                Case: 16-15705       Date Filed: 01/07/2020        Page: 1 of 13


                                                                                    [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                             FOR THE ELEVENTH CIRCUIT

                               ________________________

                                     No. 16-15705
                               ________________________

                           D.C. Docket No. 2:16-cv-14259-RLR


ROLANDO GUS PAEZ,

                                                                          Petitioner-Appellant,
                                             versus



SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
                                                                        Respondent-Appellee.
                               ________________________

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

                                       (January 7, 2020)
Before MARTIN, TJOFLAT, and TRAXLER,* Circuit Judges.

PER CURIAM:



       *
          Honorable William B. Traxler, Jr., United States Circuit Judge for the Fourth Circuit,
sitting by designation.
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      We publish this opinion in place of our July 31, 2019 opinion, which was

vacated by order of the Court on December 23, 2019.

      Rolando Gus Paez is a state inmate who filed a petition under 28 U.S.C.

§ 2254 for a writ of habeas corpus that looks to be untimely. His case presents the

question of whether in this circumstance a district court may, on its own initiative

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

petition. This District Court did just that, and dismissed the petition filed by Mr.

Paez without ordering a response from the Secretary of the Florida Department of

Corrections.

      After oral argument and careful consideration, we affirm the District Court.

                                            I.

      In 2004, Mr. Paez pled no contest to second degree murder and two cocaine

charges in St. Lucie County (Florida) Circuit Court. The state court sentenced him

to four years imprisonment followed by two years of “community control.” In

2010, while still on community control, Mr. Paez was arrested for violating the

terms of his supervised release. In response, the state court revoked his community

control and sentenced him to 25 years on the murder charge and 15 years on the

cocaine charges, all to run concurrently.

      After years of state postconviction litigation over the sentences imposed for

his violation of community control, in 2016 Mr. Paez filed a § 2254 petition



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asserting three claims. First, he said the state court lacked jurisdiction to sentence

him for the violation of his community control. Second, he said his sentence for

community control violation in turn violated his double jeopardy rights. And third,

he argued he is actually innocent of the crimes charged. Mr. Paez’s petition also

set forth some of the relevant dates his state postconviction motions were filed and

decided. No attorney appeared on behalf of the Secretary of the Florida

Department of Corrections, who has custody of Mr. Paez. An email address

belonging to the Florida Attorney General does appear on the docket, and some

filings are marked as having been sent to this address. However, the Florida

Attorney General never filed anything in the case.

       Mr. Paez’s petition was assigned to a magistrate judge. Rule 4 of the Rules

Governing Section 2254 Proceedings in the United States District Courts required

the magistrate judge to do a preliminary assessment of Mr. Paez’s petition and

dismiss “[i]f it plainly appears from the petition . . . that the petitioner is not

entitled to relief.” After conducting this review, the magistrate judge took it upon

himself to calculate the timeliness of Mr. Paez’s petition.

       A § 2254 petition must be filed within a year of, as relevant here, the date

the challenged conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The

limitations period is tolled while properly filed state postconviction motions are

pending. Id. § 2244(d)(2). The magistrate judge took judicial notice of the filing



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dates of Mr. Paez’s postconviction motions and the dates of orders resolving those

motions, as reflected in state court docket entries for Mr. Paez’s criminal cases.

These docket sheets were available online but never made a part of the record.

      The dates Mr. Paez gave in his petition together with those reflected on the

electronic dockets made it appear that his petition was untimely. Based on those

dates, the magistrate judge recommended sua sponte dismissing Mr. Paez’s

petition under Rule 4 without ordering the Secretary to respond. The District

Court adopted the Report and Recommendation over Mr. Paez’s objections.

      This appeal followed. Our Court granted Mr. Paez a certificate of

appealability on the issue of whether the District Court erred in dismissing the

petition as untimely. Because Mr. Paez was proceeding pro se, the Court

appointed Joseph A. DiRuzzo, III, to represent him on appeal. We appreciate Mr.

DiRuzzo’s diligent representation of Mr. Paez and his service to the Court.

                                         II.

      This case presents two distinct issues. The first is whether the District Court

could properly take judicial notice of the online state court dockets in Mr. Paez’s

criminal cases. The second is whether it was error to dismiss Mr. Paez’s petition

as untimely without ordering the Secretary to respond. We review a district court’s

decision to take judicial notice of a fact for abuse of discretion. Lodge v. Kondaur

Capital Corp., 750 F.3d 1263, 1273 (11th Cir. 2014). We also review a district



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court’s decision to sua sponte raise the statute of limitations for abuse of discretion.

Day v. McDonough, 547 U.S. 198, 202, 126 S. Ct. 1675, 1679–80 (2006). Our

review leads us to conclude the District Court acted properly when it took notice of

the state court dockets as well as when it sua sponte dismissed the petition without

ordering a response from the Secretary.

                                                    A.

       Federal Rule of Evidence 201 permits a court to “judicially notice a fact that

is not subject to reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.” Fed.

R. Evid. 201(b)(2). State court records of an inmate’s postconviction proceedings

generally satisfy this standard. See Cunningham v. Dist. Att’y’s Office, 592 F.3d

1237, 1255 (11th Cir. 2010); Moore v. Estelle, 526 F.2d 690, 694 (5th Cir. 1976)

(“[W]e take judicial notice of prior habeas proceedings brought by this appellant in

connection with the same conviction. This includes state petitions, even when the

prior case is not made part of the record on appeal . . . .” (citations omitted)) 1; see

also Porter v. Ollison, 620 F.3d 952, 954–55 (9th Cir. 2010) (noticing “any state




       1
          In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.



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court dockets or pleadings that have been located (including on the Internet) and

for which it is proper to take judicial notice”).

       The dates the District Court noticed from the online state court dockets

constitute judicially noticeable facts under Rule 201. The dockets can be found on

the website for the Clerk of the St. Lucie County Circuit Court, who is the public

officer responsible for maintaining records of the St. Lucie County Circuit Court. 2

See Fla. Const. art. VIII, § 1(d). The dockets reflect the dates of proceedings in

Mr. Paez’s cases, from first appearance through to the Florida appellate courts’

resolution of his postconviction motions. The docket entries also have links to

electronic versions of many of Mr. Paez’s filings, as well as to many state trial and

appellate court orders on Mr. Paez’s postconviction motions. We have no reason

to think these docket entries do not accurately reflect the dates in Mr. Paez’s cases.

The District Court could properly notice the state court docket sheets in these

circumstances.3




       2
         The docket entries can be found at: https://courtcasesearch.stlucieclerk.com/. Mr.
Paez’s case numbers are 56-2003-CF2667B and 56-2003-CF2934A. We were able to access the
docket sheets using these case numbers with no trouble.
       3
          This ruling is consistent with non-binding opinions from prior panels of this Court. See
Boyd v. Georgia, 512 F. App’x 915, 917 (11th Cir. 2013) (per curiam) (unpublished); United
States v. Brown, 526 F.3d 691, 711–13 (11th Cir. 2008), vacated on other grounds, 556 U.S.
1150, 129 S. Ct. 1668 (2009); United States v. Ayuso, 272 F. App’x 833, 835–36 (11th Cir.
2008) (per curiam) (unpublished).


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      However, we caution that “the taking of judicial notice of facts is, as a

matter of evidence law, a highly limited process. The reason for this caution is that

the taking of judicial notice bypasses the safeguards which are involved with the

usual process of proving facts by competent evidence in district court.” Shahar v.

Bowers, 120 F.3d 211, 214 (11th Cir. 1997) (per curiam) (en banc). “In order to

fulfill these safeguards, a party is entitled to an opportunity to be heard as to the

propriety of taking judicial notice.” Dippin’ Dots, Inc. v. Frosty Bites Distrib.,

LLC, 369 F.3d 1197, 1205 (11th Cir. 2004) (quotation marks omitted and

alteration adopted). Rule 201 does not require courts to warn parties before taking

judicial notice of some fact, but, upon the party’s request, it does require an

opportunity to be heard after the court takes notice. Fed. R. Evid. 201(e).

      These safeguards have particular importance in the context of determining

the timeliness of § 2254 petitions. We know that online state court dockets may

not always reflect the correct filing date for purposes of calculating the statute of

limitations. For example, Florida and this Court both follow the “mailbox rule,”

which deems inmate papers filed the date of mailing or, absent an indication of the

mailing date, the day the inmate signed them. See Washington v. United States,

243 F.3d 1299, 1301 (11th Cir. 2001) (per curiam); Haag v. State, 591 So. 2d 614,

617 (Fla. 1992); Waters v. Dep’t of Corr., 144 So. 3d 613, 617 (Fla. 1st DCA

2014). And by its nature, the docket will show the date a pleading was docketed



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rather than the date it was mailed or signed. On top of that, inmates may not have

ready access to their legal papers, leaving them unable to dispute the accuracy of

any docket entry. Neither may they have access to an Internet connection. This

would make disputing or even reviewing an online docket entry impossible where,

as happened here, a district court fails to make the docket sheets part of the record.

We think the best practice would be to include copies of any judicially noticed

records as part of the Order that relies upon them, so as to ensure the inmate

receives them. Cf. Rodriguez v. Fla. Dep’t of Corr., 748 F.3d 1073, 1076–77 (11th

Cir. 2014) (holding the State must serve all documents referenced in an answer to a

§ 2254 petition on the petitioner).

      While we urge caution, we conclude proper safeguards were followed in this

case. Mr. Paez had an opportunity to object to the Report and Recommendation

after the magistrate judge took judicial notice of the dates from his state court

dockets. Mr. Paez did not ask to be heard. See Fed. R. Evid. 201(e) (requiring a

hearing where the party requests one). Neither did he dispute the accuracy of the

docket entries the magistrate judge relied upon. Finally, Mr. Paez gave no

indication he lacked the ability to dispute the docket sheets—because of, say, his

lack of an Internet connection. The docket entries here were properly noticed, and

the procedure followed here gave Mr. Paez an opportunity to ask to be heard on the

propriety of judicial notice. Thus, we see no abuse of discretion.



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                                           B.

      Having concluded the docket entries relied upon by the District Court were

properly noticed, we now turn to the second issue. That is, whether the District

Court erred in sua sponte dismissing Mr. Paez’s § 2254 petition without ordering

the Secretary to respond.

      Rule 4 requires district courts to dismiss § 2254 petitions without ordering

the State to respond “[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief.” This preliminary review calls

on a district court to perform a screening function, ordering summary dismissal

where a petition makes no meritorious claim to relief. See Rules Governing

§ 2254 Cases, R. 4 advisory committee notes (“[I]t is the duty of the court to

screen out frivolous applications.”). The procedure serves to “eliminate the burden

that would be placed on the respondent by ordering an unnecessary answer.” Id.

      To survive Rule 4 review, a § 2254 petition must set forth facts that, if true,

would establish a constitutional violation entitling the petitioner to relief. See

Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011) (holding that a § 2254 petition

must comply with the “fact pleading requirements of [Habeas] Rule 2(c) and (d)”

to survive dismissal under Rule 4). If a petition does not set forth a sufficient

factual basis for habeas relief, the petition is “legally insufficient on its face,” and

the district court must dismiss it. McFarland v. Scott, 512 U.S. 849, 856, 114 S.



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Ct. 2568, 2572 (1994). Dismissal under Rule 4 represents “a judgment that the

claims presented are nonmeritorious” based on the facts alleged. Borden, 646 F.3d

at 812.

       We hold that the District Court did not err by sua sponte dismissing Mr.

Paez’s § 2254 petition after giving him notice of its decision and an opportunity to

be heard in opposition. Our conclusion is supported by the text of Rule 4, the

Advisory Committee Notes to Rule 4, and Supreme Court precedent.

       First, the text of Rule 4 does not restrict summary dismissals to merits-based

deficiencies. As we’ve already noted, the district court must dismiss a § 2254

petition “[i]f it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief.” Rules Governing § 2254 Cases, R. 4. Both a

procedural bar and a merits-based deficiency could lead a district court to conclude

that the petitioner is “not entitled to relief.” See id.

       Our reading of the rule is supported by the Advisory Committee Notes. In

1976, when the rule was adopted, the Advisory Committee recognized the

suggestion “that an answer should be required in every habeas proceeding.” Rules

Governing § 2254 Cases, R. 4 advisory committee notes. The Advisory

Committee rejected this idea, saying that district courts have a “duty . . . to screen

out frivolous applications and eliminate the burden that would be placed on the

respondent by ordering an unnecessary answer.” Id. In support of this broad



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interpretation of Rule 4, the Advisory Committee cited Allen v. Perini, 424 F.2d

134 (6th Cir. 1970). In Allen, the Sixth Circuit held that a district court has the

authority to dismiss a “petition sua sponte for failure to exhaust State remedies,”

even if the State has not responded to the petition and raised that procedural bar to

relief. Id. at 138–39. As the Sixth Circuit put it, “[if] at any time during the course

of a habeas corpus proceeding the District Court finds that the prisoner has not

exhausted the remedies available to him in the courts of the State, the petition

should be dismissed.” Id. The Allen court went on to explain that a response from

the State is not needed “when the petition is frivolous, or obviously lacking in

merit, or where . . . the necessary facts can be determined from the petition itself.”

Id. at 141. This description clearly encompasses the case we consider here, where

the petition was dismissed for lack of timeliness.

      Finally, our interpretation of Rule 4 is aligned with Supreme Court

precedent. In Day, the Supreme Court confronted the question of “whether a

federal court lacks authority, on its own initiative, to dismiss a habeas petition as

untimely, [if] the State has answered the petition without contesting its timeliness,”

547 U.S. at 202, 126 S. Ct. at 1679, or has erroneously conceded the timeliness

issue, see id. at 205, 126 S. Ct. at 1681. The Supreme Court ruled that a district

court may act on its own initiative to dismiss a petition in such a circumstance,

provided the court “accord[s] the parties fair notice and an opportunity to present



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their positions.” Id. at 210, 126 S. Ct. at 1684. The Supreme Court rejected the

petitioner’s countervailing interpretation of Rule 4, in part because it would make

it nearly impossible for courts “to raise AEDPA’s time bar sua sponte.” Id. at 207

n.6, 126 S. Ct. at 1682 n.6. This reasoning applies with even greater force at the

Rule 4 stage, where district courts “must” dismiss petitions that plainly present no

entitlement to review.

      Other Circuits agree that a district court may sua sponte dismiss a § 2254

petition if the petition’s untimeliness is “clear from the face of the petition itself.”

Kilgore v. Att’y Gen. of Colo., 519 F.3d 1084, 1089 (10th Cir. 2008); see Valdez

v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019) (holding that the district court

did not err by sua sponte dismissing plainly untimely § 2254 petition where the

court provided the petitioner with “adequate notice and an opportunity to respond”

(quotation marks omitted)); cf. Shelton v. United States, 800 F.3d 292, 295 (6th

Cir. 2015) (holding that the district court erred by sua sponte dismissing habeas

petition on timeliness grounds because the petitioner did not have an “opportunity

to challenge the arguments that the district court invoked in finding the motion

untimely”). And our pre-Day precedent does not suggest otherwise. See Jackson

v. Sec’y for Dep’t of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (per curiam)

(holding that, “even though the statute of limitations is an affirmative defense, the

district court may review sua sponte the timeliness of the section 2254 petition.”).



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      Here, Mr. Paez was provided ample notice and opportunity to explain why

his petition was timely in his form petition and again when he was given the

opportunity to respond to the magistrate judge’s Report and Recommendation that

his petition be summarily dismissed as untimely. See Magourik v. Phillips, 144

F.3d 348, 359 (5th Cir. 1998) (holding that plaintiff “was afforded both notice and

a reasonable opportunity to oppose” procedural default when he was given an

opportunity to object to magistrate judge’s Report and Recommendation that

“placed [him] on notice that procedural default was a potentially dispositive

issue”). Beyond that, the Secretary was notified of the court’s action and had an

opportunity to respond, including an opportunity to inform the District Court if it

intended to waive the timeliness defense. The Secretary remained silent. To this

day, no one contests that the petition was untimely, and the State has never

indicated a desire to waive the limitations bar. The District Court thus complied

with Day and Rule 4 and its dismissal was not an abuse of discretion.

                                        III.

      For these reasons, the District Court did not abuse its discretion when it

dismissed Mr. Paez’s § 2254 petition without ordering the Secretary to respond in

some form. We therefore AFFIRM the dismissal of his petition.




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