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
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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
1Kiser 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.

2The 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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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
3Although 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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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
4This 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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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
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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.