                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-2132
                                    ___________

Ramon Martinez, also known as            *
Razor,                                   *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
United States of America,                *
                                         *          [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                              Submitted: August 1, 2011
                                  Filed: August 4, 2011
                                  ___________

Before MELLOY, ARNOLD, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

       Federal prisoner Ramon Martinez appeals following the pre-service dismissal
of his 28 U.S.C. § 2255 action as barred by the statute of limitations. The matter is
before this court on his request for a certificate of appealability. We grant Martinez’s
request, vacate the dismissal, and remand this case to the district court.

      While a district court may sua sponte consider the timeliness of a section 2255
motion, the statute-of-limitations defense remains a non-jurisdictional affirmative
defense that the government may waive. Cf. Day v. McDonough, 547 U.S. 198, 205,
209, 211 n.11 (2006) (because statute-of-limitations defense is not jurisdictional,
courts are not obligated to consider time bar sua sponte; district courts are permitted
to consider, sua sponte, timeliness of state prisoner’s habeas petition; should state
intelligently choose to waive statute-of-limitations defense, district court would not
be at liberty to disregard that choice). Upon careful consideration, we conclude that
the district court should not have dismissed this action as untimely prior to service on
the government and without giving Martinez an opportunity to present his position.
See id. at 207 n.6, 210 (before acting on its own initiative, court must accord parties
fair notice and opportunity to present their positions).

       Accordingly, we grant Martinez a certificate of appealability, we vacate the
dismissal, and we remand this case to the district court with instructions to proceed
with service on the government. We express no opinion on whether Martinez is
entitled to relief from the statute of limitations, on equitable tolling grounds or
otherwise, should the government decide to assert the statute as a defense.
                       ______________________________




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