Octavio Arnulfo Hernandez v. Secretary, Florida Department of Corrections

Case: 18-12613 Date Filed: 05/24/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12613
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-21599-CMA
OCTAVIO ARNULFO HERNANDEZ,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 24, 2019)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 18-12613 Date Filed: 05/24/2019 Page: 2 of 3
Octavio Arnulfo Hernandez, proceeding pro se, appeals from the district
court’s dismissal of his petition under 28 U.S.C. § 2254 for a writ of habeas
corpus. We granted a certificate of appealability (“COA”) to Hernandez on one
issue: whether the district court erred in dismissing his petition as time-barred by
relying on the state courts’ electronic dockets in determining the untimeliness of
the petition.
In an appeal brought by an unsuccessful habeas petitioner, the scope of our
review is generally limited to the issues specified in the COA. Kuenzel v. Allen,
488 F.3d 1341, 1343 (11th Cir. 2007) (per curiam); see also Williams v. McNeil,
557 F.3d 1287, 1290 n.3 & n.4 (11th Cir. 2009). Although, in exceptional
circumstances, we may sua sponte expand a COA, “an appellant granted a COA on
one issue cannot simply brief other issues as he desires in an attempt to force both
the Court and his opponent to address them.” Dell v. United States, 710 F.3d 1267,
1272 (11th Cir. 2013).
Petitions dismissed as time-barred are considered as dismissals with
prejudice. See Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1353 (11th
Cir. 2007). The time limits for filing a § 2254 petition are not jurisdictional.
Holland v. Fla., 560 U.S. 631, 645 (2010). We “may sua sponte raise the issue of
clerical errors in the judgment and remand with instructions that the district court
correct the errors.” United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).
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Because Hernandez is an unsuccessful habeas petitioner, the scope of our
review is generally limited to the issues specified in the COA. Kuenzel, 488 F.3d
at 1343; Williams, 557 F.3d at 1290 n.3 & n.4. However, Hernandez has not
addressed the issue of whether the district court erred by taking judicial notice of
electronic state court dockets to determine the timeliness of his § 2254 petition, the
sole issue for which he was granted a COA, and so he has abandoned any
argument as to that issue. Jones, 436 F.3d at 1303. Instead, the arguments in his
brief are outside the scope of the COA. Although we may, in certain exceptional
circumstances, expand a COA sua sponte, no such circumstances are present here
that would justify our doing so. Dell, 710 F.3d at 1272. Accordingly, we affirm
the district court’s dismissal of Hernandez’s § 2254 petition as time-barred.
However, while the district court dismissed Hernandez’s § 2254 petition
after determining that it was untimely, its dismissal states that it was “for lack of
jurisdiction.” Given the district court’s analysis of the time bar issue and the fact
that the statute of limitations is not a jurisdictional issue, see Holland, 560 U.S. at
645, this appears to have been a clerical error. As a result, we sua sponte vacate in
part the district court’s decision and remand for the district court to deny the
petition with prejudice as time-barred. Massey, 443 F.3d at 822.
AFFIRMED IN PART, VACATED AND REMANDED IN PART
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