Kilgore v. Estep, 10th Cir. Mar. 11, 2008
07-1014 Kilgore v. Estep
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, 127 S. Ct. 910 (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. … Kilgore v. Estep.
