[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 1, 2009
No. 08-14059 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00854-CV-T-23-MSS
DREW CURTIS HARTLEY,
Petitioner-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 1, 2009)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Drew Curtis Hartley, through counsel, appeals the district court’s dismissal,
without prejudice, of his pro se 28 U.S.C. § 2254 habeas petition, in which he
challenged his 2002 convictions for cocaine possession. On appeal, Hartley argues
that the district court erred by dismissing his petition as a sanction for
misrepresentation because he did not answer Question 14 of his petition falsely and
because dismissal was an inappropriately harsh sanction. We granted a certificate
of appealability on one issue:
Whether the district court erred in dismissing, without prejudice, appellant’s
28 U.S.C. § 2254 petition as a sanction for a misrepresentation in light of the
fact that any subsequent petitions may now be time-barred.
Although we review a denial of a 28 U.S.C. § 2254 habeas petition de novo,
McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005), we review a
Fed.R.Civ.P. 11 sanction for an abuse of discretion, Kaplan v. DaimlerChrysler,
A.G., 331 F.3d 1251, 1255 (11th Cir. 2003). Because the district court dismissed
Hartley’s § 2254 petition as a sanction, we review for an abuse of discretion.
Under Rule 2(c)(5) of the Rules Governing § 2254 Cases in the United
States District Courts, a petitioner must sign his petition “under penalty of
perjury.” Rule 11 of the Rules Governing § 2254 Cases provides that a district
court may apply the Federal Rules of Civil Procedure to § 2254 cases “to the extent
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that they are not inconsistent with any statutory provisions” or the Rules
Governing § 2254. Federal Rule of Civil Procedure 11 permits a district court to
impose sanctions. See Fed.R.Civ.P. 11.
In this case, the district court held that Hartley falsely answered “No” to
Question 14 which asked whether he had “previously filed any type of petition,
application, or motion in a federal court regarding the conviction that [he]
challenge[s] in this petition.” We need not decide in this case whether the district
court was incorrect in construing Hartley’s answer to Question 14 as a false
answer. We do conclude, as the Government concedes, that Hartley “did not
specifically challenge his original conviction.” Government Brief at 9. Thus, it is
clear that Hartley’s answer, at the least, was technically correct. Moreover, the
Government also concedes that “the prior proceedings identified by the . . . [court
below] would have no adverse impact on whether he could proceed on his § 2254
petition.” Id. at 15. Thus, it is also clear that there was no material
misrepresentation. We also note that the district court’s dismissal without
prejudice operates as a dismissal with prejudice because of the statute of
limitations. Under the circumstances here, we conclude that the district court
abused its discretion in dismissing Hartley’s petition. Accordingly, we vacate the
judgment of the district court and remand with instructions that the district court
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address the merits of Hartley’s petition.1
This opinion takes no stance on extraneous issues raised by both parties’
briefs. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998)
(holding “appellate review is limited to the issues specified in the COA”). We
further note that this opinion in no way comments on the merits of Hartley's § 2254
petition.
VACATED and REMANDED.
1
We note the Government’s concession that the sanction was not the least severe that
would serve the purpose of the rule, and its concession that a remand is appropriate.
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