Patel

MEMORANDUM **

Jijibhoy J. Patel and Silloo J. Patel appeal pro se the district court’s sua sponte dismissal of their 28 U.S.C. § 2255 motion challenging their jury trial conviction for two counts of attempted income tax evasion, in violation of 26 U.S.C. § 7201 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we reverse and remand.

We granted a certificate of appealability as to the issue of whether the district court erred for sua sponte dismissing the Patels’ 28 U.S.C. § 2255 motion as time-barred. We review de novo the dismissal of a § 2255 motion on statute of limitations grounds. See Herbst v. Cook, 260 F.3d 1039,1042 (9th Cir.2001).

The district court may sua sponte dismiss a § 2255 motion on statute of limitations grounds. Id. at 1042; cf. United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.2000) (stating that the statute of limitations period for § 2254 petitions and § 2255 motions is not treated differently). However, before dismissing, the district court must first give adequate notice and an opportunity to respond. Id. at 1043. Review of the record demonstrates that the Patels were neither given notice, nor the opportunity to respond prior to…