[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11087

Non-Argument Calendar

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D.C. Docket No. 9:18-cv-80067-WPD

JOHN A. TOTH, 

 Petitioner-Appellant,

 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL OF THE STATE OF FLORIDA, 

 Respondents-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(June 13, 2019)

Before WILLIAM PRYOR, MARTIN, GRANT, Circuit Judges.

PER CURIAM: 

John A. Toth, a Florida prisoner proceeding pro se, appeals the District 

Court’s sua sponte dismissal of his 28 U.S.C. § 2254 petition as time-barred. After 

careful consideration, we affirm.

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Toth filed a § 2254 application for a writ of habeas corpus in federal district 

court, challenging the constitutionality of his Florida convictions and 10-year 

prison sentence for arson and related crimes. A magistrate judge sua sponte

recommended dismissing Toth’s petition as time-barred. See Jackson v. Sec’y for 

Dep't of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (per curiam) (holding that 

district courts “may determine that a section 2254 petition is time-barred even 

though the state did not raise the issue”). To arrive at this recommendation, the 

magistrate judge took judicial notice of online records from Toth’s state court case. 

The district court adopted the magistrate’s report and recommendation in full and, 

relying on the same judicially noticed documents, dismissed Toth’s petition as 

time-barred. The court also ruled, in the alternative, Toth’s petition was due to be 

denied on the merits. The district court issued no certificate of appealability 

(“COA”). See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a 

[COA], an appeal may not be taken to the court of appeals from . . . the final order 

in a habeas corpus proceeding in which the detention complained of arises out of 

process issued by a State court.”). 

Toth obtained a COA from this Court on two issues: whether the district 

court erred in ruling sua sponte without reviewing the complete, official state court 

record that Toth’s § 2254 petition (1) was time-barred and (2) failed on the merits. 

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Our precedent compels the conclusion that Toth abandoned any argument 

challenging the district court’s ruling that his § 2254 was petition time-barred 

without reviewing the official and complete state court record. Though we read 

pro se briefs liberally, we must deem arguments not raised in an initial brief or 

raised for the first time in a reply brief abandoned. Timson v. Sampson, 518 F.3d 

870, 874 (11th Cir. 2008) (per curiam) (citing Horsley v. Feldt, 304 F.3d 1125, 

1131 n.1 (11th Cir. 2002) and Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) 

(per curiam)).

Upon careful review of Toth’s initial brief on appeal, we can find only 

“passing references” to this argument, which are insufficient to preserve this claim 

for our review. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th 

Cir. 2014). The first time he “plainly and prominently” raises this argument is in 

his reply brief. Id. at 681 (quotation marks omitted). But this does not preserve 

the issue for appellate review, even though Toth is proceeding pro se. See Timson, 

518 F.3d at 874. Thus, we must affirm the district court’s judgment. See Sapuppo, 

739 F.3d at 680 (“When an appellant fails to challenge properly on appeal one of 

the grounds on which the district court based its judgment, he is deemed to have 

abandoned any challenge of that ground, and it follows that the judgment is due to 

be affirmed.”). 

AFFIRMED.

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MARTIN, Circuit Judge, concurring:

Our precedent requires us to affirm the District Court’s dismissal of Mr. 

Toth’s habeas petition without fully considering the merits of his appeal. But that 

result was not inevitable. Had Mr. Toth been represented by counsel, I suspect he 

would have properly presented the two issues on which we allowed him an appeal. 

This would have given him the benefit of full adversarial testing in a matter of the 

utmost importance to him as well as our legal system. See Lonchar v. Thomas,

517 U.S. 314, 324, 116 S. Ct. 1293, 1299 (1996) (“Dismissal of a first federal 

habeas petition is a particularly serious matter, for that dismissal denies the 

petitioner the protections of the Great Writ entirely, risking injury to an important 

interest in human liberty.”).

It wasn’t for lack of trying on Mr. Toth’s part. He told us he “lacks the 

proper adequate resources to fully, fairly, and thoroughly address the complex 

issues related to this case.” He asked this Court to appoint him “the competent 

assistance of legal counsel” to assist him in his appeal. I view Mr. Toth’s request 

as eminently reasonable, given the “immense complexities of federal habeas 

corpus law.” Duncan v. Walker, 533 U.S. 167, 184 n.2, 121 S. Ct. 2120, 2130 n.2 

(2001) (Souter, J., concurring). 

While that request was pending in this Court, Mr. Toth filed his initial 

appellate brief himself. Perhaps owing to the “immense complexities of federal 

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habeas corpus law,” id., he failed to argue the only issues this Court permitted him 

to appeal. Over a month after he filed his brief, this Court denied Mr. Toth’s 

motion for appointment of counsel. The order denying his request reasoned that 

“[t]he interests of justice do not require that counsel be appointed in this case,” as 

“[Mr.] Toth’s filings in both the district court and this Court show that he is able to 

adequately present his legal arguments and cite to legal authority,” and as the 

issues on appeal were “not so novel or complex as to require” assistance of a 

trained lawyer. 

I regret that I did not seek to have counsel appointed for Mr. Toth at the time 

I granted his Certificate of Appealability (“COA”). The questions initially 

presented in his appeal were novel—there was no Circuit precedent answering 

them. See Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993) (indicating that 

appointment of counsel is warranted in a civil case involving complex or novel 

legal issues). Mr. Toth’s legal filings demonstrated that he was not able to 

adequately present his legal arguments. His Motion for a COA did not even 

identify the legal issue on which I granted him a COA. Beyond that, Mr. Toth had 

already filed his initial brief at the time of this Court’s order opining that he could 

represent himself, and he had clearly been unable to present the only arguments 

relevant to this appeal. As the order denying Mr. Toth’s request for counsel 

recognized, “[t]he key [question in determining whether counsel should be 

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appointed] is whether the pro se litigant needs help in presenting the essential 

merits of his or her position to the court.” Id. Clearly, Mr. Toth did need that help. 

Nonetheless, we must evaluate his pro se pleadings, and they present no way 

forward for his § 2254 petition. 

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