Case: 17-12541 Date Filed: 05/14/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12541
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-20381-KMW
MICHAEL ROZIER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 14, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-12541 Date Filed: 05/14/2019 Page: 2 of 9
Michael Rozier, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. We granted a
certificate of appealability (“COA”) on the issue of whether the district court erred
in dismissing, without an evidentiary hearing, Rozier’s original § 2254 petition, as
well as denying his first and second motions to amend his § 2254 petition, by
relying on state court electronic dockets in determining the untimeliness of
Rozier’s habeas proceeding.
We review de novo the district court’s dismissal of a § 2254 petition as
untimely. Pugh v. Smith,
465 F.3d 1295, 1298 (11th Cir. 2006). In an appeal
brought by an unsuccessful habeas petitioner, the scope of our review is limited to
the issues specified in the COA. Kuenzel v. Allen,
488 F.3d 1341, 1343 (11th Cir.
2007); see also Williams v. McNeil,
557 F.3d 1287, 1290 n.4 (11th Cir. 2009)
(refusing to consider the merits of the defendant’s timeliness argument where the
COA was granted only as to “whether the Court was required to consider [his]
arguments regarding timeliness”). However, we have broadly interpreted a COA
to include the applicability of equitable tolling where the COA was issued on
whether the one-year limitations period barred the prisoner’s petition and whether
the statute of limitations was tolled during the pendency of the prisoner’s petition
for writ of certiorari. Lawrence v. Florida,
421 F.3d 1221, 1225-26 (11th Cir.
2005). Pro se pleadings are held to a less stringent standard than those drafted by
2
Case: 17-12541 Date Filed: 05/14/2019 Page: 3 of 9
attorneys and are thus liberally construed. Tannenbaum v. United States,
148 F.3d
1262, 1263 (11th Cir. 1998). Arguments raised for the first time on appeal are not
properly before us. Hurley v. Moore,
233 F.3d 1295, 1297 (11th Cir. 2000).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which became effective on April 24, 1996, a § 2254 petition is
governed by a one-year statute of limitations that begins to run on the latest of four
triggering events, including the date on which the challenged judgment became
final “by the conclusion of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A). Prisoners whose convictions became
final before April 24, 1996, have one year from this date to file their habeas action,
or until April 23, 1997. See Goodman v. United States,
151 F.3d 1335, 1337 (11th
Cir. 1998) (holding that federal prisoners convicted before the AEDPA’s effective
date must be given a “reasonable time” to file a § 2255 motion, which is one year
from the Act’s effective date); Wilcox v. Fla. Dep’t of Corr.,
158 F.3d 1209, 1211
(11th Cir. 1998) (holding the same in the context of a § 2254 petition).
Statutory tolling allows state prisoners to toll the limitations period while
properly filed state post-conviction actions are pending. 28 U.S.C. § 2244(d)(2).
First, Florida has adopted a mailbox rule for the filing of post-conviction motions
by pro se prisoners. See Thompson v. State,
761 So. 2d 324, 326 & n.1 (Fla. 2000).
Further, we have recognized Florida motions under Fla. R. Crim. P. 3.850 as
3
Case: 17-12541 Date Filed: 05/14/2019 Page: 4 of 9
tolling motions. Day v. Crosby,
391 F.3d 1192, 1192-93 (11th Cir. 2004).
Petitioners adjudicated guilty prior to January 1, 1985, had until January 1, 1986,
to file a Rule 3.850 motion challenging their pre-1985 conviction. In re Rule 3.850
of Fla. R. Crim. P.,
481 So. 2d 480, 480 (Fla. 1985). Appeals filed in a state court
from the denial of these motions also toll the limitations period. See
Crosby, 391
F.3d at 1192-93.
The district court may sua sponte dismiss a habeas petition as untimely
under the AEDPA’s statute of limitations but is not obligated to do so. See Day v.
McDonough,
547 U.S. 198, 209 (2006). “[B]efore acting on its own initiative, a
court must accord the parties fair notice and an opportunity to present their
positions. Further, the court must assure itself that the petitioner is not
significantly prejudiced by the delayed focus on the limitation issue, and determine
whether the interests of justice would be better served by addressing the merits or
by dismissing the petition as time barred.”
Id. at 210 (quotation marks and
citations omitted). In Day, the Supreme Court held that the district court did not
err when it sua sponte dismissed a habeas petition as untimely because:
[T]he Magistrate Judge gave Day due notice and a fair opportunity to
show why the limitation period should not yield dismissal of the
petition. The notice issued some nine months after the State answered
the petition. No court proceedings or action occurred in the interim,
and nothing in the record suggests that the State ‘strategically’
withheld the defense or chose to relinquish it.
Id. at 210-11.
4
Case: 17-12541 Date Filed: 05/14/2019 Page: 5 of 9
Habeas Rule 4 provides that “If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.” Rules
Governing § 2254 Cases, Rule 4.
The Federal Rules of Evidence permit a district court to take judicial notice
of a fact that is not subject to reasonable dispute on its own initiative, but taking
judicial notice of facts is “a highly limited process.” Lodge v. Kondaur Capital
Corp.,
750 F.3d 1263, 1273 (11th Cir. 2014) (quotation marks omitted). “The
reason for this caution is that the taking of judicial notice bypasses the safeguards
which are involved with the usual process of proving facts by competent evidence
in district court.”
Id. (quotation marks omitted). Accordingly, “[t]he court may
judicially notice a fact that is not subject to reasonable dispute because it: (1) is
generally known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b). “Since the effect of taking judicial notice
under Rule 201 is to preclude a party from introducing contrary evidence and in
effect, directing a verdict against him as to the fact noticed, the fact must be one
that only an unreasonable person would insist on disputing.” United States v.
Jones,
29 F.3d 1549, 1553 (11th Cir. 1994). Due to these safeguards, a party is
5
Case: 17-12541 Date Filed: 05/14/2019 Page: 6 of 9
entitled an opportunity to be heard as to the propriety of taking judicial notice,
upon timely request. See Fed. R. Evid. 201(e).
We have previously taken judicial notice of prior habeas proceedings
brought by a prisoner challenging the same conviction, even when the record was
not before us on appeal, when determining whether a plea was voluntary. See
Moore v. Estelle,
526 F.2d 690, 694 (5th Cir. 1976). This decision, from 1976,
presumably used paper records from previous litigation. See
id. We have also
held that a district court could take judicial notice of a petitioner’s previously filed
§ 2254 applications to determine that certain claims were successive. See Allen v.
Newsome,
795 F.2d 934, 938 (11th Cir. 1986). Regarding state court dockets, we
have previously held that a district court could take judicial notice of uncertified
docket sheets as evidence of the defendant’s prior convictions to determine if he
was subject to the career-offender enhancement under the Sentencing Guidelines.
See United States v. Brown,
526 F.3d 691, 710-12 (11th Cir. 2008), judgment
vacated on other grounds,
556 U.S. 1150 (2009).
A federal court shall not hold an evidentiary hearing on a claim in a § 2254
petition if the petitioner has failed to develop the factual basis in state court unless
the petitioner shows that: (A) the claim relies on either a new rule of constitutional
law, made retroactive by the Supreme Court, or newly discovered evidence, and
(B) the facts underlying the claim would be sufficient to establish by clear and
6
Case: 17-12541 Date Filed: 05/14/2019 Page: 7 of 9
convincing evidence that, but for constitutional error, no reasonable fact-finder
would have found the applicant guilty of the underlying offense. 28 U.S.C.
§ 2254(e)(2). An evidentiary hearing is not required “on the issue of time-bar or
equitable tolling, so the decision as to whether to conduct an evidentiary inquiry is
a matter left to the sound discretion of the district court.” San Martin v. McNeil,
633 F.3d 1257, 1271 (11th Cir. 2011) (quotation marks omitted). An evidentiary
hearing may be necessary where the material facts are disputed, but the petitioner
is not entitled to one when his claims “are merely conclusory allegations
unsupported by specifics.”
Id. (quotation marks omitted).
Even if the district court erred in failing to hold an evidentiary hearing,
several reasons persuade us that the record in this case is absolutely clear that
Rozier’s § 2254 petition is barred by AEDPA’s statute of limitations. In arguing
that his petition is not time barred, Rozier relies solely on a purported Rule 3.850
motion which he claims he filed in state court in March 1997, which he further
claims has never been ruled upon by the state courts. He argues, correctly, that
such a March 1997 Rule 3.850 motion would, if “properly filed,” have been timely
under AEDPA because his AEDPA statute of limitations did not expire until April
24, 1997. But Rozier incorrectly argues that the Rule 3.850 motion tolled the time
for filing his § 2254 petition. Under Florida law, Rozier’s collateral challenge to
his 1980 conviction had to be filed by January 1, 1986. See In re Rule 3.850 of
7
Case: 17-12541 Date Filed: 05/14/2019 Page: 8 of 9
Fla. R. Crim. P.,
481 So. 2d 480, 480 (Fla. 1985) (holding that petitioners
convicted prior to January 1, 1985, had until January 1, 1986, to file a Rule 3.850
motion). Thus, Rozier’s purported March 1997 Rule 3.850 motion was barred by
Florida’s own state law statute of limitations. Accordingly, even assuming the
validity of Rozier’s March 1997 Rule 3.850 motion, and even assuming that it
could toll the time for filing Rozier’s § 2254 petition all the way to the January 24,
2017, filing thereof, his March 1997 Rule 3.850 motion was untimely filed under
state law, and thus was not “properly filed” so as to toll the time for filing a § 2254
petition. Artuz v. Bennett,
531 U.S. 4, 8 (2000).
Accordingly, it would be futile to hold an evidentiary hearing on whether
Rozier’s March 1997 Rule 3.850 motion has significance for this case. We need
not address the following facts that would counsel against the existence of the
purported Rule 3.850 motion. First, Rozier initially indicated in his § 2254 petition
that he had no pending post-conviction motions in state or federal court, which
contradicts his later assertion in the objections to the R&R that he had an
outstanding Rule 3.850 motion from March 1997. Second, the Rule 3.850 motion
had no date stamp other than the one on the date it was received for mailing in the
present case. Third, the caption of Rozier’s Rule 3.850 motion named Miami-
Dade County, even though the county was called “Dade County” when he
allegedly filed it in March 1997. Similarly, there is no need for an evidentiary
8
Case: 17-12541 Date Filed: 05/14/2019 Page: 9 of 9
hearing to determine whether Rozier diligently pursued his rights with respect to a
March 1997 Rule 3.850 motion still pending twenty years later, or other issues that
Rozier might have raised.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
9
