Kilgore v. Attorney General of Colorado

Citation519 F.3d 1084
Decision Date11 March 2008
Docket NumberNo. 07-1014.,07-1014.
PartiesKyle Keith KILGORE, Petitioner-Appellant, v. The ATTORNEY GENERAL of the State OF COLORADO; Al Estep, Warden, Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Rudy E. Verner (Geoffrey C. Klingsporn, with him on the briefs), Davis Graham & Stubbs, LLP, Denver, Colorado, for the Petitioner-Appellant.

Laurie A. Booras, Colorado Attorney General's office, Denver, Colorado, for the Respondents-Appellees.

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Kyle Keith Kilgore appeals the district court's sua sponte dismissal of his 28 U.S.C. § 2254 habeas petition. The court dismissed his petition without prejudice because Kilgore failed to comply with two prior orders directing him to show that his petition was timely under the one-year limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See § 2244(d). We granted a Certificate of Appealability ("COA") on one issue: whether, in light of Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), a district court can require a state habeas petitioner to establish in his or her § 2254 application that the application is timely. We hold that the district court cannot dismiss a habeas petition as untimely unless untimeliness is clear from the face of the petition, or unless the state establishes untimeliness as an affirmative defense. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we REVERSE and REMAND this case to the district court for further consideration consistent with this opinion.

I

In 1994, Kilgore was convicted in Colorado state court, and he subsequently sought various forms of relief in state court, including a direct appeal and postconviction motions. On February 27, 2006, he filed a pro se § 2254 habeas application in federal court, alleging claims of ineffective assistance of trial counsel. He stated in his application that he had filed a direct appeal of his state court conviction as well as several postconviction motions. He also indicated that he had a pending state postconviction proceeding at the time of his petition.

On April 4, 2006, a magistrate judge issued an order directing Kilgore to amend his application to include more complete information about his prior state court appeals and motions. This information was necessary, the magistrate explained, for the court to determine whether Kilgore had exhausted his state remedies, see § 2254(b)(1), and whether his application was timely under AEDPA's one-year limitations period, see § 2244(d). The magistrate warned Kilgore that failure to provide the requested information would result in the dismissal of his application.

Kilgore filed an amended application on May 4, 2006. Finding that Kilgore had failed to provide all of the requested information about his state court proceedings, the magistrate issued an order to show cause why the amended application should not be denied. Specifically, the magistrate found that Kilgore had omitted the dates on which his postconviction motions had been filed, the dispositions and dates of disposition of his proceedings in the trial and appellate courts, and the disposition and date of disposition on certiorari to the Colorado Supreme Court. According to the magistrate, without this information the court could not determine whether the state postconviction proceedings had tolled AEDPA's one-year statute of limitations such that Kilgore's amended § 2254 application was timely.1 See § 2244(d)(2) (providing that the time during which state postconviction or collateral review is pending shall not count toward the one-year period of limitation).

After receiving three extensions of time to respond to the show cause order, Kilgore filed a response. Although he offered more information about his prior state court proceedings, he did not provide all the information requested by the court. Kilgore stated that he had attempted to obtain the necessary documents from the relevant state courts but had not yet received them. He also provided several dates that differed from those asserted in his previous applications, and he no longer referenced two of his four postconviction motions.

After reviewing Kilgore's response to the show cause order, the district court dismissed the amended application without prejudice for failure to comply with the magistrate's two earlier orders. In so doing, the court made no findings with respect to the actual timeliness of the petition under AEDPA's one-year statute of limitations. Moreover, prior to entering its order of dismissal, the court never ordered a response to the petition from the state, and the state never filed an answer. Following dismissal of his petition, Kilgore filed a notice of appeal in this court, and we issued a COA to address the propriety of the district court's dismissal.

II

We review the district court's dismissal of Kilgore's petition for failure to comply with a court order for an abuse of discretion. Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.2003). A district court abuses its discretion when its decision is "based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment."2 Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.1995).

Kilgore argues that the district court committed legal error in placing the burden of pleading timeliness on him. He contends that the timeliness of his § 2254 application is an affirmative defense and that under Jones, which addressed pleading requirements for 42 U.S.C. § 1983 claims brought by prisoners subject to the Prison Litigation Reform Act ("PLRA"), such defenses must be raised and proven by the government. The state counters that Jones is inapplicable to habeas petitions, and that in the context of habeas, there are exceptions to the rules for raising affirmative defenses. Specifically, it asserts that the Rules Governing § 2254 Cases ("§ 2254 Rules") implicitly place the burden of pleading timeliness on the petitioner.

A

As the Supreme Court recognized in Day v. McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006), the timeliness of a § 2254 petition is an affirmative defense. As a general rule in civil cases, affirmative defenses, such as the relevant statute of limitations, must be raised by the respondent in its answer or they are forfeited. See Fed.R.Civ.P. 8(c), 12(b), & 15(a); see also Day, 547 U.S. at 202, 126 S.Ct. 1675 ("Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant's answer or in an amendment thereto. And we would count it an abuse of discretion to override a State's deliberate waiver of a limitations defense." (citation omitted)).

In the usual civil case, this general rule would govern. But AEDPA provides for exceptions to the Federal Rules of Civil Procedure, and the state contends that these provisions require a petitioner to show that his application is timely. Our review of this issue is informed by Jones, in which the Supreme Court considered a similar question of heightened pleading burdens under the PLRA.

In Jones, the Supreme Court overruled the Sixth Circuit's requirement that a prisoner alleging a § 1983 claim must demonstrate in his initial complaint that he has exhausted his administrative remedies under the PLRA. 127 S.Ct. at 914. In doing so, it rejected arguments that the circuit's rule was justified by specific provisions of the PLRA, as well as the general policy behind the statute. Id. at 919-22. The Court held that although the PLRA provides for initial judicial screening of prisoner actions and sua sponte dismissal on the basis of some affirmative defenses, the statute does not alter the normally applicable rules of civil procedure with respect to the issue of exhaustion. Id. at 919-20. Moreover, the Court refused to entertain the argument that the Sixth Circuit's requirement was necessary to effectuate the purposes of the PLRA, reaffirming "that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns." Id. at 919. In other words, Jones holds that the Federal Rules are to be followed in civil cases, absent some express indication to the contrary in the governing statute.

The state contends that Jones dealt primarily with § 1983 cases, and does not apply in the context of the special statutory scheme governing habeas cases. According to the state, AEDPA and the § 2254 Rules specifically place the burden of pleading on the petitioner. Although we agree that Jones does not directly control our determination, we find its reasoning helpful in evaluating whether the habeas statute places the burden of pleading timeliness on the petitioner.

B

In reviewing AEDPA, we find nothing that explicitly places the burden of pleading timeliness on the petitioner or permits sua sponte dismissal for that reason. Although both AEDPA and the PLRA provide for preliminary judicial screening of habeas petitions, AEDPA does not enumerate the specific circumstances under which a petition is subject to sua sponte dismissal. It sets forth only a general screening scheme, requiring that a court reviewing a petition for a writ of habeas corpus "shall forthwith award the writ or issue an order directing respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243 (emphasis added). More specifically, Rule 4 of the § 2254 Rules instructs a district court to conduct a preliminary review of a state habeas petition and dismiss it "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." In addition, Rule 11 of the § 2254 Rules provides that "[t]he Federal Rules of Civil Procedure, to the extent that they are not...

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