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Paez v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

July 31, 2019

ROLANDO GUS PAEZ, Petitioner-Appellant,

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:16-cv-14259-RLR

          Before TJOFLAT, MARTIN, and TRAXLER, [*] Circuit Judges.

          MARTIN, Circuit Judge:

         This case involves a state inmate who filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus that looks to be untimely. It thus 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 Ronaldo Paez without ordering a response from the Secretary of the Florida Department of Corrections.

         After oral argument and careful consideration, we conclude this was error. When 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. This response need not be an answer on the merits. It may take whatever form the district court deems appropriate, including a motion to dismiss on timeliness grounds. But while district courts have discretion to direct various types of responses, they are without discretion to dispense with any response altogether.

         Since this District Court ordered no State response to Mr. Paez's petition before dismissing it, we vacate that dismissal and remand for further proceedings consistent with this opinion. Our ruling does not prejudice the ability of the Secretary to question the timeliness of Mr. Paez's petition on remand.


         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 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 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.


         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 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 ...

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