[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 1 1769 Non

- Argument Calendar

________________________ D.C. Docket No. 8:15

- cv - 00009

- MSS

- AAS

GERSU GUISAO , Petitioner

- Appellant,

versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS , ATTORNEY GENERAL, STA TE OF FLORIDA , Respondent s - Appellee s .

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

________________________ ( March 10, 2020 ) Be fore WILLIAM PRYOR, MARTIN and HULL , Circuit Judges. PER CURIAM:

Case: 18-11769 Date Filed: 03/10/2020 Page: 1 of 42 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 seekin g postconviction relief in state court, h e 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, 2 09

– 1 0 (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 , s ee McQuiggin v. Perkins , 569 U.S. 383, 386 (2013). The court explain ed that Guisao ’s response failed on both fronts , but it gave him a second opportunity to show that his petition

wa s 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.” T he

Case: 18-11769 Date Filed: 03/10/2020 Page: 2 of 43 court determined that Guisao’s second response was insufficient, so it dismissed his petition as untimel y . 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 S tate 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

. W e 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 dismisse d a petition that it ha d determined to be unt imely without ordering the S tate to respond because it provid e d the petitioner with

“ notice of its decision and an opportunity to be heard in opposition

. ” Id. Because of Paez ’s relevance to this appeal, w e ordered the parties to submit supplemental letter briefs address ing its impact

. Guisao admits that Paez “eliminate[s] the argument” in his initial bri ef 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

Case: 18-11769 Date Filed: 03/10/2020 Page: 3 of 44 notice and an opportunity to be heard in opposition before the dismissal

. B ut he argues that Paez is distinguishable

. W ithout explaining why, he contends that because he tried to invoke equitable tolling or the actual

- innocence exception , the court should have ordered the S tate 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 , especia lly because Guisao, not the S tate, 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.
W e AFFIRM the sua sponte dismissal of Guisao ’s petition as untimely

. Case: 18-11769 Date Filed: 03/10/2020 Page: 4 of 4