Terrence Thomas v. Florida Department of Corrections

USCA11 Case: 21-13068 Document: 33-1 Date Filed: 07/12/2023 Page: 1 of 7

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-13068 Non-Argument Calendar ____________________

TERRENCE THOMAS, Petitioner-Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

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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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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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Footnotes

[2] Opinion of the Court 21-13068 Before LUCK, LAGOA, and EDMONDSON, 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 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.

[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).

[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 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.