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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15753
Non-Argument Calendar
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D.C. Docket No. 9:17-cv-81108-WPD
TELLY KAVANTZAS,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 14, 2020)
Before GRANT, TJOFLAT and MARCUS, Circuit Judges.
PER CURIAM:
Telly Kavantzas, a Florida prisoner, appeals the district court’s sua sponte
dismissal of his 28 U.S.C. § 2254 petition. He argues that: (1) the district court erred
in dismissing his petition as untimely by taking judicial notice of his state court
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criminal proceedings and post-conviction filings and by not first requiring a response
from the state; and (2) the district court erred in its alternative sua sponte denial of
his petition, which determined that Grounds One and Two of his petition were
unexhausted and Grounds Three and Four failed on the merits, without requiring the
state to respond. After careful review, we affirm.
We review for abuse of discretion a district court’s decision to take judicial
notice of a fact and its decision to sua sponte raise the statute of limitations. Paez v.
Sec’y, Fla. Dep’t of Corr., 2020 WL 63290 at *2, __ F.3d __ (11th Cir. Jan. 7, 2020).
Federal Rule of Evidence 201 permits a court to “judicially notice a fact that is not
subject to reasonable dispute.” Fed. R. Evid. 201(b). “State court records of an
inmate’s postconviction proceedings generally satisfy this standard.” Paez, 2020
WL 63290 at *2. Taking judicial notice of facts is, however, a “highly limited
process” that must be done with caution because it bypasses safeguards provided by
presenting facts through evidence. Id. at *3. In the context of determining the
timeliness of § 2254 petitions, we’ve recommended that the district court include
copies of any judicially noticed records as part of the order relying on them. Id.
Habeas Rule 4 provides that, “[i]f 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.” Rules Governing § 2254 Cases, Rule 4. In these
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instances, the petition is legally insufficient on its face, the district court must
dismiss it, and can do so without ordering the state to respond. Id.
In our now-vacated decision in Paez v. Sec’y, Fla. Dep’t of Corr., 931 F.3d
1304, opinion vacated by 944 F.3d 1327 (11th Cir. 2019), we determined that dates
from online state court dockets were judicially noticeable facts under Rule 201 and
that proper safeguards had been followed because the petitioner had an opportunity
to be heard after the court took judicial notice. Id. at 1307. We held, therefore, that
the district court had not abused its discretion by taking judicial notice of the docket
entries. Id. We further held, however, that the district court had abused its discretion
when it dismissed the petition as untimely without ordering any response from the
state. Id. at 1311. But after vacating that opinion, we replaced it with a new one. In
the new opinion, we affirmed the district court decision in its entirety, holding that
the district court could both (1) take judicial notice of the state court docket, and (2)
sua sponte dismiss the petition as untimely without ordering the state to respond.
Paez, 2020 WL 63290 at *2-*5.
In this case, as in Paez, the district court did not abuse its discretion by taking
judicial notice of Kavantzas’ electronic state court dockets. Although courts should
use caution in this respect, the district court here followed the proper procedural
safeguards -- the magistrate judge made the electronic dockets on which he relied
part of the record, and Kavantzas never alleged that he did not receive those dockets.
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See id. at *3. Moreover, before the present appeal, Kavantzas did not object, dispute
the accuracy of the dockets or the dates the magistrate judge used, or otherwise ask
to be heard on the issue of judicial notice. Accordingly, the district court did not
abuse its discretion in taking judicial notice of the electronic state court dockets. See
id.
Nor did the district court abuse its discretion by sua sponte dismissing
Kavantzas’ § 2254 petition as untimely without requiring a response from the state.
Under Rule 4, the district court could sua sponte dismiss Kavantzas’s petition for a
procedural bar, like untimeliness, because he would not be entitled to relief if his
petition was untimely. See id. at *4. Kavantzas was provided notice and an
opportunity to argue the timeliness of his petition in his form petition and after the
magistrate judge’s Report and Recommendation was issued. See id. at *5.
Similarly, the state was notified of both the Report and Recommendation and the
district court’s adoption of it, which meant that the state could have indicated its
intent to assert or waive its timeliness defense. See id. Accordingly, we affirm the
district court’s dismissal of the petition for untimeliness, and need not address the
district court’s dismissal in the alternative.1
AFFIRMED.
1
In addition, we DENY the parties’ joint motion to stay further proceedings pending the
issuance of the mandate in Paez.
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