from the United States District Court for the Southern
District of Florida D.C. Docket No. 2:16-cv-14259-RLR
MARTIN, TJOFLAT, and TRAXLER, [*] Circuit Judges.
publish this opinion in place of our July 31, 2019 opinion,
which was vacated by order of the Court on December 23, 2019.
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.
oral argument and careful consideration, we affirm the
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.
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.
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
§ 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
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.
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