Terrence Thomas v. Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13068
Non-Argument Calendar
____________________
TERRENCE THOMAS,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-61287-AHS
____________________
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2 Opinion of the Court 21-13068
Before L UCK , LAGOA , and E DMONDSON, Circuit Judges.
PER CURIAM:
Terrence Thomas, a Florida prisoner now represented by
counsel on appeal, appeals the district court’s
sua sponte dismissal
of Thomas’s
pro se 28 U.S.C. § 2254 petition as time-barred. In his
section 2254 petition, Thomas sought to challenge his Florida con-
viction for armed home-invasion robbery and his resulting 30-year
sentence. No reversible error has been shown; we affirm.
Thomas filed
pro se his section 2254 petition on 17 June
2021. In an attached memorandum, Thomas conceded expressly
that his petition was untimely filed. Thomas listed the pertinent
dates for calculating timeliness and concluded that his petition was
filed after the statute-of-limitations had expired. Nevertheless,
Thomas argued that he was entitled to equitable tolling based on
the supposed ineffective assistance of his post-conviction lawyer
and based on Thomas’s limited access to the prison’s law library
due to the COVID-19 pandemic.
The district court took judicial notice of the electronic state-
court dockets in Thomas’s underlying criminal and collateral pro-
ceedings. The district court also ordered that those state-court
dockets be entered into the record and be mailed to Thomas.
In a separate order filed several days later, the district court
dismissed
sua sponte Thomas’s petition as time-barred. Relying on
the judicially-noticed state-court dockets, the district court
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21-13068 Opinion of the Court 3
determined that Thomas’s conviction became final on 11 July 2018.
The district court then calculated that a total of 519 untolled days
had elapsed before Thomas filed his section 2254 petition: (1) 202
days between the date Thomas’s conviction became final (11 July
2018) and the date Thomas filed his first state post-conviction mo-
tion (29 January 2019); and (2) 317 days between the state appellate
court’s order denying rehearing
en banc on Thomas’s second state
post-conviction motion (4 August 2020) and the filing of Thomas’s
section 2254 petition (17 June 2021). The district court thus deter-
mined that Thomas’s petition was barred by the one-year statute
of limitations in 28 U.S.C. § 2244(d)(1)(A).1 The district court con-
cluded further that Thomas had failed to demonstrate circum-
stances sufficient to warrant equitable tolling or to otherwise jus-
tify an exception to the pertinent statute of limitations.
Thomas appealed the district court’s decision. We granted
a certificate of appealability on this issue: “Whether the district
court erred by
sua sponte determining that Thomas’s 28 U.S.C. §
2254 habeas petition was time-barred and taking judicial notice of
dates from electronic state-court dockets without giving the parties
notice and an opportunity to present their positions?”
We review for abuse of discretion a “district court’s decision
to consider,
sua sponte, the timeliness of a state prisoner’s habeas
1 The district court concluded that the events for triggering the limitations
period under 28 U.S.C. § 2244(d)(1)(B), (C), or (D) were inapplicable to
Thomas’s case.
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4 Opinion of the Court 21-13068
petition.”
See Turner v. Sec’y, Dep’t of Corr., 991 F.3d 1208, 1211
(11th Cir. 2021). We also review for abuse of discretion a district
court’s “decision to take judicial notice of a fact.”
See id.
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) imposes a one-year statute-of-limitations for filing a
section 2254 petition, which begins to run on “the date on which
the judgment became final.” 28 U.S.C. § 2244(d)(1)(A). A
“properly filed application for State post-conviction or other collat-
eral review” tolls the AEDPA limitations period while the state ha-
beas petition is pending. 28 U.S.C. § 2244(d)(2).
A district court may consider
sua sponte the timeliness of a
state prisoner’s habeas petition as long as the court gives the “par-
ties fair notice and an opportunity to present their positions.”
See
Day v. McDonough, 547 U.S. 198, 209-10 (2006). We have said that
-- in assessing
sua sponte the timeliness of a habeas petition -- a dis-
trict court may take judicial notice of electronic state-court dockets
provided the petitioner is thereafter given “an opportunity to be
heard as to the propriety of taking judicial notice.”
See Paez v.
Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 652-53 (11th Cir. 2020) (con-
cluding that the district court abused no discretion in taking judicial
notice of state-court dockets and in dismissing
sua sponte a section
2254 habeas petition as time-barred because the habeas petitioner
had an opportunity -- in his objections to the magistrate judge’s re-
port and recommendation -- to challenge the propriety of the judi-
cial notice and to present his arguments about timeliness).
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21-13068 Opinion of the Court 5
On appeal, Thomas contends the district court erred in dis-
missing
sua sponte his petition without providing him an oppor-
tunity to be heard on the propriety of the taking of judicial notice.
We disagree.
When -- as in this case -- a petitioner concedes that his peti-
tion is untimely and “provide[s] the dates to prove it, he elimi-
nate[s] any need for the district court to look elsewhere before dis-
missing his petition.”
See Turner, 991 F.3d at 1212. Given
Thomas’s presentation of the pertinent dates and his own admis-
sion that his petition was untimely-filed, the district court had dis-
cretion to dismiss
sua sponte Thomas’s petition as time-barred
without looking to the state-court dockets at all. That the district
court consulted -- and took judicial notice of -- online state-court
dockets to confirm Thomas’s assertion that his petition was un-
timely-filed was “a courtesy, not an error.”
See id. (rejecting a pe-
titioner’s challenge to the district court’s authority to corroborate
dates listed in his petition by reviewing online state-court dockets:
“an extra step by a careful judge provides no reason to reverse the
district court’s judgment”).2
Moreover, we reject Thomas’s contention that he was de-
nied an adequate opportunity to be heard. First, contrary to
Thomas’s assertion on appeal, the district court was not required
2 We note that never has Thomas disputed that his petition was in fact un-
timely-filed or disputed the accuracy of the dates upon which the district court
relied in making a determination about timeliness.
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6 Opinion of the Court 21-13068
to refer the matter to a magistrate judge for a report and recom-
mendation before dismissing Thomas’s petition on timeliness
grounds.
See Turner, 991 F.3d at 1212. Second, we concluded in
Turner that the petitioner had an adequate opportunity to be heard
on the propriety of taking judicial notice because the petitioner
could have moved to reopen the case.
See id. Like the petitioner
in
Turner, Thomas was free to challenge the propriety of the dis-
trict court’s taking of judicial notice by moving to reopen under
Fed. R. Civ. P. 59(e) or 60(b).
See Fed. R. Civ. P. 59(e) (providing
that a motion to alter or to amend the judgment may be filed
within 28 days after judgment is entered); Fed. R. Civ. P. 60(b) (set-
ting forth the grounds upon which a district court may relieve a
party from a final judgment, including “mistake” or “inadvert-
ence”);
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (a Rule
59(e) motion may be used to correct “manifest errors of law or
fact”).
That the district court provided no express instruction to
Thomas about the procedural rules for moving to reopen did not
deprive Thomas of his opportunity to be heard. Although courts
must construe liberally
pro se pleadings,
pro se litigants are ex-
pected to “conform to procedural rules” and a court has no “license
to serve as
de facto counsel for a party.”
See Campbell v. Air Jam.,
Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014);
Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007). That Thomas chose to appeal
the district court’s decision instead of moving to reopen does not
mean he was denied the opportunity to be heard in the district
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21-13068 Opinion of the Court 7
court.
See Turner, 991 F.3d at 1212 (explaining that, when a peti-
tioner files a notice to appeal instead of moving to reopen his case,
“[t]he fact that he declined his opportunity to be heard does not
mean that he did not have one”).
AFFIRMED.
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