Case: 18-12465   Date Filed: 02/21/2020   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12465
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:18-cv-20872-CMA



ANTHONY ATES,

                                                          Petitioner-Appellant,

                                  versus

STATE OF FLORIDA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (February 21, 2020)

Before WILLIAM PRYOR, JORDAN and TJOFLAT, Circuit Judges.

PER CURIAM:
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      Anthony Ates, a Florida prisoner, appeals the sua sponte dismissal of his

petition for a writ of habeas corpus as untimely. We issued a certificate of

appealability on the issue whether the district court erred in sua sponte determining

that Ates’s petition was untimely without reviewing the complete, official state

court record. We affirm.

      Ates is serving a thirty-year sentence in Florida for aggravated battery,

armed robbery, and violation of community control. After filing several

postconviction motions in state court, Ates filed a petition for a writ of habeas

corpus in federal court. See 28 U.S.C. § 2254. A magistrate judge reviewed Ates’s

petition for timeliness. Because the one-year period in which a petitioner must file

his petition is tolled while he has a pending state postconviction motion, 

2244(d)(2), the magistrate judge took judicial notice of the online state trial and

appellate court dockets from Ates’s state proceedings to determine the relevant

dates for the limitations period. It concluded that Ates’s petition was untimely and

recommended dismissing the petition on that ground.

      Ates objected to the magistrate judge’s report. He acknowledged that he

filed his petition after the limitations period but argued that he was entitled to

statutory and equitable tolling. Yet he did not object to the dates the magistrate

judge used to calculate the timeliness of his petition, nor did he ask to be heard on

the issue of the court taking judicial notice. The district court adopted the


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magistrate judge’s report and dismissed the petition as untimely after concluding

that Ates filed his petition well beyond the one-year limitations period and that he

was not entitled to equitable tolling. Ates appealed and now argues that the district

court erred in dismissing his petition after taking judicial notice of his online state-

court records instead of considering the official state-court records.

      We review for an abuse of discretion the 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., 

, 651 (11th Cir. 2020).

      Our recent decision in Paez controls this appeal. In Paez, a magistrate judge

took judicial notice of online-state-court docket entries as part of its preliminary

assessment of the petition and, based on the dates for those entries, recommended

sua sponte dismissing the petition as untimely. 

The petitioner had the

opportunity to object to the magistrate judge’s report but did not ask to be heard on

the issue of the court taking judicial notice, nor did he contest the dates on which

the magistrate judge relied. 

653. The district court sua sponte dismissed

the petition as untimely, and we affirmed. 

We held that a district court

may take judicial notice of online-state-court docket entries when it uses necessary

safeguards, which are present when it provides the petitioner with “an opportunity

to ask to be heard on the propriety of judicial notice.” 

We also held

that a district court may sua sponte dismiss a petition at the screening stage for


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untimeliness if it provides the petitioner with notice and an opportunity to be

heard. 

      The same is true here. The district court did not abuse its discretion in taking

judicial notice of the electronic state court docket entries because Ates had ample

notice and opportunity to be heard. The magistrate judge made the electronic

dockets part of the record, and the clerk mailed a copy of them to Ates. Ates never

alleged that he did not receive the records or was otherwise unaware of them. He

had the opportunity to challenge the accuracy of the electronic dockets or to ask to

be heard on the issue when he objected to the magistrate judge’s recommendation,

but he did not.

      Nor did the district court abuse its discretion in sua sponte dismissing the

petition for untimeliness because it provided Ates with notice and an opportunity

to be heard. 

see also Day v. McDonough, 

, 209–10 (2006).

Ates had the opportunity to object to the magistrate judge’s report and to dispute

its conclusion that his petition was untimely. And the state was notified of the

magistrate judge’s recommendation but never stated an intent to waive the

limitations bar. We discern no error in the ruling that Ates’s petition was untimely

and not entitled to equitable tolling.

      We AFFIRM the sua sponte dismissal of Ates’s petition as untimely.




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