[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11769

Non-Argument Calendar

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D.C. Docket No. 8:15-cv-00009-MSS-AAS

GERSU GUISAO, 

 Petitioner-Appellant,

 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

 Respondents-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(March 10, 2020)

Before WILLIAM PRYOR, MARTIN and HULL, Circuit Judges.

PER CURIAM: 

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Gersu Guisao, 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 procedurally erred in sua 

sponte dismissing Guisao’s petition as untimely without ordering the State to 

respond. We affirm. 

Guisao is serving a life sentence in Florida for sexual battery. After seeking 

postconviction relief in state court, he filed a petition for a writ of habeas corpus in 

federal court. See 28 U.S.C. § 2254. The district court conducted a preliminary 

review of Guisao’s petition, see Rules Governing § 2254 Cases, Rule 4, and 

concluded that it was untimely. See 28 U.S.C. § 2244(d). The court ordered Guisao 

to show cause why it should not dismiss his petition on that ground and warned 

him that it would dismiss his petition if he did not timely respond. See Day v. 

McDonough, 547 U.S. 198, 209–10 (2006). Guisao argued that he was entitled to 

equitable tolling, see Holland v. Florida, 560 U.S. 631, 645 (2010), and that the 

actual-innocence exception to the limitations period applied, see McQuiggin v. 

Perkins, 569 U.S. 383, 386 (2013). The court explained that Guisao’s response 

failed on both fronts, but it gave him a second opportunity to show that his petition 

was timely. It warned him that “[a]n insufficient response, or the failure to 

respond, . . . will result in the dismissal of this action without further notice.” The 

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court determined that Guisao’s second response was insufficient, so it dismissed 

his petition as untimely.

The only issue on appeal is whether the district court procedurally erred 

when it sua sponte dismissed Guisao’s petition as untimely without ordering the 

State to respond. We review a district court’s decision to sua sponte raise the 

untimeliness of a petition for abuse of discretion. Paez v. Sec’y, Fla. Dep’t of 

Corr., 947 F.3d 649, 651 (11th Cir. 2020). After the parties filed their briefs, we 

issued a new opinion in Paez. We held that untimely petitions are subject to 

dismissal at the screening stage under Rule 4, which requires district courts to 

dismiss petitions that are “legally insufficient on [their] face,” if the court provides 

the petitioner with notice and an opportunity to be heard. Id. at 653 (internal 

quotation marks omitted). We explained that the district court did not abuse its 

discretion when it dismissed a petition that it had determined to be untimely 

without ordering the State to respond because it provided the petitioner with 

“notice of its decision and an opportunity to be heard in opposition.” Id. Because 

of Paez’s relevance to this appeal, we ordered the parties to submit supplemental 

letter briefs addressing its impact. 

Guisao admits that Paez “eliminate[s] the argument” in his initial brief about 

the sua sponte dismissal of his petition because it is plain from the face of his 

petition that he filed it “almost a year too late,” and the district court gave him 

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notice and an opportunity to be heard in opposition before the dismissal. But he 

argues that Paez is distinguishable. Without explaining why, he contends that

because he tried to invoke equitable tolling or the actual-innocence exception, the 

court should have ordered the State to respond. 

His attempt to distinguish Paez is unpersuasive. It is clear from the face of 

Guisao’s petition and the judicially noticed online docket entries for his state 

proceedings, see id. at 652–53, that he filed his petition well beyond the one-year 

limitations period. The district court gave him two opportunities to argue to the 

contrary, and it warned him that an insufficient response would result in dismissal. 

We discern no error in the district court’s ruling that Guisao’s responses failed to 

show that his petition was timely. Paez establishes that the district court did not 

abuse its discretion, especially because Guisao, not the State, had the burden of 

establishing either equitable tolling or the actual-innocence exception and 

possessed the necessary information. See McQuiggin, 569 U.S. at 386; Holland, 

560 U.S. at 649. 

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

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