UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-11292
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Ben Lyndon Kiser,
Petitioner-Appellant,
VERSUS
Gary Johnson, Director
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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January 6, 1999
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Petitioner-Appellant Ben Lyndon Kiser appeals the dismissal of
his 28 U.S.C. § 2254 habeas petition. Kiser argues that the
district court erred in applying the statute of limitations
provision of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), retroactively to bar the
petition. He further argues that the district court erred in
raising the statute of limitations defense sua sponte. For reasons
that follow, we affirm.
I.
Kiser was convicted by a Texas jury of aggravated sexual
assault of a child on October 2, 1986. The jury found that Kiser
had two prior felony convictions and sentenced him to life
imprisonment. His conviction was affirmed on direct appeal on
November 30, 1987, and the Texas Court of Criminal Appeals refused
a petition for discretionary review on January 11, 1989. Since that
time, Kiser has filed three state habeas applications. The first
was filed on September 6, 1991, and denied on the findings of the
trial court on March 11, 1992. The second was filed on March 13,
1995, and denied on June 26, 1996. The third was filed on July 10,
1997, and dismissed as successive on October 22, 1997.
Kiser filed the instant 28 U.S.C. § 2254 habeas petition on
July 10, 1997, though the petition is dated July 7, 1997. The
magistrate judge issued a report and recommendation that the
petition be dismissed as time-barred by the AEDPA’s one-year
statute of limitations. Kiser filed objections to the magistrate
judge’s report. After conducting a de novo review of the record,
the magistrate judge’s report, and Kiser’s objections, the district
court adopted the magistrate judge’s report as correct and
dismissed Kiser’s petition with prejudice.
Kiser filed a motion for a certificate of appealability
("COA"). The district court granted the COA motion on two issues:
(1) whether the district court erred by finding that Kiser’s
petition was barred by the AEDPA’s statute of limitations; and (2)
whether the AEDPA’s statute of limitations is jurisdictional or an
affirmative defense. Our review is limited to those two issues. See
28 U.S.C. § 2253(c)(2); Lackey v. Johnson, 116 F.3d 149, 152 (5th
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Cir. 1997).1 As they are both issues of law, we review them de
novo. Dyer v. Johnson, 108 F.3d 607, 609 (5th Cir. 1997). We turn
to them now.
II.
Kiser argues that the district court erred in applying the
AEDPA’s statute of limitations2 retroactively to his habeas
1
Kiser also argues denial of effective assistance of counsel.
This argument is beyond the scope of review authorized by the COA,
and therefore will not be addressed here.
2
The statute of limitations provision of the AEDPA states:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation
period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
actions;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
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petition. He argues that the retroactive application had a
"mousetrapping" effect, in that it attached new legal consequences
to events completed before the enactment of the AEDPA. We disagree.
This issue is governed by our decision in United States v.
Flores, 135 F.3d 1000 (5th Cir. 1998), in which we held that the
AEDPA’s statute of limitations applies to all habeas petitions
filed after the AEDPA went into effect.3 In cases where the
petitioner’s conviction became final before the enactment of the
AEDPA, as here, the time limit runs from April 24, 1996, the date
of the AEDPA’s enactment. Id. at 1006 ("[O]ne year, commencing on
April 24, 1996, presumptively constitutes a reasonable time for
those prisoners whose convictions had become final prior to the
enactment of the AEDPA to file for relief."). No new legal
consequences are thereby attached to events completed before the
enactment of the AEDPA, because the statute of limitations did not
begin to run until the date of the AEDPA’s enactment.
Applying Flores to the present case, Kiser had until April 24,
1997 to file his federal habeas petition. He failed to file until
July 10, 1997. Even assuming, as Kiser argues, that the statute of
limitations should have been tolled until June 26, 1996 to account
for the time in which his second state habeas application was
pending, 28 U.S.C. § 2244(d)(2), the federal habeas petition is
still time-barred. If the one-year limitation period began to run
3
Although Flores concerned a 28 U.S.C. § 2255 motion rather
than a 28 U.S.C. § 2254 petition, this Court has since extended the
Flores Court’s reasoning to § 2254 petitions. Flanagan v. Johnson,
154 F.3d 196, 199-200 (5th Cir. 1998).
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on June 26, 1996, when the second state habeas application was
denied, Kiser still filed the federal habeas petition two weeks too
late. The district court therefore correctly determined that
Kiser’s petition was time-barred.
III.
Kiser next contends that the AEDPA’s statute of limitations is
an affirmative defense rather than jurisdictional. As such, Kiser
argues that the magistrate judge and the district court erred in
raising the defense sua sponte. The State concedes that the AEDPA’s
statute of limitations is an affirmative defense rather than
jurisdictional,4 but argues that the district court was nonetheless
within its authority to raise the defense sua sponte in this habeas
case. We agree.
Rule 11 of the Rules Governing Section 2254 Cases states: "The
Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with these rules, may be applied, when appropriate, to
petitions filed under these rules." 28 U.S.C. foll. § 2254 Rule 11.
This Court has previously held that where the Rules Governing
Section 2254 Cases are silent on an issue, Rule 11 compels us to
follow the Federal Rules of Civil Procedure. McDonnell v. Estelle,
666 F.2d 246, 249 (5th Cir. 1982). Kiser points to Rule 8(c) of the
Federal Rules of Civil Procedure, which states in relevant part:
"In pleading to a preceding pleading, a party shall set forth
4
This concession is in line with our recent holding that the
AEDPA’s statute of limitations is not jurisdictional. Davis v.
Johnson, 158 F.3d 806, 810 (5th Cir. 1998).
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affirmatively . . . statute of limitations . . . and any other
matter constituting an avoidance or affirmative defense." FED. R.
CIV. P. 8(c). Pursuant to Rule 8(c), this Court has stated that "an
affirmative defense . . . generally should not [be] raise[d] sua
sponte." Warnock v. Pecos County, Tex., 116 F.3d 776, 778 (5th Cir.
1997). Thus, Kiser maintains that the district court was without
authority to raise the AEDPA’s statute of limitations sua sponte to
bar his habeas petition.
The essential flaw in Kiser’s argument is that it fails to
account for Rule 4 of the Rules Governing Section 2254 Cases, which
states in relevant part:
The original petition shall be presented promptly to a judge
of the district court in accordance with the procedure of the
court for the assignment of its business. The petition shall
be examined promptly by the judge to whom it is assigned. If
it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to
relief in the district court, the judge shall make an order
for its summary dismissal and cause the petitioner to be
notified. Otherwise, the judge shall order the respondent to
file an answer or other pleading within the period of time
fixed by the court or to take such other action as the judge
deems appropriate.
28 U.S.C. foll. § 2254 Rule 4 (emphasis added).
This rule differentiates habeas cases from other civil cases
with respect to sua sponte consideration of affirmative defenses.
The district court has the power under Rule 4 to examine and
dismiss frivolous habeas petitions prior to any answer or other
pleading by the state. This power is rooted in "the duty of the
court to screen out frivolous applications and eliminate the burden
that would be placed on the respondent by ordering an unnecessary
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answer." 28 U.S.C. foll. § 2254 Rule 4 Advisory Committee Notes.
Were we to apply FED. R. CIV. P. 8(c) to the facts of this
case, the ability of the district court to weed out meritless
habeas petitions would be substantially impaired. The statute of
limitations defense plainly appeared on the face of Kiser’s habeas
petition based on its date of filing. Applying Rule 8(c) would
force the district court to order an unnecessary answer in the face
of a plainly applicable affirmative defense. Such a result would be
inconsistent with the language and purpose of Rule 4. Therefore, we
hold that the district court was within its authority under Rule 4
and Rule 11 of the Rules Governing Section 2254 Cases when it
raised the AEDPA’s statute of limitations defense sua sponte.
In holding that FED. R. CIV. P. 8(c) does not bar sua sponte
consideration of the AEDPA’s statute of limitations provision, we
follow a long line of precedent establishing the authority of
courts to raise non-jurisdictional affirmative defenses sua sponte
in habeas cases. See, e.g., Magouirk v. Phillips, 144 F.3d 348, 357
(5th Cir. 1998) (procedural default); Shute v. State of Texas, 117
F.3d 233, 237 (5th Cir. 1997) (exhaustion); Rodriguez v. Johnson,
104 F.3d 694, 697 n. 1 (5th Cir.) (abuse of the writ), cert.
denied, 117 S. Ct. 2438 (1997); McQueen v. Whitley, 989 F.2d 184,
185 (5th Cir. 1993) (abuse of the writ).
Also instructive is our line of precedent holding that the
statute of limitations affirmative defense may be raised sua sponte
in civil actions brought by prisoners under 28 U.S.C. § 1915. See
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993); Ali v.
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Higgs, 892 F.2d 438, 440 (5th Cir. 1990); Green v. McKaskle, 788
F.2d 1116, 1119 (5th Cir. 1986). Those decisions were based on 28
U.S.C. § 1915(d), which states that the district court "may dismiss
the case if the allegation of poverty is untrue, or if satisfied
that the action is frivolous or malicious." The similarities
between Section 1915(d) and Rule 4 are striking: Both provisions
are designed to dispose of frivolous prisoner actions with minimal
waste of resources. That we have authorized district courts to
consider sua sponte the statute of limitations defense in the
Section 1915 context is persuasive support for giving district
courts the same authority in habeas cases.
In sum, even though the statute of limitations provision of
the AEDPA is an affirmative defense rather than jurisdictional, the
magistrate judge and district court did not err by raising the
defense sua sponte. Their decision to do so was consistent with
Rule 4 and Rule 11 of the Rules Governing Section 2254 cases, as
well as the precedent of this Court.
IV.
For the reasons stated above, the district court’s order
dismissing Kiser’s 28 U.S.C. § 2254 habeas petition is
AFFIRMED.
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