Octavio Arnulfo Hernandez v. Secretary, Florida Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 24, 2019
• Docket: 18-12613
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]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 ________________________

No. 18-12613 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-21599-CMA

OCTAVIO ARNULFO HERNANDEZ,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________

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

(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).

2 Case: 18-12613 Date Filed: 05/24/2019 Page: 3 of 3

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