Osvaldo Lazo v. Secretary, Florida Department of Corrections

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11779
Non-Argument Calendar
____________________
OSVALDO LAZO,
Petitioner-Appellant,
versus
SECRETARY, 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-60554-MGC
____________________
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2 Opinion of the Court 21-11779
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Osvaldo Lazo, a Florida prisoner proceeding pro se, appeals
the district court’s dismissal without prejudice of his pro se 28
U.S.C. § 2254 federal habeas petition for failure to comply with a
court order. He argues that the district court abused its discretion
in dismissing his petition because he did not willfully and
intentionally defy the district court and the page limitation
imposed by the court conflicts with the instructions on the § 2254
form. He also argues that the dismissal functioned as a dismissal
with prejudice because any future § 2254 petition would be time-
barred. 1 Under the circumstances of this case, we conclude that
the district court abused its discretion, and we vacate and remand
for further proceedings.
I. Background
In 2013, Lazo was convicted in Florida of two counts of
sexual battery and one count of lewd and lascivious molestation.
Lazo pursued a direct appeal and postconviction relief in the
Florida courts. Florida’s Fourth District Court of Appeal
summarily affirmed the denial of Lazo’s postconviction motion on
April 23, 2020. Lazo v. State, 294 So. 3d 890 (Fla. 4th DCA 2020)
1 Lazo also raised arguments concerning the merits of his underlying claims.
We do not reach these issues.
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(table). The mandate issued on May 22, 2020, at which time the
one-year federal habeas statute of limitations started running.
Thus, Lazo had until May 22, 2021, to file a timely § 2254 petition.
On March 4, 2021, Lazo filed a timely 34-page pro se § 2254
habeas petition in the United States District Court for the Southern
District of Florida, purporting to raise five issues. A few days later,
the district court sua sponte ordered Lazo to file an amended
petition because, among other things, (1) he had not used the
district court’s designated form for § 2254 petitions; (2) the petition
was unclear and contained “vague, conclusory, and rambling
allegations” and combined multiple claim in single headings; and
(3) the petition was 34 pages, which exceeded the district court’s
local rule that imposed a “20-page limits for motions and legal
memoranda.” With regard to the local page limitation rule, the
district court explained that, although the rule did “not expressly
apply to § 2254 petitions, the [c]ourt look[ed] to it as a guide when
exercising its inherent authority to impose page limits on § 2254
petitions” and that the excessive length of Lazo’s 34-page petition
had “interfered with the [c]ourt’s ability to efficiently and
effectively screen the Petition” as required by the applicable habeas
rules.
Thus, the district court ordered that Lazo file an amended
petition using the court’s designated § 2254 form, and that his
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4 Opinion of the Court 21-11779
petition could not contain more than eight grounds for relief,2 had
to comply with all the local rules including text size, margins, and
line spacing, and could not refer to or incorporate by reference
arguments made in the initial petition or “any other documents.”
The district court also directed that the amended § 2254 petition
had to be docketed by the district court by April 12, 2021, and that
if it was not docketed by that date, the case would be dismissed.
The court emphasized that it would not use the date on which
Lazo signed the amended petition, or the date he submitted it to
prison authorities for mailing as the filing date. The court
cautioned that “failure to comply with this Order will result in
dismissal of this case, and that no further amendments will be
permitted.” (emphasis in original).
Notably, the district court attached to its order the
designated 16-page § 2254 form and related instructions. These
instructions provide that a petitioner “must include all the grounds
for relief from the conviction or sentence” being challenged, and
that a failure to set forth all grounds may result in the petitioner
being barred from pursuing those grounds at a later date.
Relatedly, the instructions provide that a petitioner “may submit
additional pages if necessary” and that if the petitioner “want[ed]
to submit any legal arguments, [the petitioner] must submit them
in a separate memorandum.”
2 The district court did not cite to any law or rule in support of this number-
of-claims limitation
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21-11779 Opinion of the Court 5
Lazo requested the appointment of counsel, but his motion
was denied. On April 12, 2021, Lazo filed an amended § 2254
petition using the designated form. He attached additional pages
of supporting argument for his claims, which brought the amended
petition to a total of 44 pages.
The following day, the district court dismissed the petition
without prejudice for failing to comply with the court’s prior order.
Specifically, the district court concluded that dismissal was
appropriate because it had warned Lazo that failure to comply with
its order in full would result in dismissal of his case, and Lazo had
disregarded the district court’s 20-page limitation, as well as its
instruction that he not incorporate by reference arguments from
other documents. 3 The court noted that, at the time Lazo filed the
initial petition in March 2021, he had only 79 days remaining under
the Antiterrorism and Effective Death Penalty Act’s (AEDPA)
applicable one-year statute of limitations, and that “the filing of this
federal habeas case did not toll the statute of limitations.”
Accordingly, the court cautioned that any delay in refiling a
separate action may result in his petition being time-barred.
On April 26, 2021, Lazo filed a second amended pro se § 2254
petition that did not include any additional pages and complied
with the district court’s 20-page limitation. On May 3, 2021, with
3 In Claim 8, Lazo attempted to incorporate by reference “the additional facts
and legal arguments” made in his state court proceedings with regard to Claim
8.
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6 Opinion of the Court 21-11779
less the 20 days left in the one-year limitation period, the district
court struck the second amended petition, explaining that it had
not granted Lazo leave to amend, and he would need to file a new
separate action if he wanted to pursue § 2254 relief.
The next day, Lazo filed a motion to alter or amend
judgment, pursuant to Federal Rule of Civil Procedure 59, or in the
alternative a motion to reopen the case. He asserted that he was a
Cuban native, with limited education and English proficiency, and
he had difficulty understanding the district court’s prior orders, but
that he had attempted to comply and did not intend to defy or
disregard the court’s directives. He also emphasized that the
court’s failure to reopen his case could have an adverse effect on
AEDPA[‘s] time limitation period,” and he urged the court to
accept the second amended petition.
The district court denied his motion the same day,
explaining that it found Lazo’s arguments concerning his limited
English proficiency and ability to understand the court’s prior
orders “unpersuasive,” noting that his prior filings were all
submitted in English and that he had complied with other
directives from the court, such as the instruction to pay the filing
fee or file a motion for permission to proceed in forma pauperis.
And the district court again cautioned Lazo that the one-year
limitations period was not tolled.
With just two days left in the limitations period, Lazo filed a
new petition on May 18, 2021. This petition was not labeled a
“third” petition, but instead was simply labeled “petition” and it
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21-11779 Opinion of the Court 7
complied with the district court’s previously ordered
requirements. The district court struck this petition as well on May
25, 2021, at which point Lazo’s one-year statute of limitations for
filing a timely § 2254 petition had expired.
Meanwhile, Lazo filed a notice of appeal from both the order
dismissing his amended § 2254 petition and the denial of his motion
for reconsideration. The district court construed the notice of
appeal as a request for a certificate of appealability, which it
denied. 4 This appeal followed.
II. Discussion
We review a district court’s dismissal of an action for failure
to comply with court rules for abuse of discretion. Betty K
Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir.
2005). We review the denial of a motion for reconsideration under
Rule 59 for abuse of discretion. Mincey v. Head, 206 F.3d 1106,
1137 (11th Cir. 2000).
“A district court has inherent authority to manage its own
docket so as to achieve the orderly and expeditious disposition of
cases.” Equity Lifestyle Prop., Inc. v. Fla. Mowing & Landscape
Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (quotation omitted).
Thus, under Federal Rule of Civil Procedure 41(b), a “court may
dismiss [an action] if the plaintiff fails to . . . comply with a court
4 We denied a COA as unnecessary under Hubbard v. Campbell, 379 F.3d 1245(11th Cir. 2004).
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8 Opinion of the Court 21-11779
order.” Id. However, we have repeatedly cautioned that “[p]ro se
habeas petitioners do not stand in the same position as counseled
petitioners,” and are “often unlearned in the law and unfamiliar
with the complicated rules of pleading.” Gunn v. Newsome, 881
F.2d 949, 961 (11th Cir. 1989). Therefore, “courts should construe
a habeas petition filed pro se more liberally than one drawn up by
an attorney,” and “we do not impose on [pro se petitioners] the
same high standards of the legal art which we might place on the
members of the legal profession.” Id. (quotation omitted).
Local Rule 7.1(c)(2) for the Southern District of Florida
provides that “[a]bsent permission of the [c]ourt, neither a motion
and its incorporated memorandum of law . . . shall exceed twenty
(20) pages.” As the district court noted in its order below, this Rule
does not expressly apply to habeas petitions. Similarly, the Rules
Governing § 2254 petitions do not set forth any page limitation.
See generally Rules Governing Section 2254 Proceedings in United
States District Courts. Rather, the Rules Governing § 2254
petitions provide that “[t]he petition must substantially follow” the
prescribed form, id. Rule 2(d), and must “specify all the grounds for
relief available,” “state the supporting facts for each ground,” “state
the relief requested,” “be printed, typewritten, or legibly
handwritten,” and signed under penalty of perjury, id. Rule 2(c).
Additionally, the instructions for the designated § 2254 form
provide that a petitioner “may submit additional pages if
necessary” and that if the petitioner “wants to submit any legal
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21-11779 Opinion of the Court 9
arguments, [the petitioner] must submit them in a separate
memorandum.”
We have held that pro se litigants are “required . . . to
conform to procedural rules,” Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007), and that “dismissal upon disregard of an order,
. . . where the litigant has been forewarned, generally is not an
abuse of discretion. Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989). Nevertheless, dismissal is an “extraordinary remedy.”
Id.; see also Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944
(11th Cir. 2005) (explaining that dismissal is “the most severe
sanction available to a federal court, and therefore should only be
exercised where there is a showing of bad faith and where lesser
sanctions will not suffice”). Thus, we have cautioned that the
“extraordinary remedy” of dismissal of a pro se party’s action for
failure to comply with a court order should be reserved for very
select circumstances—such as when a pro se party is willfully
violating a court’s order or is repeatedly engaging in misconduct
and there is no indication of a willingness to comply. Moon, 863
F.2d at 838–39 (dismissal appropriate where pro se plaintiff “had
been repeatedly and stubbornly defiant,” refused to acknowledge
court’s authority, and expressed no willingness to comply with
numerous court orders); Betty K. Agencies, 432 F.3d at 1338(dismissal appropriate where plaintiff repeatedly violated rules and
ignored numerous court orders and where court had tried lesser
sanctions on two prior occasions). Additionally, where a dismissal
“has the effect of precluding [plaintiff] from refiling his claim due
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10 Opinion of the Court 21-11779
to the running of the statute of limitations . . . [t]he dismissal [is]
tantamount to a dismissal with prejudice.” Justice v. United States,
6 F.3d 1474, 1482 n.15 (11th Cir. 1993) (quotations omitted). A
dismissal with prejudice is “a sanction of last resort” and is “proper
only where there is a clear record of delay or willful contempt.” Id.(quotation omitted).
Here, in light of the one-year limitations period governing
the filing of § 2254 petitions, due to the dismissal without prejudice
of Lazo’s amended § 2254 petition, the denial of his motion for
reconsideration, and the present appeal period, any subsequent
§ 2254 petition would be untimely. Under these circumstances, the
dismissal without prejudice operated effectively as a dismissal with
prejudice. And the record does not support that Lazo willfully
violated the district court’s order. Rather, following the district
court’s order, Lazo resubmitted his § 2254 petition using the 16-
page designated form and submitted 28 pages of supporting
memoranda. Although the petition still exceeded the local rule
page-limitation rule, 5 it is clear that Lazo was trying to comply
with the district court’s directives.
5 As discussed above, nothing in the local rules indicates that the 20-page
limitation applies to habeas petitions, and it does not appear that this rule is
regularly or uniformly enforced in habeas proceedings. Nevertheless, for
purposes of this opinion, we will assume that the rule applies.
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21-11779 Opinion of the Court 11
Furthermore, within two weeks of the district court’s
dismissal of his amended petition, Lazo submitted a second
amended petition that complied with the page limitation in
question, along with a motion for reconsideration, explaining that
due to his limited education and proficiency in English, he had not
understood the prior order and did not intentionally defy the court.
Yet, despite the evidence of his efforts to comply, the district court
struck the second amended petition, stating that Lazo was not
given leave to amend and needed to file a separate action to pursue
§ 2254 relief, and denied his motion for reconsideration. 6
Thereafter, with just a few days left in the limitations period, Lazo
again filed what appears to have been his attempt at a new § 2254
petition, 7 but again the district court struck this filing. While
Lazo’s pleading and filing efforts did not meet the “same high
standards” that we might expect of counsel, it is clear that his
efforts to comply were sincere. Given that the record does not
support that Lazo willfully violated the district court’s order and
because under the circumstances, Lazo would now be foreclosed
from pursuing any federal habeas relief due to the expiration of the
6 We note that instead of striking the second amended petition, in light of
Lazo’s pro se status, the district court could have instructed the clerk of court
to docket the second amended petition as a new action.
7 The filing was labeled simply “petition” as opposed to a “third” or
“amended” petition, which leads us to believe that he was attempting to file a
new action.
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12 Opinion of the Court 21-11779
statute of limitations, we vacate and remand for further
proceedings.8
VACATED AND REMANDED.
8 We note there are other aspects of the district court’s order directing Lazo
to file an amended petition that cause us concern and demonstrate an abuse
of discretion. First, the district court ordered that Lazo could not assert more
than eight grounds for relief. No such limitation exists in the local rules or the
rules governing § 2254 proceedings. Second, the district court stated that
Lazo’s amended petition had to be docketed by a certain date, and that it
would not consider the date he submitted the petition to prison authorities for
mailing as the date of filing. But the Supreme Court has held, in the context
of habeas petitions brought by federal prisoners, that a pro se prisoner’s
motion is deemed filed on the date the prisoner delivers the motion to prison
authorities for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988). And we
have held that this same “mailbox rule” applies to a state prisoner’s habeas
petition. Taylor v. Williams, 528 F.3d 847, 851 (11th Cir. 2008). The district
court does not have the authority to disregard this line of precedent.