812 F.3d 885 (11th Cir. 2016), 12-12653, Patterson v. Sec'y, Florida Dep't of Corrections

Docket Nº:12-12653
Citation:812 F.3d 885, 25 Fla.L.Weekly Fed. C 1983
Opinion Judge:JORDAN, Circuit Judge.
Party Name:ACE PATTERSON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee
Attorney:For ACE PATTERSON, Petitioner - Appellant: Erica J. Hashimoto, Zack Kelehear, Maria Rivera-Diaz, University of Georgia School of Law, ATHENS, GA. For SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent - Appellee: Bryan G. Jordan, Pam Bondi, Attorney General's Office, TALLAHASSEE, FL.
Judge Panel:Before WILLIAM PRYOR, and JORDAN, Circuit Judges, and HAIKALA,[*] District Judge. HAIKALA, District Judge, concurring specially. WILLIAM PRYOR, Circuit Judge, dissenting. HAIKALA, District Judge, concurring specially: WILLIAM PRYOR, Circuit Judge, dissenting:
Case Date:January 29, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

Petitioner, a Florida prisoner, appealed the district court's dismissal of his 28 U.S.C. 2254 habeas corpus petition as second or successive under 28 U.S.C. 2244(b). The court concluded that, under the court's prior decision in Insignares v. Secretary, petitioner's section 2254 petition is not second or successive within the meaning of section 2244(b). The court concluded that, as in Insignares,... (see full summary)

 
FREE EXCERPT

Page 885

812 F.3d 885 (11th Cir. 2016)

25 Fla.L.Weekly Fed. C 1983

ACE PATTERSON, Petitioner-Appellant,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee

No. 12-12653

United States Court of Appeals, Eleventh Circuit

January 29, 2016

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 4:11-cv-00010-RHB-CAS.

For ACE PATTERSON, Petitioner - Appellant: Erica J. Hashimoto, Zack Kelehear, Maria Rivera-Diaz, University of Georgia School of Law, ATHENS, GA.

For SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent - Appellee: Bryan G. Jordan, Pam Bondi, Attorney General's Office, TALLAHASSEE, FL.

Before WILLIAM PRYOR, and JORDAN, Circuit Judges, and HAIKALA,[*] District Judge. HAIKALA, District Judge, concurring specially. WILLIAM PRYOR, Circuit Judge, dissenting.

OPINION

Page 886

JORDAN, Circuit Judge.

Ace Patterson, a Florida prisoner, appeals the district court's dismissal of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, as second or successive under 28 U.S.C. § 2244(b). As we explain, under our prior decision in Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014), Mr. Patterson's § 2254 petition is not second or successive within the meaning of § 2244(b). We therefore reverse.

I

In 1998, a Florida jury convicted Mr. Patterson of burglary, aggravated kidnapping of a child, and two counts of capital sexual battery. The trial court sentenced Mr. Patterson to 311 months of imprisonment for the burglary and aggravated kidnapping offenses, and consecutive terms of life imprisonment plus chemical castration for the sexual battery offense. His convictions and sentences were affirmed on direct appeal.

Approximately nine years later, in 2007, Mr. Patterson filed a habeas corpus petition pursuant to § 2254. The district court dismissed it as untimely that same year.

After that dismissal, Mr. Patterson filed a motion to correct an illegal sentence with the state trial court under Florida Rule of Criminal Procedure 3.800(a). Mr. Patterson argued in his motion that his sentence of chemical castration was illegal because the trial court had not complied with the statutory requirements of the chemical castration statute, Fla. Stat. § 794.0235. According to Mr. Patterson, the trial court failed to consult a medical expert to determine whether he was an appropriate candidate for chemical castration and failed to specify the duration of the treatment. See Houston v. State, 852 So.2d 425, 428 (Fla. 5th DCA 2003) (explaining that appointing an expert and specifying the duration of treatment are " mandatory requirements" of the chemical castration statute).

In its response, the State conceded the facial sufficiency of the motion and did not oppose Mr. Patterson's request to correct the illegal sentence given the consecutive life terms that had been imposed. On December 14, 2009, the state trial court entered an order granting Mr. Patterson's Rule 3.800 motion. The order repeated all of the sentences initially imposed on Mr. Patterson, and stated that Mr. Patterson would " not have to undergo [m]edroxyprogesterone [a]cetate (MPA) injection, also known as 'Chemical Castration' as previously

Page 887

ordered by the Court at his sentencing in the above styled matter."

Following entry of the new order, Mr. Patterson filed a new § 2254 habeas corpus petition. The district court dismissed this petition as " second or successive" under § 2244(b)(1) because Mr. Patterson had previously filed a habeas corpus petition that had been dismissed as untimely. We granted Mr. Patterson a certificate of appealability to determine whether the state court order deleting chemical castration from his sentence resulted in a new judgment, such that his current habeas corpus petition is not second or successive.

II

Whether a petition for a writ of habeas corpus is second or successive is a question we consider de novo. See Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011). Generally, subject to exceptions not relevant here, claims presented in a second or successive § 2254 petition are subject to dismissal. See Insignares, 755 F.3d at 1278 n.4 (" Subject to two exceptions, § 2244(b) provides that '[a] claim presented in a second or successive habeas corpus application under section 2254 . . . shall be dismissed.'" ). Unfortunately, § 2244(b) does not explain what constitutes a second or successive habeas petition. See id. at 1278.

The Supreme Court stepped into the statutory void in Magwood v. Patterson, 561 U.S. 320, 332-33, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), and held that " the phrase 'second or successive' must be interpreted with respect to the judgment challenged." The Court ruled that " where . . . there is a new judgment intervening between two habeas petitions, an application challenging the resulting new judgment is not second or successive." Id. at 341. Put more simply, " the existence of a new judgment is dispositive." Id. at 338. And the judgment is what " authorizes the prisoner's confinement." Id. at 332.

Mr. Patterson contends that his current § 2254 petition is not second or successive because it is his first petition challenging the new judgment generated by the order deleting chemical castration from his original sentence. He argues that because the state trial court substantively amended his sentence to remove the punishment of chemical castration, he is now in custody pursuant to a new judgment. He contends, therefore, that his current habeas corpus petition challenging this new judgment is not second or successive under Magwood. Based on our prior decision in Insignares, we agree with Mr. Patterson.

A

A Florida jury convicted Mr. Insignares of attempted first-degree murder with a firearm, resulting in a sentence of 40 years of imprisonment, including a 20-year mandatory minimum; criminal mischief, resulting in a concurrent sentence of five years of imprisonment; and discharging a firearm in public, resulting in a concurrent sentence of one year of imprisonment. See Insignares, 755 F.3d at 1276. The trial court later reduced Mr. Insignares' sentence for attempted first-degree murder from 40 years to 27 years, and a state appellate court set aside the criminal mischief conviction. That left Mr. Insignares with a 27-year sentence (including a 20-year mandatory minimum) for his attempted murder conviction, and a concurrent one-year sentence for his discharge of a firearm conviction. See id.

In 2007, following state post-conviction proceedings, Mr. Insignares filed his first § 2254 habeas petition. That petition was

Page 888

dismissed by the district court as untimely, and we dismissed Mr. Insignares' appeal from that dismissal for failure to prosecute. See id. at 1277. After that dismissal, Mr. Insignares--like Mr. Patterson here--filed a motion with the state trial court to correct an illegal sentence under Rule 3.800. See id. In 2009, the state trial court granted that motion and issued a new judgment reducing Mr. Insignares' mandatory-minimum sentence for the attempted-murder conviction from 20 years to 10 years, and otherwise leaving his convictions and remaining sentences intact. See id. As a result of the state trial court's Rule 3.800 order Mr. Insignares had a shorter mandatory minimum sentence, but his total custodial sentence of 27 years remained the same.

In 2011, following the entry of a corrected sentence and new judgment by the state trial court, Mr. Insignares--like Mr. Patterson here--filed another § 2254 habeas petition in the district court. See id. Mr. Insignares--like Mr. Patterson here--asserted claims related to his initial convictions, and did not contend that there was anything wrong with the new judgment itself. See id. (" Notably, [Mr. Insignares] alleged the same errors in his 2007 [first habeas] petition as he has in his second habeas petition." ).

Applying the Supreme Court's decision in Magwood, the district court determined that Mr. Insignares' new habeas corpus petition was not second or successive, and denied the petition on the merits. See id. On appeal, the State argued that, " [b]ecause [Mr.] Insignares had filed a federal habeas petition in 2007 challenging his conviction and raising the same issues as [in] his 2011 petition," the later petition was second or successive and the district court did not have jurisdiction to adjudicate it. See id. at 1278. We rejected the State's argument.

Relying on Ferreira v. Secretary, 494 F.3d 1286, 1288 (11th Cir. 2007), we affirmed the district court's determination that Mr. Insignares' new habeas corpus petition was not " second or successive" under Magwood. We held that " [t]he 2009 resentencing by the state judge resulted in a new judgment, and [Mr. Insignares' 2011 petition was the] first federal challenge to that 2009 judgment." Insignares, 755 F.3d at 1281. And we did so even though the new judgment was beneficial to Mr. Insignares and even though the claims asserted by Mr. Insignares challenged his initial convictions and not the new judgment. See id. at 1277.

We declined to follow the Seventh Circuit's decision in Suggs v. United States, 705 F.3d 279, 282-284 (7th Cir. 2013), which concluded that a second motion to vacate is " second or successive," even where the defendant has been resentenced, if the motion attacks the underlying conviction and not the new sentence. We phrased our holding as follows: " [W]hen a habeas petition is the first to challenge a new judgment, it is not 'second or successive' regardless of whether its claims challenge the sentence or the underlying conviction." Id. at 1281. We then addressed Mr. Insignares' claims (several claims of ineffective assistance of counsel, a claim that a juror had been sleeping at trial, and a claim of cumulative error) and rejected them on the merits, even though the first habeas petition asserting those same...

To continue reading

FREE SIGN UP