of his habeas petition as barred by the statute of limitations. The matter is before this court on his request for a certificate of appealability. We grant Coppage s request, vacate the dismissal, and remand this case to the district court. To begin, we note that Coppage s petition, which was styled as a 28 U.S.C. § 2241 petition, was properly treated as a 28 U.S.C. § 2254 petition. See Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (person in custody pursuant to the judgment of state court can obtain habeas relief only through § 2254, no matter how pleadings are styled; rejecting state prisoner s contention that his petition should be classified as § 2241 petition not subject to limitations of 28 U.S.C. § 2244). While a district court may sua sponte consider the timeliness of a section 2254 petition, the statute-oflimitations defense remains a non-jurisdictional affirmative defense that a state may waive. See Day v. McDonough, 547 U.S. 198, 205, 209, 211 n.11 (2006) (statute-oflimitations defense is not jurisdictional, hence courts are under no obligation to consider time bar sua sponte; district courts are permitted, but not obliged, to consider, sua sponte, timeliness of state prisoner s habeas petition; should state intelligently choose to waive statute-of-limitations defense, district court would not be at liberty to disregard that choice). Upon careful consideration, we conclude that the district court should not have dismissed Coppage s petition as untimely prior to service on the State. See id. at 207 n.6, 210 (district courts are hardly ever positioned to raise § 2244 s time bar sua sponte under Rule 4 of the Rules Governing Section 2254 Cases, because information essential to time calculation is often absent until state has filed, along with its answer, copies of documents from state-court proceedings; before acting on its own initiative, court must accord parties fair notice and opportunity to present their positions). Accordingly, we grant Coppage a certificate of appealability, we vacate the dismissal, and we remand this case to the district court with instructions to proceed with service on the State. ______________________________ -2-
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