              Case: 18-11087    Date Filed: 06/13/2019   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11087
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 9:18-cv-80067-WPD

JOHN A. TOTH,

                                                              Petitioner-Appellant,

                                       versus

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

                                                          Respondents-Appellees.

                           ________________________

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

                                    (June 13, 2019)

Before WILLIAM PRYOR, MARTIN, GRANT, Circuit Judges.

PER CURIAM:

      John A. Toth, a Florida prisoner proceeding pro se, appeals the District

Court’s sua sponte dismissal of his 28 U.S.C. § 2254 petition as time-barred. After

careful consideration, we affirm.
              Case: 18-11087     Date Filed: 06/13/2019    Page: 2 of 6


      Toth filed a § 2254 application for a writ of habeas corpus in federal district

court, challenging the constitutionality of his Florida convictions and 10-year

prison sentence for arson and related crimes. A magistrate judge sua sponte

recommended dismissing Toth’s petition as time-barred. See Jackson v. Sec’y for

Dep't of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (per curiam) (holding that

district courts “may determine that a section 2254 petition is time-barred even

though the state did not raise the issue”). To arrive at this recommendation, the

magistrate judge took judicial notice of online records from Toth’s state court case.

The district court adopted the magistrate’s report and recommendation in full and,

relying on the same judicially noticed documents, dismissed Toth’s petition as

time-barred. The court also ruled, in the alternative, Toth’s petition was due to be

denied on the merits. The district court issued no certificate of appealability

(“COA”). See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a

[COA], an appeal may not be taken to the court of appeals from . . . the final order

in a habeas corpus proceeding in which the detention complained of arises out of

process issued by a State court.”).

      Toth obtained a COA from this Court on two issues: whether the district

court erred in ruling sua sponte without reviewing the complete, official state court

record that Toth’s § 2254 petition (1) was time-barred and (2) failed on the merits.




                                          2
                 Case: 18-11087   Date Filed: 06/13/2019   Page: 3 of 6


      Our precedent compels the conclusion that Toth abandoned any argument

challenging the district court’s ruling that his § 2254 was petition time-barred

without reviewing the official and complete state court record. Though we read

pro se briefs liberally, we must deem arguments not raised in an initial brief or

raised for the first time in a reply brief abandoned. Timson v. Sampson, 518 F.3d

870, 874 (11th Cir. 2008) (per curiam) (citing Horsley v. Feldt, 304 F.3d 1125,

1131 n.1 (11th Cir. 2002) and Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003)

(per curiam)).

       Upon careful review of Toth’s initial brief on appeal, we can find only

“passing references” to this argument, which are insufficient to preserve this claim

for our review. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th

Cir. 2014). The first time he “plainly and prominently” raises this argument is in

his reply brief. Id. at 681 (quotation marks omitted). But this does not preserve

the issue for appellate review, even though Toth is proceeding pro se. See Timson,

518 F.3d at 874. Thus, we must affirm the district court’s judgment. See Sapuppo,

739 F.3d at 680 (“When an appellant fails to challenge properly on appeal one of

the grounds on which the district court based its judgment, he is deemed to have

abandoned any challenge of that ground, and it follows that the judgment is due to

be affirmed.”).

      AFFIRMED.


                                          3
               Case: 18-11087      Date Filed: 06/13/2019   Page: 4 of 6


MARTIN, Circuit Judge, concurring:

      Our precedent requires us to affirm the District Court’s dismissal of Mr.

Toth’s habeas petition without fully considering the merits of his appeal. But that

result was not inevitable. Had Mr. Toth been represented by counsel, I suspect he

would have properly presented the two issues on which we allowed him an appeal.

This would have given him the benefit of full adversarial testing in a matter of the

utmost importance to him as well as our legal system. See Lonchar v. Thomas,

517 U.S. 314, 324, 116 S. Ct. 1293, 1299 (1996) (“Dismissal of a first federal

habeas petition is a particularly serious matter, for that dismissal denies the

petitioner the protections of the Great Writ entirely, risking injury to an important

interest in human liberty.”).

      It wasn’t for lack of trying on Mr. Toth’s part. He told us he “lacks the

proper adequate resources to fully, fairly, and thoroughly address the complex

issues related to this case.” He asked this Court to appoint him “the competent

assistance of legal counsel” to assist him in his appeal. I view Mr. Toth’s request

as eminently reasonable, given the “immense complexities of federal habeas

corpus law.” Duncan v. Walker, 533 U.S. 167, 184 n.2, 121 S. Ct. 2120, 2130 n.2

(2001) (Souter, J., concurring).

      While that request was pending in this Court, Mr. Toth filed his initial

appellate brief himself. Perhaps owing to the “immense complexities of federal


                                           4
               Case: 18-11087     Date Filed: 06/13/2019    Page: 5 of 6


habeas corpus law,” id., he failed to argue the only issues this Court permitted him

to appeal. Over a month after he filed his brief, this Court denied Mr. Toth’s

motion for appointment of counsel. The order denying his request reasoned that

“[t]he interests of justice do not require that counsel be appointed in this case,” as

“[Mr.] Toth’s filings in both the district court and this Court show that he is able to

adequately present his legal arguments and cite to legal authority,” and as the

issues on appeal were “not so novel or complex as to require” assistance of a

trained lawyer.

      I regret that I did not seek to have counsel appointed for Mr. Toth at the time

I granted his Certificate of Appealability (“COA”). The questions initially

presented in his appeal were novel—there was no Circuit precedent answering

them. See Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993) (indicating that

appointment of counsel is warranted in a civil case involving complex or novel

legal issues). Mr. Toth’s legal filings demonstrated that he was not able to

adequately present his legal arguments. His Motion for a COA did not even

identify the legal issue on which I granted him a COA. Beyond that, Mr. Toth had

already filed his initial brief at the time of this Court’s order opining that he could

represent himself, and he had clearly been unable to present the only arguments

relevant to this appeal. As the order denying Mr. Toth’s request for counsel

recognized, “[t]he key [question in determining whether counsel should be


                                           5
              Case: 18-11087       Date Filed: 06/13/2019   Page: 6 of 6


appointed] is whether the pro se litigant needs help in presenting the essential

merits of his or her position to the court.” Id. Clearly, Mr. Toth did need that help.

Nonetheless, we must evaluate his pro se pleadings, and they present no way

forward for his § 2254 petition.




                                           6
