           Case: 18-11769    Date Filed: 03/10/2020   Page: 1 of 4



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11769
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cv-00009-MSS-AAS


GERSU GUISAO,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 10, 2020)

Before WILLIAM PRYOR, MARTIN and HULL, Circuit Judges.

PER CURIAM:
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      Gersu Guisao, a Florida prisoner, appeals the sua sponte dismissal of his

petition for a writ of habeas corpus as untimely. We issued a certificate of

appealability on the issue whether the district court procedurally erred in sua

sponte dismissing Guisao’s petition as untimely without ordering the State to

respond. We affirm.

      Guisao is serving a life sentence in Florida for sexual battery. After seeking

postconviction relief in state court, he filed a petition for a writ of habeas corpus in

federal court. See 28 U.S.C. § 2254. The district court conducted a preliminary

review of Guisao’s petition, see Rules Governing § 2254 Cases, Rule 4, and

concluded that it was untimely. See 28 U.S.C. § 2244(d). The court ordered Guisao

to show cause why it should not dismiss his petition on that ground and warned

him that it would dismiss his petition if he did not timely respond. See Day v.

McDonough, 547 U.S. 198, 209–10 (2006). Guisao argued that he was entitled to

equitable tolling, see Holland v. Florida, 560 U.S. 631, 645 (2010), and that the

actual-innocence exception to the limitations period applied, see McQuiggin v.

Perkins, 569 U.S. 383, 386 (2013). The court explained that Guisao’s response

failed on both fronts, but it gave him a second opportunity to show that his petition

was timely. It warned him that “[a]n insufficient response, or the failure to

respond, . . . will result in the dismissal of this action without further notice.” The




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court determined that Guisao’s second response was insufficient, so it dismissed

his petition as untimely.

      The only issue on appeal is whether the district court procedurally erred

when it sua sponte dismissed Guisao’s petition as untimely without ordering the

State to respond. We review a district court’s decision to sua sponte raise the

untimeliness of a petition for abuse of discretion. Paez v. Sec’y, Fla. Dep’t of

Corr., 947 F.3d 649, 651 (11th Cir. 2020). After the parties filed their briefs, we

issued a new opinion in Paez. We held that untimely petitions are subject to

dismissal at the screening stage under Rule 4, which requires district courts to

dismiss petitions that are “legally insufficient on [their] face,” if the court provides

the petitioner with notice and an opportunity to be heard. Id. at 653 (internal

quotation marks omitted). We explained that the district court did not abuse its

discretion when it dismissed a petition that it had determined to be untimely

without ordering the State to respond because it provided the petitioner with

“notice of its decision and an opportunity to be heard in opposition.” Id. Because

of Paez’s relevance to this appeal, we ordered the parties to submit supplemental

letter briefs addressing its impact.

      Guisao admits that Paez “eliminate[s] the argument” in his initial brief about

the sua sponte dismissal of his petition because it is plain from the face of his

petition that he filed it “almost a year too late,” and the district court gave him


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notice and an opportunity to be heard in opposition before the dismissal. But he

argues that Paez is distinguishable. Without explaining why, he contends that

because he tried to invoke equitable tolling or the actual-innocence exception, the

court should have ordered the State to respond.

      His attempt to distinguish Paez is unpersuasive. It is clear from the face of

Guisao’s petition and the judicially noticed online docket entries for his state

proceedings, see id. at 652–53, that he filed his petition well beyond the one-year

limitations period. The district court gave him two opportunities to argue to the

contrary, and it warned him that an insufficient response would result in dismissal.

We discern no error in the district court’s ruling that Guisao’s responses failed to

show that his petition was timely. Paez establishes that the district court did not

abuse its discretion, especially because Guisao, not the State, had the burden of

establishing either equitable tolling or the actual-innocence exception and

possessed the necessary information. See McQuiggin, 569 U.S. at 386; Holland,

560 U.S. at 649.

      We AFFIRM the sua sponte dismissal of Guisao’s petition as untimely.




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