UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-23156-CV-ALTMAN 

CHRISTOPHER SUTTON, 

Petitioner, 

vs. 

MARK INCH, 

Respondent. 

____________________________/ 

ORDER 

“The district court possesses the inherent power to police its docket.” Collins v. Lake Helen, 

L.P., 249 F. App’x 116, 120 (11th Cir. 2007). Consistent with that authority, the Court has 

determined that this case should be dismissed without prejudice. 

A U.S. Magistrate Judge instructed the Petitioner to file an amended petition for writ of 

habeas corpus by August 24, 2020. See Order to Amend (“the Order” or “Order to Amend”) [ECF 

No. 4] at 3. In that Order to Amend, the Magistrate Judge warned the Petitioner that his “[f]ailure 

to timely file his amended petition . . . will result in dismissal of this case,” id. (emphasis omitted), 

and (later) cautioned him that failure to comply with the Order “will result in dismissal of this 

case,” id. at 4 (emphasis omitted). Despite these unambiguous warnings, the Petitioner never filed 

an amended petition. 

Under Rule 12 of the Rules Governing Section 2254 Cases, the Federal Rules of Civil 

Procedure apply in Section 2254 proceedings “to the extent that they are not inconsistent with any 

statutory provisions or [the Rules Governing Section 2254 Cases].” And, “[p]ursuant to FED. R.

CIV. P. 41(b), a district court may sua sponte dismiss a [litigant’s] action for failure to comply with 

Case 1:20-cv-23156-RKA Document 8 Entered on FLSD Docket 10/20/2020 Page 1 of 6
2 

the rules or any order of the court.” Owens v. Pinellas Cty. Sheriff’s Dep’t, 331 F. App’x 654, 656 

(11th Cir. 2009). “In addition to its power under Rule 41(b), a court also has the inherent ability to 

dismiss a claim in light of its authority to enforce its orders and provide for the efficient disposition 

of litigation.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). 

A Magistrate Judge of this Court twice warned the Petitioner that, if he failed to file his 

amended petition by August 24, 2020, his case would be dismissed without prejudice. Despite 

these unambiguous warnings, the Petitioner never filed an amended petition—and the deadline to 

do so passed some six weeks ago. This Court need not wait forever for the Petitioner either to heed 

the Court’s directives or to pursue his own case. See, e.g., Moon v. Newsome, 863 F.2d 835, 837 

(11th Cir. 1989) (“While dismissal is an extraordinary remedy, dismissal upon disregard of an 

order, especially where the litigant has been forewarned, generally is not an abuse of discretion.”);

Frank v. Schulson, 782 F. App’x 917, 919 (11th Cir. 2019) (same); LaFavors v. Thayer, 706 F. 

App’x 489, 492 (11th Cir. 2017) (same). And, notably, “[d]espite construction leniency afforded 

pro se litigants, we nevertheless have required them to conform to procedural rules.” Loren v. 

Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). 

 “[A] dismissal without prejudice generally does not constitute an abuse of discretion 

because the affected party may simply re-file.” Johnson v. DuBose, 806 F. App’x 927, 928 (11th 

Cir. 2020). On the other hand, if a dismissal without prejudice “has the effect of precluding [a 

litigant] from refiling his claim due to the running of the statute of limitations[,] the dismissal is 

tantamount to a dismissal with prejudice.” Justice v. United States, 6 F.3d 1474, 1481 n.15 (11th 

Cir. 1993) (cleaned up). Before dismissing a pro se prisoner’s case without prejudice, then, this 

Court must satisfy itself that the dismissal will not preclude the prisoner from refiling his claims 

“due to the running of the statute of limitations.” 

Case 1:20-cv-23156-RKA Document 8 Entered on FLSD Docket 10/20/2020 Page 2 of 6
3 

This dismissal will have no effect on the Petitioner’s right to refile his claims. The Petition, 

after all, was likely time-barred when it was filed. Under 28 U.S.C. § 2244(d)(1)(A), a habeas 

petitioner has one year from “the date on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such review” to file his petition in federal 

court. And “the federal judgment becomes final when th[e U.S. Supreme] Court affirms a 

conviction on the merits on direct review or denies a petition for a writ of certiorari, or, if a 

petitioner does not seek certiorari, when the time for filing a certiorari petition expires.” Gonzalez 

v. Thaler, 565 U.S. 134, 149 (2012) (cleaned up). As the Eleventh Circuit has explained, “the time 

for pursuing review in the Supreme Court of the United States is governed by Supreme Court 

Rules 13.1 and 13.3, which together provide that a petition for a writ of certiorari to review a 

judgment . . . entered by a state court of last resort . . . is timely when it is filed . . . within 90 days 

after entry of the judgment . . . and not from the issuance date of the mandate.” Moore v. Sec’y, 

Fla. Dep’t of Corr., 762 F. App’x 610, 617–18 (11th Cir. 2019) (cleaned up). To summarize: for 

petitioners who do not seek discretionary review from the Florida Supreme Court, the judgment 

becomes final 90 days after the District Court of Appeal enters a judgment affirming the conviction 

and sentence. See Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275–76 (11th Cir. 2006). 

In our case, the Petitioner did not seek discretionary review from the Florida Supreme 

Court within thirty days1

 after the Third District Court of Appeal affirmed his conviction and 

sentence (per curiam) on May 23, 2012. See Sutton v. State, 88 So. 3d 951, 2012 WL 1890505 

(Fla. 3d DCA 2012) (affirming the Petitioner’s conviction and sentence);2 see also Petition [ECF 

                                                            

1

 A motion for discretionary review by the Florida Supreme Court must be filed within thirty days 

of the lower court’s order. See FLA. R. APP. P. 9.120(b). 

2

 Under FED. R. EVID. 201, the Court takes judicial notice of the following facts: 

Case 1:20-cv-23156-RKA Document 8 Entered on FLSD Docket 10/20/2020 Page 3 of 6
4 

No. 1] at 2. The Petitioner’s judgment thus became final on August 21, 2012—and, as a result, the 

Petitioner had until August 20, 2013 to file his habeas petition in federal court.3

 Since he didn’t 

file this Petition until July 27, 2020—almost seven years too late—it is (very likely) time-barred. 

                                                            

(1) the State Court Docket in Case No. F05-008568-B as of October 20, 

2020; and 

(2) the State Appellate Court Dockets in which the Petitioner challenged his 

conviction and sentence in Case No. F05-008568-B, which include: 

a. the State Appellate Court Docket for Case No. 3D07-3101; 

b. the State Appellate Court Docket for Case No. 3D10-2002; 

c. the State Appellate Court Docket for Case No. 3D15-320; and 

d. the State Appellate Court Docket for Case No. 3D20-453. 

The Clerk shall MAKE these documents a part of the record in this case. 

Rule 201 permits a federal court to take judicial notice of state-court records of an inmate’s 

postconviction proceedings because, generally, those records “can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned.” Paez v. Sec’y, Fla. 

Dep’t of Corr., 947 F.3d 649, 652 (11th Cir. 2020). “Rule 201 does not require courts to warn 

parties before taking judicial notice of some fact, but, upon the party’s request, it does require an 

opportunity to be heard after the court takes notice.” Id. “The reason for this caution is that the 

taking of judicial notice bypasses the safeguards which are involved with the usual process of 

proving facts by competent evidence in district court.” Dippin’ Dots, Inc. v. Frosty Bites 

Distribution, LLC, 369 F.3d 1197, 1205 (11th Cir. 2004) (quoting Shahar v. Bowers, 120 F.3d 

211, 214 (11th Cir. 1997)). 

This rule does not bar the Court from taking judicial notice here, though, because the Court 

is not using this (judicially-noticed) evidence to dispose of the Petitioner’s case—or, really, to 

adjudicate any disputed question of fact or law. To the contrary, again, the Court does not here 

decide the (wholly orthogonal) question of the Petition’s timeliness. Instead, the Court cites these 

state-court dockets only to highlight that, irrespective of the Petition’s timeliness, this dismissal

will not be “tantamount to a dismissal with prejudice.” Justice, 6 F.3d at 1481 n.15. 

Nevertheless, the Court will allow the Petitioner 30 days within which to file a motion for 

reconsideration. In that motion, the Petitioner may—though he need not—challenge the Court’s 

decision to take judicial notice of the state-court records, and the Court will review that challenge 

de novo. 3 The Petitioner did (admittedly) file several motions in state court between August 21, 2012 (when 

his state conviction became final) and July 27, 2020 (when he filed this Petition). So, for instance, 

on June 6, 2014, nearly two years after his conviction became final, the Petitioner moved to vacate 

his conviction (and for a new trial) under FLA. R. CRIM. P. 3.850. See Petition at 3. On January 5, 

2015, the Circuit Court of the Eleventh Judicial Circuit for Dade County, Florida, denied that 

motion. See id. On May 4, 2015, the Third District Court of Appeal affirmed that denial. See Sutton 

v. State, 163 So. 3d 1212, 2015 WL 1223238 (Fla. 3d DCA 2015). On August 26, 2019, the 

Petitioner filed a motion for post-conviction relief in the state circuit court. See Sutton v. State, No. 

F05-008568-B (Fla. 11th Cir. Ct. Aug. 26, 2019). But all of this is really beside the point because 

Case 1:20-cv-23156-RKA Document 8 Entered on FLSD Docket 10/20/2020 Page 4 of 6
5 

Recognizing this problem, the Petitioner suggests that he might qualify for one of two 

exceptions to § 2244(d)(1)(A)’s time bar. First, he submits that he is “actually innocent” under the 

doctrine laid out in McQuiggin v. Perkins, 569 U.S. 383 (2013). See Petition at 13–14; cf. 

McQuiggin, 569 U.S. at 392 (“[A] credible showing of actual innocence may allow a prisoner to 

pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural 

bar to relief.”). Second, he points to § 2244(d)(1)(D), which provides that the one-year statute of 

limitations “shall run from . . . the date on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of due diligence.” (emphasis added). 

And, he insists, he could not have discovered the factual predicate of his claim until November 18, 

2018. See Petition at 7. 

Fortunately, this Court need not decide today whether the Petitioner is likely to succeed in 

establishing the application of either (or both) of these exceptions because, either way, this 

dismissal will have no effect on that analysis. After all, if the Petitioner is right—if, in other words, 

the exceptions set forth in either McQuiggin or § 2244(d)(1)(D) apply to his case—then his Petition 

will not be time-barred. In that scenario, of course, this dismissal will not be “tantamount to a 

dismissal with prejudice.” On the other hand, if he’s wrong, his Petition will be dismissed with 

prejudice for reasons wholly unrelated to this Order. In either event, then, this Order will not have 

“the effect of precluding [the Petitioner] from refiling his claim due to the running of the statute 

of limitations,” because—today no less than yesterday—the Petitioner’s claims will survive only 

if he meets one (or both) of the proffered exceptions. 

                                                            

even a proper state-court motion cannot toll an already-expired statute of limitations. See, e.g.,

Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (“[A] state court petition like Tinker’s that 

is filed following the expiration of the federal limitations period cannot toll that period because 

there is no period remaining to be tolled.”) (cleaned up). 

Case 1:20-cv-23156-RKA Document 8 Entered on FLSD Docket 10/20/2020 Page 5 of 6
6 

Two final warnings. First, any future petition will be subject to this Court’s procedural 

requirements, such as timeliness and exhaustion, unless some equitable exception applies. Second, 

“the filing of a petition for habeas corpus in federal court does not toll the statute of limitations.” 

Rhines v. Weber, 544 U.S. 269, 274–75 (2005). 

*** 

Having carefully reviewed this case, the Court hereby ORDERS and ADJUDGES that 

this action is DISMISSED without prejudice. The Clerk of Court shall CLOSE this case. All 

pending motions are DENIED as moot. All pending deadlines and hearings are TERMINATED. 

DONE AND ORDERED in Fort Lauderdale, Florida, this 20th day of October 2020. 

 _________________________________ 

 ROY K. ALTMAN 

 UNITED STATES DISTRICT JUDGE

cc: Christopher Sutton 

B08757 

Mayo Correctional Institution Annex 

Inmate Mail/Parcels 

8784 US Highway 27 West 

Mayo, FL 32066 

PRO SE 

Case 1:20-cv-23156-RKA Document 8 Entered on FLSD Docket 10/20/2020 Page 6 of 6