Michael Rozier v. Secretary, Florida Department of Corrections

Opinion

Case: 17-12541 Date Filed: 08/27/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12541 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-20381-KMW

MICHAEL ROZIER,

Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents - Appellees.

________________________

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

(August 27, 2019) Case: 17-12541 Date Filed: 08/27/2019 Page: 2 of 3

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

We GRANT Rozier’s petition for panel rehearing, vacate our prior opinion

in this case, and replace it with this one. Since our last opinion issued, this Court

issued a precedential decision in Paez v. Secretary, Florida Department of

Corrections, No. 16-15705 (11th Cir. July 31, 2019). There, as here, a state inmate

filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 that looked to

be untimely. And there, as here, the district court sua sponte dismissed the petition

without ordering a response from the State.

In Paez, the Court held that district courts “must order the State to respond,

even if the petition appears untimely[,]” whenever the petition “states a legally

sufficient claim for relief.” Id., slip op. at 2. The Court explained that “[t]his

response need not be an answer on the merits” but may instead “take whatever

form the district court deems appropriate, including a motion to dismiss on

timeliness grounds.” Id. Because the district court in Paez ordered no State

response, this Court vacated and remanded for the district court to order the State

to respond to the petition. Id., slip op. at 16.

To maintain harmony among this Court’s decisions, we will follow Paez

here. We thus VACATE the dismissal of Rozier’s § 2254 petition and REMAND

2 Case: 17-12541 Date Filed: 08/27/2019 Page: 3 of 3

for further proceedings consistent with Paez. Our ruling does not prejudice the

ability of the Secretary to raise the timeliness of Rozier’s petition on remand.