                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4098
                        ___________________________

                               Frank Allen Williams

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                      Darin Young, Warden; Marty Jackley

                      lllllllllllllllllllllRespondents - Appellees
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                            Submitted: January 16, 2018
                              Filed: January 29, 2018
                                   [Unpublished]
                                  ____________

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
                         ____________

PER CURIAM.

      Frank Williams appeals the district court’s order that dismissed his 28 U.S.C.
§ 2254 petition due to procedural default. Upon de novo review, this court reverses
and remands for further proceedings.
       The state court granted habeas relief to Williams and vacated his 50-year prison
sentence. After the court reimposed the 50-year sentence, Williams appealed, arguing
that the sentence violated the Eighth Amendment’s cruel-and-unusual-punishment
clause; the South Dakota Supreme Court summarily affirmed. Williams then filed a
state habeas petition claiming counsel was ineffective; relief was denied, and
Williams did not appeal.

       In his section 2254 petition, Williams claimed his sentence was cruel and
unusual punishment in violation of the Eighth Amendment, and counsel was
ineffective in several instances. The State argued only that the petition was untimely,
and the magistrate judge recommended dismissal on that basis. The district court
found the petition was timely, but sua sponte dismissed the petition on the basis of
procedural default. This court granted a certificate of appealability as to whether the
ineffective-assistance and Eighth Amendment claims were procedurally defaulted.

       Upon careful de novo review, this court finds that the district court should have
given the parties fair notice and an opportunity to present their positions on
procedural default before dismissing on that basis. See Dansby v. Hobbs, 766 F.3d
809, 824 (8th Cir. 2014) (remanding claim dismissed based on procedural default
where parties were not afforded adequate notice and opportunity to be heard on
procedural-default question); Frasier v. Maschner, 304 F.3d 815, 817 (8th Cir. 2002)
(standard of review). See generally Garrison v. Burt, 637 F.3d 849, 853 (8th Cir.
2011) (petitioner who raises constitutional claim on full round of direct review need
not also avail himself of post-conviction process to satisfy exhaustion requirement for
that claim).

       Accordingly, this court vacates the judgment, and remands to the district court
for further proceedings. Counsel’s motion to withdraw is granted.
                       ______________________________



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