               Case: 17-15753     Date Filed: 02/14/2020    Page: 1 of 4


                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 17-15753
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 9:17-cv-81108-WPD

TELLY KAVANTZAS,

                                                                 Petitioner-Appellant,

                                        versus

STATE OF FLORIDA,

                                                                Respondent-Appellee.

                            ________________________

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

                                 (February 14, 2020)

Before GRANT, TJOFLAT and MARCUS, Circuit Judges.

PER CURIAM:

      Telly Kavantzas, a Florida prisoner, appeals the district court’s sua sponte

dismissal of his 28 U.S.C. § 2254 petition. He argues that: (1) the district court erred

in dismissing his petition as untimely by taking judicial notice of his state court
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criminal proceedings and post-conviction filings and by not first requiring a response

from the state; and (2) the district court erred in its alternative sua sponte denial of

his petition, which determined that Grounds One and Two of his petition were

unexhausted and Grounds Three and Four failed on the merits, without requiring the

state to respond. After careful review, we affirm.

      We review for abuse of discretion a district court’s decision to take judicial

notice of a fact and its decision to sua sponte raise the statute of limitations. Paez v.

Sec’y, Fla. Dep’t of Corr., 2020 WL 63290 at *2, __ F.3d __ (11th Cir. Jan. 7, 2020).

Federal Rule of Evidence 201 permits a court to “judicially notice a fact that is not

subject to reasonable dispute.” Fed. R. Evid. 201(b). “State court records of an

inmate’s postconviction proceedings generally satisfy this standard.” Paez, 2020

WL 63290 at *2. Taking judicial notice of facts is, however, a “highly limited

process” that must be done with caution because it bypasses safeguards provided by

presenting facts through evidence. Id. at *3. In the context of determining the

timeliness of § 2254 petitions, we’ve recommended that the district court include

copies of any judicially noticed records as part of the order relying on them. Id.

      Habeas Rule 4 provides that, “[i]f it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court, the

judge must dismiss the petition.” Rules Governing § 2254 Cases, Rule 4. In these




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instances, the petition is legally insufficient on its face, the district court must

dismiss it, and can do so without ordering the state to respond. Id.

      In our now-vacated decision in Paez v. Sec’y, Fla. Dep’t of Corr., 931 F.3d

1304, opinion vacated by 944 F.3d 1327 (11th Cir. 2019), we determined that dates

from online state court dockets were judicially noticeable facts under Rule 201 and

that proper safeguards had been followed because the petitioner had an opportunity

to be heard after the court took judicial notice. Id. at 1307. We held, therefore, that

the district court had not abused its discretion by taking judicial notice of the docket

entries. Id. We further held, however, that the district court had abused its discretion

when it dismissed the petition as untimely without ordering any response from the

state. Id. at 1311. But after vacating that opinion, we replaced it with a new one. In

the new opinion, we affirmed the district court decision in its entirety, holding that

the district court could both (1) take judicial notice of the state court docket, and (2)

sua sponte dismiss the petition as untimely without ordering the state to respond.

Paez, 2020 WL 63290 at *2-*5.

      In this case, as in Paez, the district court did not abuse its discretion by taking

judicial notice of Kavantzas’ electronic state court dockets. Although courts should

use caution in this respect, the district court here followed the proper procedural

safeguards -- the magistrate judge made the electronic dockets on which he relied

part of the record, and Kavantzas never alleged that he did not receive those dockets.


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See id. at *3. Moreover, before the present appeal, Kavantzas did not object, dispute

the accuracy of the dockets or the dates the magistrate judge used, or otherwise ask

to be heard on the issue of judicial notice. Accordingly, the district court did not

abuse its discretion in taking judicial notice of the electronic state court dockets. See

id.

       Nor did the district court abuse its discretion by sua sponte dismissing

Kavantzas’ § 2254 petition as untimely without requiring a response from the state.

Under Rule 4, the district court could sua sponte dismiss Kavantzas’s petition for a

procedural bar, like untimeliness, because he would not be entitled to relief if his

petition was untimely. See id. at *4. Kavantzas was provided notice and an

opportunity to argue the timeliness of his petition in his form petition and after the

magistrate judge’s Report and Recommendation was issued.                      See id. at *5.

Similarly, the state was notified of both the Report and Recommendation and the

district court’s adoption of it, which meant that the state could have indicated its

intent to assert or waive its timeliness defense. See id. Accordingly, we affirm the

district court’s dismissal of the petition for untimeliness, and need not address the

district court’s dismissal in the alternative.1

       AFFIRMED.



1
  In addition, we DENY the parties’ joint motion to stay further proceedings pending the
issuance of the mandate in Paez.
                                               4
