     Case: 11-60761     Document: 00512020057         Page: 1     Date Filed: 10/15/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 15, 2012
                                     No. 11-60761
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ANNETTE M. PIERCE, also known as Norma Lisa Thiem, also known as Myrtis
Annette Thiem,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:09-CV-43
                              USDC No. 5:05-CR-6-2


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Annette M. Pierce, federal prisoner # 93177-071, was convicted by a jury
of kidnaping (18 U.S.C. § 1201(a)) and carjacking (18 U.S.C. § 2119) and was
sentenced to 110 months of imprisonment on both counts to run concurrently
and five years and three years of supervised release, also concurrent. She
appeals the district court’s dismissal of her 28 U.S.C. § 2255 motion as time
barred.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60761

      We granted a certificate of appealability on the issue “[w]hether the
district court abused its discretion in not considering whether the Government
had waived the statute of limitations defense.” The Government filed a response
clarifying that “it is the intent of the government to make clear that it explicitly
waives any statute of limitations defense to the 28 U.S.C. § 2255 motion brought
by Pierce and that she be allowed to pursue an out of time appeal.” Based on
this response, Pierce argues that this court should grant her an out of time
appeal because the district court erred in disregarding the Government’s waiver
of the statute of limitations defense. The Government concurs, arguing that the
district court abused its discretion in disregarding its waiver of the statute of
limitations defense.
      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year limitation period for a federal prisoner to file a § 2255
motion. § 2255(f). Untimeliness under the AEDPA is not a jurisdictional defect;
however, it is an affirmative defense that the Government may waive. Day v.
McDonough, 547 U.S. 198, 205, 210 n.11 (2006). If the Government chooses to
waive the defense, the district court is “not . . . at liberty to disregard that
choice.” Id. at 210 n.11. Reaffirming its decision in Day, the Supreme Court
stated: “A court is not at liberty, we have cautioned, to bypass, override, or
excuse a State’s deliberate waiver of a limitations defense.” Wood v. Milyard,
132 S. Ct. 1826, 1830 (2012).
      The Government responded more than once that it did not oppose the
granting of Pierce’s § 2255 motion for purposes of authorizing an out of time
direct criminal appeal and specifically stated that she had timely filed her § 2255
motion. Pierce argued in the district court that the Government’s responses
constituted a waiver of the statute of limitations defense. The district court did
not consider her argument. The Government’s responses, as the Government
has now made explicitly clear, could and should have been construed as a
deliberate waiver of the statute of limitations defense which the district court

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                                  No. 11-60761

was not at liberty to disregard. It was an abuse of discretion for the district
court to override the Government’s deliberate waiver of the limitations defense.
See Day, 547 U.S. at 202; see also Wood, 132 S. Ct. at 1834 (holding that circuit
court abused its discretion in dismissing habeas corpus petition as untimely
where State twice stated that it would not challenge but did not concede
timeliness of the petition).
      Pierce asks this court to grant her an out of time appeal. She argues that
there are no disputed facts concerning the merits of her claim that counsel was
ineffective for failing to file her notice of appeal and that this court can decide
that she is entitled to an out of time appeal. The district court did not reach the
merits of Pierce’s § 2255 motion, having dismissed it as time barred. We
therefore VACATE the dismissal of Pierce’s § 2255 motion and REMAND for
further proceedings.
      VACATED AND REMANDED.




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