            Case: 19-11659   Date Filed: 04/03/2020   Page: 1 of 6



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11659
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:18-cv-24945-DPG



FELIX ANTONIO SILVA-MARTINEZ,

                                                          Petitioner-Appellant,

                                  versus

FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                       Respondents-Appellees.

                       ________________________

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

                              (April 3, 2020)

Before JORDAN, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
               Case: 19-11659     Date Filed: 04/03/2020    Page: 2 of 6



      Felix Silva-Martinez, a Florida prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his 28 U.S.C. § 2254 petition as untimely filed. We

granted a certificate of appealability (“COA”) on whether the district court erred in

sua sponte determining that Mr. Silva-Martinez’s § 2254 petition was time-barred

without first ordering the state to respond to the petition. On appeal, he argues that,

under our now-superseded opinion in Paez v. Sec’y, Fla. Dep’t of Corr., 931 F.3d

1304 (11th Cir. 2019) (“Paez I”), the district court abused its discretion by sua sponte

dismissing his § 2254 petition without first ordering the State to respond.

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

of discretion. Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 651 (11th Cir. 2020)

(“Paez II”). We also review for abuse of discretion a court’s decision to sua sponte

raise a statute of limitations issue. Day v. McDonough, 547 U.S. 198, 202 (2006).

Pro se pleadings are held to a less stringent standard than counseled pleadings and,

therefore, are liberally construed. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998). Issues not briefed on appeal are deemed abandoned. Sapuppo

v. Allstate Fla. Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

      In Paez, a Florida state prisoner filed a § 2254 petition and the state was not

ordered to respond. Paez II, 947 F.3d at 650-51. A magistrate judge took judicial

notice of the filing dates of the petitioner’s post-conviction motions and the dates of

the orders resolving those motions, as reflected in the electronic state court dockets


                                           2
               Case: 19-11659     Date Filed: 04/03/2020    Page: 3 of 6



for the petitioner’s criminal cases. Id. at 651. The dockets were available online but

were never made part of the record. Id. In a report and recommendation (“R&R”),

the magistrate judge recommended sua sponte dismissing the § 2254 petition as

time-barred and, over the petitioner’s objections, the district court adopted the

magistrate judge’s recommendation. Id. We granted the petitioner a COA on the

issue of whether the district court erred in dismissing his petition as untimely. Id.

      On appeal, we considered two issues: (1) whether the district court could

properly take judicial notice of the electronic state court dockets in the petitioner’s

criminal cases; and (2) whether it was error to dismiss the petitioner’s § 2254 petition

as untimely without ordering the state to respond. Id. As to the first issue, we

explained that the dates that the district court noticed from the electronic state court

dockets constituted judicially noticed facts under Fed. R. Evid. 201, and we had no

reason to think that the dockets did not accurately reflect the relevant dates in the

petitioner’s cases. Id. at 651-52. We warned, however, that taking judicial notice is

a “highly limited process” and, although Rule 201 does not require the court to warn

the parties before taking judicial notice, it does require, upon the party’s request, an

opportunity to be heard after the court takes notice. Id. at 652-53. We concluded

that, because the petitioner had an opportunity to object to the magistrate judge’s

recommendation after the magistrate judge took judicial notice of the dates from the

state court dockets, and the petitioner did not dispute the accuracy of the dockets or


                                           3
                  Case: 19-11659        Date Filed: 04/03/2020         Page: 4 of 6



indicate that he was unable to do so, the district court had not abused its discretion

by taking judicial notice. Id. at 653.

       Turning to the second issue, we held that the district court did not abuse its

discretion by sua sponte dismissing the petitioner’s § 2254 petition after giving him

notice of its decision and an opportunity to be heard. Id. We reasoned that the text

of Rule 4 of the Rules Governing § 2254 Proceedings1 and the accompanying

advisory committee notes did not restrict summary dismissals to merits-based

deficiencies and gave district courts the authority to screen § 2254 petitions to

eliminate the burden on the state of having to respond to frivolous applications. Id.

at 654. This holding, we explained, also aligned with Day, in which the Supreme

Court held that a district court may act on its own initiative to dismiss a petition as

untimely, provided that the court gives the parties fair notice and an opportunity to

be heard.      Id. at 654-55.        Accordingly, because the petitioner was given an

opportunity to explain why his petition was timely, and the state was notified of the

court’s action but neither contested the petition’s timeliness nor waived the

limitations defense, we held that the district court did not abuse its discretion in

dismissing the petition. Id. at 655.




       1
          “If 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 and direct the clerk to
notify the petitioner.” Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. If the
petition is not dismissed, the judge must order the respondent to answer. See id.
                                                   4
                  Case: 19-11659   Date Filed: 04/03/2020    Page: 5 of 6




       Given our decision in Paez II, we conclude that the district court did not abuse

its discretion.

       First, the district court did not abuse its discretion by taking judicial notice of

the electronic state court records. Paez II, 947 F.3d at 651. Although we instructed

in Paez II that a court should use caution in this regard, here, the district court here

followed the proper safeguards. The magistrate judge made the electronic state court

records part of the district court record, and Mr. Silva-Martinez never alleged that

he did not receive copies of those records. See id. at 652-53. Mr. Silva-Martinez

also had the opportunity to object to the R&R, including the magistrate judge’s

decision to take judicial notice of the electronic state court records. See id. at 653.

And although he filed objections, he did not dispute the accuracy of the electronic

state court records or the dates the magistrate judge used, and he did not otherwise

ask to be heard on the judicial notice issue. See id. Accordingly, the district court

did not abuse its discretion by taking judicial notice of the electronic state court

records.

       Second, the district court also did not abuse its discretion by sua sponte

dismissing Mr. Silva-Martinez’s § 2254 petition as untimely without requiring a

response from the state. Mr. Silva-Martinez was provided ample notice and an

opportunity to explain why his petition was timely, both in the petition itself and


                                            5
              Case: 19-11659     Date Filed: 04/03/2020    Page: 6 of 6



again when he was given the chance to respond to the R&R. See id. at 655. And

Mr. Silva-Martinez took that opportunity, objecting to the magistrate judge’s

determination on timeliness and arguing that his petition was timely. See id. Further,

the state was sent copies of both the R&R and Mr. Silva-Martinez’s objections and

had an opportunity to respond, including waiving the limitations defense altogether,

if it so chose. See id. Nonetheless, the state did not respond and has never indicated

a desire to waive the limitations defense.

      AFFIRMED.




                                             6
