Osvaldo Lazo v. Secretary, Florida Department of Corrections ( 2022 )


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  • USCA11 Case: 21-11779     Date Filed: 09/15/2022   Page: 1 of 12
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-11779
    Non-Argument Calendar
    ____________________
    OSVALDO LAZO,
    Petitioner-Appellant,
    versus
    SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Southern District of Florida
    D.C. Docket No. 0:21-cv-60554-MGC
    ____________________
    USCA11 Case: 21-11779             Date Filed: 09/15/2022     Page: 2 of 12
    2                        Opinion of the Court                    21-11779
    Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Osvaldo Lazo, a Florida prisoner proceeding pro se, appeals
    the district court’s dismissal without prejudice of his pro se 
    28 U.S.C. § 2254
     federal habeas petition for failure to comply with a
    court order. He argues that the district court abused its discretion
    in dismissing his petition because he did not willfully and
    intentionally defy the district court and the page limitation
    imposed by the court conflicts with the instructions on the § 2254
    form. He also argues that the dismissal functioned as a dismissal
    with prejudice because any future § 2254 petition would be time-
    barred. 1 Under the circumstances of this case, we conclude that
    the district court abused its discretion, and we vacate and remand
    for further proceedings.
    I.       Background
    In 2013, Lazo was convicted in Florida of two counts of
    sexual battery and one count of lewd and lascivious molestation.
    Lazo pursued a direct appeal and postconviction relief in the
    Florida courts. Florida’s Fourth District Court of Appeal
    summarily affirmed the denial of Lazo’s postconviction motion on
    April 23, 2020. Lazo v. State, 
    294 So. 3d 890
     (Fla. 4th DCA 2020)
    1 Lazo also raised arguments concerning the merits of his underlying claims.
    We do not reach these issues.
    USCA11 Case: 21-11779        Date Filed: 09/15/2022      Page: 3 of 12
    21-11779                Opinion of the Court                         3
    (table). The mandate issued on May 22, 2020, at which time the
    one-year federal habeas statute of limitations started running.
    Thus, Lazo had until May 22, 2021, to file a timely § 2254 petition.
    On March 4, 2021, Lazo filed a timely 34-page pro se § 2254
    habeas petition in the United States District Court for the Southern
    District of Florida, purporting to raise five issues. A few days later,
    the district court sua sponte ordered Lazo to file an amended
    petition because, among other things, (1) he had not used the
    district court’s designated form for § 2254 petitions; (2) the petition
    was unclear and contained “vague, conclusory, and rambling
    allegations” and combined multiple claim in single headings; and
    (3) the petition was 34 pages, which exceeded the district court’s
    local rule that imposed a “20-page limits for motions and legal
    memoranda.” With regard to the local page limitation rule, the
    district court explained that, although the rule did “not expressly
    apply to § 2254 petitions, the [c]ourt look[ed] to it as a guide when
    exercising its inherent authority to impose page limits on § 2254
    petitions” and that the excessive length of Lazo’s 34-page petition
    had “interfered with the [c]ourt’s ability to efficiently and
    effectively screen the Petition” as required by the applicable habeas
    rules.
    Thus, the district court ordered that Lazo file an amended
    petition using the court’s designated § 2254 form, and that his
    USCA11 Case: 21-11779            Date Filed: 09/15/2022        Page: 4 of 12
    4                         Opinion of the Court                      21-11779
    petition could not contain more than eight grounds for relief,2 had
    to comply with all the local rules including text size, margins, and
    line spacing, and could not refer to or incorporate by reference
    arguments made in the initial petition or “any other documents.”
    The district court also directed that the amended § 2254 petition
    had to be docketed by the district court by April 12, 2021, and that
    if it was not docketed by that date, the case would be dismissed.
    The court emphasized that it would not use the date on which
    Lazo signed the amended petition, or the date he submitted it to
    prison authorities for mailing as the filing date. The court
    cautioned that “failure to comply with this Order will result in
    dismissal of this case, and that no further amendments will be
    permitted.” (emphasis in original).
    Notably, the district court attached to its order the
    designated 16-page § 2254 form and related instructions. These
    instructions provide that a petitioner “must include all the grounds
    for relief from the conviction or sentence” being challenged, and
    that a failure to set forth all grounds may result in the petitioner
    being barred from pursuing those grounds at a later date.
    Relatedly, the instructions provide that a petitioner “may submit
    additional pages if necessary” and that if the petitioner “want[ed]
    to submit any legal arguments, [the petitioner] must submit them
    in a separate memorandum.”
    2 The district court did not cite to any law or rule in support of this number-
    of-claims limitation
    USCA11 Case: 21-11779           Date Filed: 09/15/2022        Page: 5 of 12
    21-11779                  Opinion of the Court                              5
    Lazo requested the appointment of counsel, but his motion
    was denied. On April 12, 2021, Lazo filed an amended § 2254
    petition using the designated form. He attached additional pages
    of supporting argument for his claims, which brought the amended
    petition to a total of 44 pages.
    The following day, the district court dismissed the petition
    without prejudice for failing to comply with the court’s prior order.
    Specifically, the district court concluded that dismissal was
    appropriate because it had warned Lazo that failure to comply with
    its order in full would result in dismissal of his case, and Lazo had
    disregarded the district court’s 20-page limitation, as well as its
    instruction that he not incorporate by reference arguments from
    other documents. 3 The court noted that, at the time Lazo filed the
    initial petition in March 2021, he had only 79 days remaining under
    the Antiterrorism and Effective Death Penalty Act’s (AEDPA)
    applicable one-year statute of limitations, and that “the filing of this
    federal habeas case did not toll the statute of limitations.”
    Accordingly, the court cautioned that any delay in refiling a
    separate action may result in his petition being time-barred.
    On April 26, 2021, Lazo filed a second amended pro se § 2254
    petition that did not include any additional pages and complied
    with the district court’s 20-page limitation. On May 3, 2021, with
    3 In Claim 8, Lazo attempted to incorporate by reference “the additional facts
    and legal arguments” made in his state court proceedings with regard to Claim
    8.
    USCA11 Case: 21-11779        Date Filed: 09/15/2022     Page: 6 of 12
    6                      Opinion of the Court                 21-11779
    less the 20 days left in the one-year limitation period, the district
    court struck the second amended petition, explaining that it had
    not granted Lazo leave to amend, and he would need to file a new
    separate action if he wanted to pursue § 2254 relief.
    The next day, Lazo filed a motion to alter or amend
    judgment, pursuant to Federal Rule of Civil Procedure 59, or in the
    alternative a motion to reopen the case. He asserted that he was a
    Cuban native, with limited education and English proficiency, and
    he had difficulty understanding the district court’s prior orders, but
    that he had attempted to comply and did not intend to defy or
    disregard the court’s directives. He also emphasized that the
    court’s failure to reopen his case could have an adverse effect on
    AEDPA[‘s] time limitation period,” and he urged the court to
    accept the second amended petition.
    The district court denied his motion the same day,
    explaining that it found Lazo’s arguments concerning his limited
    English proficiency and ability to understand the court’s prior
    orders “unpersuasive,” noting that his prior filings were all
    submitted in English and that he had complied with other
    directives from the court, such as the instruction to pay the filing
    fee or file a motion for permission to proceed in forma pauperis.
    And the district court again cautioned Lazo that the one-year
    limitations period was not tolled.
    With just two days left in the limitations period, Lazo filed a
    new petition on May 18, 2021. This petition was not labeled a
    “third” petition, but instead was simply labeled “petition” and it
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    21-11779                Opinion of the Court                           7
    complied with the district court’s previously ordered
    requirements. The district court struck this petition as well on May
    25, 2021, at which point Lazo’s one-year statute of limitations for
    filing a timely § 2254 petition had expired.
    Meanwhile, Lazo filed a notice of appeal from both the order
    dismissing his amended § 2254 petition and the denial of his motion
    for reconsideration. The district court construed the notice of
    appeal as a request for a certificate of appealability, which it
    denied. 4 This appeal followed.
    II.     Discussion
    We review a district court’s dismissal of an action for failure
    to comply with court rules for abuse of discretion. Betty K
    Agencies, Ltd. v. M/V MONADA, 
    432 F.3d 1333
    , 1337 (11th Cir.
    2005). We review the denial of a motion for reconsideration under
    Rule 59 for abuse of discretion. Mincey v. Head, 
    206 F.3d 1106
    ,
    1137 (11th Cir. 2000).
    “A district court has inherent authority to manage its own
    docket so as to achieve the orderly and expeditious disposition of
    cases.” Equity Lifestyle Prop., Inc. v. Fla. Mowing & Landscape
    Serv., Inc., 
    556 F.3d 1232
    , 1240 (11th Cir. 2009) (quotation omitted).
    Thus, under Federal Rule of Civil Procedure 41(b), a “court may
    dismiss [an action] if the plaintiff fails to . . . comply with a court
    4 We denied a COA as unnecessary under Hubbard v. Campbell, 
    379 F.3d 1245
    (11th Cir. 2004).
    USCA11 Case: 21-11779        Date Filed: 09/15/2022      Page: 8 of 12
    8                       Opinion of the Court                 21-11779
    order.” 
    Id.
     However, we have repeatedly cautioned that “[p]ro se
    habeas petitioners do not stand in the same position as counseled
    petitioners,” and are “often unlearned in the law and unfamiliar
    with the complicated rules of pleading.” Gunn v. Newsome, 
    881 F.2d 949
    , 961 (11th Cir. 1989). Therefore, “courts should construe
    a habeas petition filed pro se more liberally than one drawn up by
    an attorney,” and “we do not impose on [pro se petitioners] the
    same high standards of the legal art which we might place on the
    members of the legal profession.” 
    Id.
     (quotation omitted).
    Local Rule 7.1(c)(2) for the Southern District of Florida
    provides that “[a]bsent permission of the [c]ourt, neither a motion
    and its incorporated memorandum of law . . . shall exceed twenty
    (20) pages.” As the district court noted in its order below, this Rule
    does not expressly apply to habeas petitions. Similarly, the Rules
    Governing § 2254 petitions do not set forth any page limitation.
    See generally Rules Governing Section 2254 Proceedings in United
    States District Courts. Rather, the Rules Governing § 2254
    petitions provide that “[t]he petition must substantially follow” the
    prescribed form, id. Rule 2(d), and must “specify all the grounds for
    relief available,” “state the supporting facts for each ground,” “state
    the relief requested,” “be printed, typewritten, or legibly
    handwritten,” and signed under penalty of perjury, id. Rule 2(c).
    Additionally, the instructions for the designated § 2254 form
    provide that a petitioner “may submit additional pages if
    necessary” and that if the petitioner “wants to submit any legal
    USCA11 Case: 21-11779       Date Filed: 09/15/2022     Page: 9 of 12
    21-11779               Opinion of the Court                        9
    arguments, [the petitioner] must submit them in a separate
    memorandum.”
    We have held that pro se litigants are “required . . . to
    conform to procedural rules,” Albra v. Advan, Inc., 
    490 F.3d 826
    ,
    829 (11th Cir. 2007), and that “dismissal upon disregard of an order,
    . . . where the litigant has been forewarned, generally is not an
    abuse of discretion. Moon v. Newsome, 
    863 F.2d 835
    , 837 (11th
    Cir. 1989). Nevertheless, dismissal is an “extraordinary remedy.”
    Id.; see also Flury v. Daimler Chrysler Corp., 
    427 F.3d 939
    , 944
    (11th Cir. 2005) (explaining that dismissal is “the most severe
    sanction available to a federal court, and therefore should only be
    exercised where there is a showing of bad faith and where lesser
    sanctions will not suffice”). Thus, we have cautioned that the
    “extraordinary remedy” of dismissal of a pro se party’s action for
    failure to comply with a court order should be reserved for very
    select circumstances—such as when a pro se party is willfully
    violating a court’s order or is repeatedly engaging in misconduct
    and there is no indication of a willingness to comply. Moon, 
    863 F.2d at
    838–39 (dismissal appropriate where pro se plaintiff “had
    been repeatedly and stubbornly defiant,” refused to acknowledge
    court’s authority, and expressed no willingness to comply with
    numerous court orders); Betty K. Agencies, 
    432 F.3d at 1338
    (dismissal appropriate where plaintiff repeatedly violated rules and
    ignored numerous court orders and where court had tried lesser
    sanctions on two prior occasions). Additionally, where a dismissal
    “has the effect of precluding [plaintiff] from refiling his claim due
    USCA11 Case: 21-11779           Date Filed: 09/15/2022         Page: 10 of 12
    10                         Opinion of the Court                      21-11779
    to the running of the statute of limitations . . . [t]he dismissal [is]
    tantamount to a dismissal with prejudice.” Justice v. United States,
    
    6 F.3d 1474
    , 1482 n.15 (11th Cir. 1993) (quotations omitted). A
    dismissal with prejudice is “a sanction of last resort” and is “proper
    only where there is a clear record of delay or willful contempt.” 
    Id.
    (quotation omitted).
    Here, in light of the one-year limitations period governing
    the filing of § 2254 petitions, due to the dismissal without prejudice
    of Lazo’s amended § 2254 petition, the denial of his motion for
    reconsideration, and the present appeal period, any subsequent
    § 2254 petition would be untimely. Under these circumstances, the
    dismissal without prejudice operated effectively as a dismissal with
    prejudice. And the record does not support that Lazo willfully
    violated the district court’s order. Rather, following the district
    court’s order, Lazo resubmitted his § 2254 petition using the 16-
    page designated form and submitted 28 pages of supporting
    memoranda. Although the petition still exceeded the local rule
    page-limitation rule, 5 it is clear that Lazo was trying to comply
    with the district court’s directives.
    5 As discussed above, nothing in the local rules indicates that the 20-page
    limitation applies to habeas petitions, and it does not appear that this rule is
    regularly or uniformly enforced in habeas proceedings. Nevertheless, for
    purposes of this opinion, we will assume that the rule applies.
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    21-11779                   Opinion of the Court                               11
    Furthermore, within two weeks of the district court’s
    dismissal of his amended petition, Lazo submitted a second
    amended petition that complied with the page limitation in
    question, along with a motion for reconsideration, explaining that
    due to his limited education and proficiency in English, he had not
    understood the prior order and did not intentionally defy the court.
    Yet, despite the evidence of his efforts to comply, the district court
    struck the second amended petition, stating that Lazo was not
    given leave to amend and needed to file a separate action to pursue
    § 2254 relief, and denied his motion for reconsideration. 6
    Thereafter, with just a few days left in the limitations period, Lazo
    again filed what appears to have been his attempt at a new § 2254
    petition, 7 but again the district court struck this filing. While
    Lazo’s pleading and filing efforts did not meet the “same high
    standards” that we might expect of counsel, it is clear that his
    efforts to comply were sincere. Given that the record does not
    support that Lazo willfully violated the district court’s order and
    because under the circumstances, Lazo would now be foreclosed
    from pursuing any federal habeas relief due to the expiration of the
    6 We note that instead of striking the second amended petition, in light of
    Lazo’s pro se status, the district court could have instructed the clerk of court
    to docket the second amended petition as a new action.
    7 The filing was labeled simply “petition” as opposed to a “third” or
    “amended” petition, which leads us to believe that he was attempting to file a
    new action.
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    12                         Opinion of the Court                        21-11779
    statute of limitations, we vacate and remand for further
    proceedings.8
    VACATED AND REMANDED.
    8 We note there are other aspects of the district court’s order directing Lazo
    to file an amended petition that cause us concern and demonstrate an abuse
    of discretion. First, the district court ordered that Lazo could not assert more
    than eight grounds for relief. No such limitation exists in the local rules or the
    rules governing § 2254 proceedings. Second, the district court stated that
    Lazo’s amended petition had to be docketed by a certain date, and that it
    would not consider the date he submitted the petition to prison authorities for
    mailing as the date of filing. But the Supreme Court has held, in the context
    of habeas petitions brought by federal prisoners, that a pro se prisoner’s
    motion is deemed filed on the date the prisoner delivers the motion to prison
    authorities for mailing. Houston v. Lack, 
    487 U.S. 266
    , 276 (1988). And we
    have held that this same “mailbox rule” applies to a state prisoner’s habeas
    petition. Taylor v. Williams, 
    528 F.3d 847
    , 851 (11th Cir. 2008). The district
    court does not have the authority to disregard this line of precedent.