Travis D. Turner v. Secretary, Department of Corrections

          USCA11 Case: 18-12891       Date Filed: 03/25/2021   Page: 1 of 8



                        FOR THE ELEVENTH CIRCUIT

                                 No. 18-12891

                    D.C. Docket No. 8:17-cv-00648-MSS-JSS






                   Appeal from the United States District Court
                       for the Middle District of Florida

                                 (March 25, 2021)
Before WILSON, GRANT, and TJOFLAT, Circuit Judges.
GRANT, Circuit Judge:
      While serving a life sentence in Florida, Travis Turner filed this petition
under 28 U.S.C. § 2254. In his filing, he conceded that the petition was
untimely—and provided the dates to prove it. The district court confirmed that the
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petition was late by checking Turner’s online state court dockets, and then sua
sponte dismissed the petition as untimely.

      Turner now argues that the district court erred by taking judicial notice of
the online state court dockets without providing him an opportunity to be heard.
But Turner himself provided all the information needed to show that his filing was
late, and he was given a chance to argue that the district court erred. We therefore
affirm the district court’s denial of his petition.

      In 2002, Turner was convicted of numerous offenses—including robbery,
armed robbery, aggravated battery of a person 65 years or older, and possession of
controlled substances. He was sentenced to life in prison plus 30 years, and his
convictions were affirmed on appeal. Turner v. State, 873 So. 2d 480, 480 (Fla.
Dist. Ct. App. 2004).
      After that unfavorable conclusion, Turner gave up on direct appeals. Rather
than seeking review of his case at the Florida Supreme Court, he filed a motion for
post-conviction relief under Florida Rule of Criminal Procedure 3.850 in the
Hillsborough County Circuit Court in December 2005. Turner’s motion was
denied in August 2006. Six years later, he tried again for post-conviction relief,
this time through a state habeas petition. The same result followed; in March
2015, his petition was summarily denied.
      At that point, it was on to federal court. Turner, proceeding pro se, filed a
petition under 28 U.S.C. § 2254 in March 2017, challenging both his convictions
and his sentence. Turner’s initial petition failed to use the district court’s standard

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form, so the court required an amendment using the proper paperwork. But it first
observed that Turner’s petition failed “to disclose relevant dates showing when his

direct appeal concluded, when he commenced a state post-conviction proceeding,
and when that proceeding concluded.” Under the Antiterrorism and Effective
Death Penalty Act, a state prisoner must file a § 2254 petition within a one-year
period of limitations. 28 U.S.C. § 2244(d)(1). The clock for Turner’s petition
began to run when “the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A).

Because Turner did not provide those dates, the court said the petition’s timeliness
was “not ascertainable.”
      Turner filed his amended petition using the standard form the next month.
This time, he provided dates. The form also required Turner, because his
“judgment of conviction became final over one year ago,” to explain why “the one-
year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar [his]
petition.” In response, Turner offered a concession: “It is clear that Movant is far
beyond the one-year time limit” set in 28 U.S.C. § 2244(d). He also attached
unofficial state court documents to the filing, which stated that his direct appeal
had concluded in 2004, roughly 13 years earlier. Still, he insisted that his
ineffective assistance of counsel and due process claims, in and of themselves,
constituted “extraordinary circumstances” justifying relief from the statute of
      The district court found that Turner’s petition was untimely and dismissed it
without requiring a response from the state. In particular, the court noted that

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“Turner admits that his petition ‘is far beyond the one-year time limit,’” and found
his direct appeal had concluded in May 2004. In a footnote, the court observed

that the “online dockets for the Second District Court of Appeal and the Circuit
Court for Hillsborough County further confirm Turner’s dates.” So using that May
2004 date, the court calculated that Turner’s conviction became final 90 days later,
in August 2004. That means the limitations period would have expired one year
later, in August 2005.
       All this supported Turner’s concession that his 2017 petition was indeed

filed “far beyond” the time limit. And because he had not demonstrated
entitlement to equitable tolling, the district court dismissed his petition. Still, the
court explained that Turner could move to reopen the action if “he believes that he
can show [] that the determination of untimeliness is incorrect.” The court’s order
also allowed for the possibility that Turner could show that he was actually
innocent, or that he was entitled to equitable tolling or “a start of the limitation
under a provision other than 28 U.S.C. § 2244(d)(1)(A).” But rather than move to
reopen the action in the district court, Turner sought a certificate of appealability,
which the district court denied. He then moved in this Court for a certificate of
appealability. We granted it on a single issue: “Whether the district court erred in
sua sponte determining that Turner’s 28 U.S.C. § 2254 petition was time-barred
without reviewing the complete, official state court record.”1

  Turner now argues in his briefs that the district court also erred when it denied his equitable
tolling claim. That argument would be tough sledding for him; we have recognized that a
litigant can plead himself out of court by alleging facts that foreclose a finding of equitable
tolling. See Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971–72 (11th Cir. 2016) (en

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       A district court’s decision to consider, sua sponte, the timeliness of a state

prisoner’s habeas petition is reviewed for abuse of discretion. Paez v. Sec’y,
Florida Dep’t of Corr., 947 F.3d 649, 651 (11th Cir. 2020). Its decision to take
judicial notice of a fact is also reviewed for abuse of discretion. Id.
       A district court must dismiss a § 2254 petition without ordering the State to
respond if “it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district court.” Rules Governing § 2254
Cases, R. 4. The Advisory Committee on the Rules Governing § 2254 Cases stated
this obligation emphatically: “[I]t is the duty of the court to screen out frivolous
applications.” Rules Governing § 2254 Cases, R. 4 advisory committee’s note; see
also Rodriguez v. Florida Dep’t of Corr., 748 F.3d 1073, 1076 (11th Cir. 2014)
(“Advisory Committee Notes” are a “reliable source of insight into the meaning of
a rule” (quotation omitted)). The one-year limitations period found in 28 U.S.C.
§ 2244 is one of many procedural obstacles that could mean a petition is frivolous,
and it is one that the district court can raise sua sponte. Jackson v. Sec’y for the
Dep’t of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002).
       Based on Turner’s petition, the latest state court pronouncement in his direct
appeal was in 2004. And according to United States Supreme Court rules, a

banc). But we do not consider Turner’s equitable tolling argument in any event because “in an
appeal brought by an unsuccessful habeas petitioner, appellate review is limited to the issues
specified in the COA.” Murray v. United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998).
Here, the certificate of appealability only invites consideration of the district court’s decision to
review the state court docket.
          USCA11 Case: 18-12891        Date Filed: 03/25/2021     Page: 6 of 8

petition for a writ of certiorari must be filed within 90 days after the state court
entry of judgment. Sup. Ct. R. 13. The district court calculated that Turner’s state

court judgment became final on August 10, 2004. With the filing deadline falling
a year after that, his 2017 petition was almost 12 years too late.
      Against those facts, it is difficult for Turner to find a reason that the district
court’s untimeliness decision cannot stand. Indeed, he does not contest the
correctness of the dates that he provided or the dates that the court relied on. What
he does contest is the district court’s authority to corroborate the dates he provided

by reviewing online state court dockets. Several problems with this argument
come to mind, but an initial one is this: the district court did not need to rely on
those online dockets to find that Turner’s petition was untimely. Turner himself
provided dates that showed his petition was too late and the court found that the
state online dockets “further confirm Turner’s dates.” And Turner didn’t just
provide dates—in his petition, Turner “admit[ted]” that his filing was untimely.
We decline to find error because the district court double-checked the dates that
Turner had already offered.
      Still, Turner contends that the dismissal should be reversed because he did
not have the benefit of a magistrate judge’s report, or more precisely, the benefit of
objecting to a magistrate judge’s report. He grounds this requirement in a recent
case from this Circuit, Paez v. Secretary, Florida Department of Corrections, 947
F.3d 649 (11th Cir. 2020), where we affirmed a dismissal under similar
circumstances. There, a magistrate judge, having retrieved the necessary dates
from the online state court dockets, recommended dismissing a § 2254 petition sua

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sponte because it was untimely. Paez, 947 F.3d at 651. The district court, over
Paez’s objections, adopted the report and recommendation, dismissing the case.

Id. In affirming the district court, we held that the “dates the District Court noticed
from the online state court dockets constitute judicially noticeable facts under Rule
201.” Id. at 652.
      That point seems to decide this case, and not in Turner’s favor. He argues
that Paez supports him in any event, because we observed in that opinion that Paez
had an opportunity to object to the magistrate judge’s report. Id. at 653. Under

Rule 201(e) of the Federal Rules of Evidence, upon “timely request,” a party is
“entitled to be heard on the propriety of taking judicial notice and the nature of the
fact to be noticed.” Turner claims that he, unlike Paez, was denied an opportunity
to be heard on whether judicial notice of the online state court dockets was
appropriate because no report and recommendation was issued.
      But Paez provides no relief to Turner. Nowhere in that case did we require a
report and recommendation. And though Turner also argues that the district court
should have included the relevant state court dockets in the record, we have never
required that either. In Paez, we only said that including those dockets is a “best
practice,” not a mandatory one. Id. at 653. And it was hardly necessary here, since
Turner himself had already admitted that his direct appeal concluded in 2004.
What Paez did reinforce was “an opportunity to be heard as to the propriety of
taking judicial notice.” Id. at 652 (quotation omitted). That’s exactly what the
district court gave Turner: an opportunity to reopen his case if he could show that
the district court’s “determination of untimeliness [was] incorrect.” He had 30

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days to do so, but Turner never moved to reopen his case. Instead, by the time that
period expired, he had filed a notice of appeal to this Court. The fact that he

declined his opportunity to be heard does not mean that he did not have one.
      To be clear, the “opportunity to respond” debate does not change the fact
that decides this case: everything that the district court needed to determine
timeliness was provided by Turner in his petition. The district court did not need
to look at the online state court docket at all. That it did so was a courtesy, not an
error, and an extra step by a careful judge provides no reason to reverse the district

court’s judgment.
                                    *      *      *
      When Turner admitted untimeliness and provided the dates to prove it, he
eliminated any need for the district court to look elsewhere before dismissing his
petition. And despite what he claims, Turner had an opportunity to be heard on the
propriety of taking judicial notice here. He simply did not take advantage of it.
Accordingly, we AFFIRM.

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