                Case: 18-11095     Date Filed: 11/26/2019   Page: 1 of 3


                                                                [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 18-11095
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 0:17-cv-62447-FAM



EDDIE MONTERO,

                                                    Petitioner - Appellant,

versus

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

                                                    Respondents - Appellees.

                             ________________________

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

                                 (November 26, 2019)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

         Eddie Montero, a Florida prisoner proceeding pro se, appeals the dismissal of
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his 28 U.S.C. § 2254 petition challenging his conviction and sentence. For the

following reasons, we reverse and remand for further proceedings.

      On December 12, 2017, Mr. Montero filed his § 2254 petition. On December

27, 2017, the magistrate judge entered a report recommending that the petition be

dismissed sua sponte. The magistrate judge had reviewed Mr. Montero’s state court

docket and taken judicial notice of the records therein. Based on the procedural

history established by those records, the magistrate judge concluded that Mr.

Montero’s petition was untimely. Mr. Montero filed objections to the report on

February 5, 2018, arguing that the report had not used the dates of relevant events to

calculate the timeliness of his petition. Without requiring a response from the state,

the district court overruled Mr. Montero’s objections, adopted the magistrate judge’s

report, and sua sponte dismissed the petition on February 16, 2018. The district

court also declined to issue a certificate of appealability.

      Mr. Montero timely appealed, seeking a COA and in forma pauperis status.

We granted a COA as to the following issue:

             Whether the district court erred in sua sponte determining
             that [Mr.] Montero’s 28 U.S.C. § 2254 petition was time-
             barred without reviewing the complete, official state court
             record?

      In a recent decision, we addressed whether a district court could “on its own

initiative and without hearing from the State, decide that the statute of limitations

bars the petition.” Paez v. Sec’y, Fla. Dep’t of Corr., 931 F.3d 1304, 1305 (11th Cir.
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2019). We answered in the negative, explaining that “[w]hen a § 2254 petition states

a legally sufficient claim for relief, a district court must order the State to respond,

even if the petition appears untimely.” Id. District courts, though they may be free

to direct specific types of responses, “are without discretion to dispense with any

response altogether.” Id.

        Based on Paez, we reverse the dismissal of Mr. Montero’s habeas petition.

Our ruling does not prevent the state from raising timeliness issues in a responsive

filing. It merely prevents the district court from expanding the scope of Rule 4 of

the Rules Governing Section 2254 Proceedings to summarily dismiss petitions

which are facially sufficient. See generally id.

        Given Paez, we conclude that the district court acted within its discretion in

taking judicial notice of Mr. Montero’s state court docket but erred in sua sponte

dismissing the petition without obtaining a response from the state. Accordingly,

we reverse the order of dismissal and remand for further proceedings consistent with

Paez.

        REVERSED AND REMANDED.




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