Stephen M. Nardi v. Terry Stewart, Director

Petitioner Stephen Nardi (Nardi) appeals from the district court’s dismissal of his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on statute of limitations grounds. Nardi obtained a Certificate of Appealability (COA) limited to whether he had demonstrated an impediment to timely filing his petition or grounds for equitably tolling the statute of limitations. We expand the COA to in-elude review of the district court’s decision sua sponte to dismiss Nardi’s petition as time-barred after Respondent failed to assert a statute of limitations defense in its answer. Because Respondent waived the statute of limitations, we reverse the district court and remand for consideration of the petition on the merits.

I.

On July 2, 1991, a jury found Nardi guilty of first degree murder and attempted first degree murder. The court sentenced Nardi to life without release until completion of twenty-five years for murder and to seven years for attempted murder (to be served consecutively). The Arizona Court of Appeals affirmed Nardi’s convictions and sentences.

On April 14, 1999, Nardi filed a petition for post-conviction relief. The trial court denied the petition on…