                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-1643
                                    ___________

Earnest Coppage,                         *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
Don Redman,                              *
                                         *     [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                              Submitted: June 7, 2011
                                 Filed: July 5, 2011
                                  ___________

Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

      North Dakota prisoner Earnest Coppage appeals following the pre-service
dismissal of his habeas petition as barred by the statute of limitations. The matter is
before this court on his request for a certificate of appealability. We grant Coppage’s
request, vacate the dismissal, and remand this case to the district court.

       To begin, we note that Coppage’s petition, which was styled as a 28 U.S.C.
§ 2241 petition, was properly treated as a 28 U.S.C. § 2254 petition. See Crouch v.
Norris, 251 F.3d 720, 723 (8th Cir. 2001) (person in custody pursuant to the judgment
of state court can obtain habeas relief only through § 2254, no matter how pleadings
are styled; rejecting state prisoner’s contention that his petition should be classified
as § 2241 petition not subject to limitations of 28 U.S.C. § 2244). While a district
court may sua sponte consider the timeliness of a section 2254 petition, the statute-of-
limitations defense remains a non-jurisdictional affirmative defense that a state may
waive. See Day v. McDonough, 547 U.S. 198, 205, 209, 211 n.11 (2006) (statute-of-
limitations defense is not jurisdictional, hence courts are under no obligation to
consider time bar sua sponte; district courts are permitted, but not obliged, 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 Coppage’s petition as untimely prior to service on the
State. See id. at 207 n.6, 210 (district courts are hardly ever positioned to raise
§ 2244’s time bar sua sponte under Rule 4 of the Rules Governing Section 2254
Cases, because information essential to time calculation is often absent until state has
filed, along with its answer, copies of documents from state-court proceedings; before
acting on its own initiative, court must accord parties fair notice and opportunity to
present their positions).

      Accordingly, we grant Coppage 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 State.
                       ______________________________




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