                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 15a0218p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


 MICHAEL J. SHELTON,                                       ┐
                                 Petitioner-Appellant,     │
                                                           │
                                                           │      No. 14-5565
         v.                                                │
                                                            >
                                                           │
 UNITED STATES OF AMERICA,                                 │
                                 Respondent-Appellee.      │
                                                           ┘
                          Appeal from the United States District Court
                      for the Eastern District of Tennessee at Chattanooga
          Nos. 1:05-cr-00097; 1:13-cv-00340—Curtis L. Collier, Chief District Judge.
                              Decided and Filed: September 2, 2015

              Before: BOGGS, SUHRHEINRICH, and SUTTON, Circuit Judges.

                                        _________________

                                            COUNSEL

ON BRIEF: Christopher D. Poole, UNITED STATES ATTORNEY’S OFFICE, Chattanooga,
Tennessee, for Appellee. Michael J. Shelton, Beaumont, Texas, pro se.

                                        _________________

                                             OPINION
                                        _________________

       SUTTON, Circuit Judge. In 2006, Michael J. Shelton pleaded guilty to one count of
being a felon in possession of a firearm. His conviction became final in 2009, and four years
later he filed a motion to vacate his sentence. See 28 U.S.C. § 2255. Without notifying Shelton
or asking him to show cause, the district court on its own initiative dismissed the motion as
untimely. Because the court should have given Shelton notice before dismissing his motion, we
vacate the district court’s judgment.




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No. 14-5565                             Shelton v. United States                  Page 2

       Shelton’s conviction and sentence became final on February 23, 2009, when the Supreme
Court denied his petition for certiorari. He filed a § 2255 motion on September 22, 2013,
alleging that Descamps v. United States, 133 S. Ct. 2276 (2013), made his sentence invalid. The
government did not file a response. In February 2014, the district court dismissed the motion as
untimely under Rule 4(b) of the Rules Governing Section 2255 Proceedings. We issued a
certificate of appealability to determine whether the district court erred in dismissing the motion
without giving Shelton notice.

       The analysis starts with Day v. McDonough, 547 U.S. 198 (2006). Day held that district
courts may “consider, sua sponte, the timeliness of a state prisoner’s habeas petition,” id. at 209,
even when the government has failed to raise a timeliness defense in its response, id. at 203–04.
Before acting on its own initiative, however, the district court “must accord the parties fair notice
and an opportunity to present their positions.” Id. at 210.

       The question is whether Day’s notice requirement applies here, a setting that differs from
Day in two ways. Because Shelton’s conviction occurred in federal court, he filed a motion to
vacate his sentence under § 2255, not a petition for habeas relief under § 2254. And in Day, the
district court dismissed the petition after the government had forfeited its timeliness defense by
failing to raise that argument in its response. Id. at 203–04. Here, the district court dismissed
Shelton’s motion at the Rule 4(b) “screening” stage of the § 2255 proceedings, before the
government had filed any response at all. Rules Governing Section 2255 Proceedings for the
United States District Courts Rule 4(b).       Several district courts have suggested that these
distinctions make a difference and that district judges need not provide notice under these
conditions. See, e.g., Kimble v. Gansheimer, No. 4:10 CV 2115, 2010 WL 4901789, at *1 n.2
(N.D. Ohio Nov. 23, 2010); United States v. Taylor, No. CIV-97-1821-R, 2008 WL 1787645, at
*2 (W.D. Okla. Apr. 17, 2008).

       In our view, Day’s notice requirement applies nonetheless. It thus applies (1) to § 2254
petitions and § 2255 motions and (2) to sua sponte dismissals that occur during the Rule 4
screening process. As for the first point, the statutes of limitations applicable to § 2254 and
§ 2255 use “virtually identical” language, Ramos-Martinez v. United States, 638 F.3d 315, 321
(1st Cir. 2011); see also Souter v. Jones, 395 F.3d 577, 597 n.12 (6th Cir. 2005), leaving no
No. 14-5565                             Shelton v. United States                  Page 3

textual handhold for requiring notice for state prisoners but not federal prisoners. Compare
28 U.S.C. § 2244(d), with 28 U.S.C. § 2255(f). Day also adopted a notice requirement to give
habeas petitioners “a fair opportunity to show why the limitation period should not yield
dismissal of the petition,” 547 U.S. at 210—a rationale that applies with equal force to § 2255
cases. For similar reasons, we have applied Day’s holding in the § 2255 context before, Taylor
v. United States, 518 F. App’x 348, 349 (6th Cir. 2013), and the Eighth Circuit has done the
same, Martinez v. United States, 423 F. App’x 650, 650 (8th Cir. 2011); cf. United States v.
DeClerck, 252 F. App’x 220, 224 (10th Cir. 2007) (dicta).

       Day’s notice requirement also applies at the Rule 4 screening stage. In support of its
decision, Day cited two cases, both of which arose when a district court denied a petition at the
screening stage. See McMillan v. Jarvis, 332 F.3d 244, 246, 250 (4th Cir. 2003); Acosta v. Artuz,
221 F.3d 117, 120–21, 123–25 (2d Cir. 2000). When faced with a similar situation in the § 2254
context, we have said that judges must give notice to habeas petitioners—though in dicta. Torres
v. Davis, 416 F. App’x 480, 482–83 (6th Cir. 2011); Wade v. Webb, 83 F. App’x 703, 704 (6th
Cir. 2003). Other courts have reached the same conclusion in § 2254 and § 2255 cases—in
holdings. United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc); Herbst v.
Cook, 260 F.3d 1039, 1043–44 (9th Cir. 2001); Martinez, 423 F. App’x at 650.

       In outlining the screening procedure for these motions, Rule 4(b) of the Rules Governing
Section 2255 Proceedings says nothing to the contrary. “If it plainly appears,” the Rule says,
“from the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the
moving party.” Rules Governing Section 2255 Proceedings for the United States District Courts
Rule 4(b). Although screening is designed to expedite the process, Rule 4(b) does not discuss
(and, more to the point, does not preclude) a notice requirement.            Not only is a notice
requirement compatible with the rule, it also promotes accuracy at the screening stage, especially
when a court considers dismissal on timeliness grounds. The § 2255 statute of limitations is
subject to equitable tolling. See Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013).
That means courts cannot assess a motion’s timeliness merely by subtracting the date of filing
from the date when the conviction became final. See Day, 547 U.S. at 207 n.6. A notice
No. 14-5565                              Shelton v. United States                  Page 4

requirement gives petitioners the opportunity to bring essential information not evident from the
face of the motion to the court’s attention, including the possibility that equitable tolling applies.

       The government maintains that Shelton was already on notice that his motion might be
untimely, because he “argued that Descamps created a new rule that is retroactively applicable to
[his] case”—an argument relevant to timeliness under § 2255(f)(3). Appellee’s Br. 13. But the
key portion of Shelton’s memorandum does not cite § 2255(f).               Nor does it mention the
timeliness issue. The district court not only relied on § 2255(f)(3) in dismissing the motion,
moreover, but it also relied on Shelton’s failure to demonstrate equitable tolling. Shelton v.
United States, No. 1:13-cv-340, 2014 WL 460868, at *2–3 & n.3 (E.D. Tenn. Feb. 5, 2014).
Shelton’s memorandum never addressed that issue, and the sua sponte dismissal left him with no
opportunity to challenge the arguments that the district court invoked in finding the motion
untimely.

       The government adds that any error was harmless because Shelton has had an
opportunity to present his timeliness arguments on appeal. That opportunity, however, does not
cure the lack of notice before the district court. Morrison v. Tomano, 755 F.2d 515, 516–17 (6th
Cir. 1985), for example, held that a district court erred when it sua sponte dismissed a complaint
without providing notice to the plaintiffs. Although the plaintiffs had an opportunity to contest
the dismissal on appeal, we remanded the case to the district court to permit it to consider the
parties’ arguments in the first instance. Id. at 517; see also Chase Bank USA, N.A. v. City of
Cleveland, 695 F.3d 548, 558 (6th Cir. 2012); Herbst, 260 F.3d at 1043. The two unpublished
cases cited by the government do not aid its cause. Reichert v. United States, 101 F. App’x 13,
14 (6th Cir. 2004), held that the petitioner had received notice because he presented his
timeliness arguments in a motion for reconsideration, and Wogoman v. Abramajtys, 243 F.
App’x 885, 886–87, 890 n.4 (6th Cir. 2007), held that the petitioner had received notice because
he objected to the magistrate judge’s timeliness ruling before the district court entered its
judgment. Shelton did not file a motion to reconsider, and nothing in Day suggests that this
option, even when unexercised, cures a notice defect. See 547 U.S. at 210–11. And in this
instance, Shelton never had an opportunity to object to a magistrate judge’s recommendations
No. 14-5565                            Shelton v. United States               Page 5

because none were ever given. Shelton, in short, never presented his timeliness arguments to the
district court.

        For these reasons, we vacate the district court’s judgment and remand for further
proceedings consistent with this opinion.
