849 F.3d 1321 (11th Cir. 2017), 12-12653, Patterson v. Secretary, Florida Department of Corrections

Docket Nº:12-12653
Citation:849 F.3d 1321, 26 Fla.L.Weekly Fed. C 1238
Opinion Judge:WILLIAM PRYOR, Circuit Judge:
Party Name:ACE PATTERSON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee
Attorney:For ACE PATTERSON, Petitioner - Appellant: Erica Hashimoto, Georgetown Appellate Litigation Clinic, WASHINGTON, DC; Zack Kelehear, Maria Rivera-Diaz, University of Georgia School of Law, ATHENS, GA; Zaneta Kim, Branden Lewiston, Georgetown University Law Center, Washington, DC. For SECRETARY, FLO...
Judge Panel:Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. ED CARNES, Chief Judge, concurring. JORDAN, Circuit Judge, joined by WILSON, MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges, dissenting. ED CARNE...
Case Date:March 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
SUMMARY

Petitioner was sentenced to life imprisonment and chemical castration after he was convicted of burglary, aggravated kidnapping of a child, and two counts of capital sexual battery. The state court later granted petitioner's motion to correct an illegal sentence on the ground that the trial court failed to comply with the statutory prerequisites for chemical castration. In this appeal, petitioner ... (see full summary)

 
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849 F.3d 1321 (11th Cir. 2017)

26 Fla.L.Weekly Fed. C 1238

ACE PATTERSON, Petitioner-Appellant,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee

No. 12-12653

United States Court of Appeals, Eleventh Circuit

March 3, 2017

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

For ACE PATTERSON, Petitioner - Appellant: Erica Hashimoto, Georgetown Appellate Litigation Clinic, WASHINGTON, DC; Zack Kelehear, Maria Rivera-Diaz, University of Georgia School of Law, ATHENS, GA; Zaneta Kim, Branden Lewiston, Georgetown University Law Center, Washington, DC.

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

For FEDERAL DEFENDER'S OFFICE MIDDLE DISTRICT OF FLORIDA, FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Amici Curiae: Michelle Yard, Conrad Benjamin Kahn, Federal Public Defender's Office, ORLANDO, FL.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. ED CARNES, Chief Judge, concurring. JORDAN, Circuit Judge, joined by WILSON, MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges, dissenting.

OPINION

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WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a consent order that a state prisoner not undergo chemical castration allows him to attack his eighteen-year-old convictions a second time, notwithstanding the statutory

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bar of successive petitions, 28 U.S.C. § 2244(b)(1). In 1998, a Florida jury convicted Ace Patterson of burglary, aggravated kidnapping of a child, and two counts of capital sexual battery. The trial court sentenced him to life imprisonment and chemical castration. Patterson then filed several unsuccessful collateral attacks in state court and a petition for a writ of habeas corpus that the district court dismissed as untimely. In 2009, Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P. 3.800, on the ground that the trial court failed to comply with the statutory prerequisites for chemical castration. After the state and the victim's guardian ad litem consented to Patterson's motion, a Florida court granted it and ordered that he not undergo chemical castration. But the Florida court did not enter a new judgment or order commanding the Secretary of the Department of Corrections to imprison him. Patterson then filed another federal petition that attacked his convictions. The district court dismissed that petition as " second or successive." § 2244(b)(1). Patterson argues that the order that he not undergo chemical castration constitutes a new " judgment," 28 U.S.C. § 2254(b)(1), that makes his latest petition not second or successive under Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). But because Patterson is not " in custody pursuant to," § 2254(b)(1), the consent order that he not undergo chemical castration, that order does not trigger a new round of federal collateral review. See Magwood, 561 U.S. at 332-33. We affirm the dismissal of Patterson's petition as second or successive.

I. BACKGROUND

Ace Patterson is a prisoner in the custody of the Secretary of the Florida Department of Corrections. In 1997, he visited his cousin and his cousin's fiancé e at their home in Madison County, Florida. There, the couple introduced Patterson to their eight-year-old daughter before she went to bed. Patterson ate dinner and spent time with the couple and then left for the night. But he later returned uninvited.

In the middle of the night, Patterson broke into his cousin's home and lifted his cousin's sleeping eight-year-old daughter out of her bed. He carried her outside, brought her to the woods, and raped her. When she tried to scream, Patterson gagged her by sticking his fingers down her throat. When she tried to escape, Patterson grabbed her leg, dragged her back into the dirt, and raped her again. After the assault, the girl found her way back home. Her parents awoke to the sound of their eight-year-old daughter knocking on the front door--crying, covered in dirt, missing a clump of hair, and covered in scratches and bruises. The medical examiners later discovered dirt in her vagina and severe vaginal lacerations.

In 1998, a jury convicted Patterson of burglary, aggravated kidnapping of a child, and two counts of capital sexual battery. The Florida trial court sentenced him to 311 months of imprisonment for the burglary and kidnapping convictions and to consecutive sentences of life imprisonment and chemical castration for the sexual battery convictions. The sentencing form " committed [Patterson] to the custody of the Department of Corrections" and directed the Department to " keep and safely imprison" Patterson for the remainder of his life. A state appellate court later affirmed his convictions and sentences. Patterson v. State, 736 So.2d 1185 (Fla.Dist.Ct.App. 1999).

Patterson then initiated a flurry of collateral attacks against his convictions, including four petitions for writs of habeas corpus in state court and an ethics complaint against the prosecutor who tried his case. His efforts failed, and a Florida appellate

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court warned him that " the filing of any further successive and/or frivolous petitions or appeals may result in the imposition of sanctions." Patterson v. State, 788 So.2d 397 (Fla.Dist.Ct.App. 2001).

In 2006, Patterson filed his first federal petition for a writ of habeas corpus. He alleged that his convictions were secured in violation of the Due Process Clause of the Fourteenth Amendment, the Self-Incrimination Clause of the Fifth Amendment, and the right to effective assistance of counsel under the Sixth Amendment. The district court dismissed his petition as untimely. Ordinarily, that decision would have brought closure to the victim of his crimes, who was by then eighteen years old.

Patterson then pursued a different line of attack. Instead of challenging his convictions, he challenged the portion of his sentence that required chemical castration. Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P. 3.800, on the ground that the trial court did not comply with the statutory prerequisites for chemical castration. The State of Florida and the guardian ad litem for the victim assented to Patterson's motion. With Patterson imprisoned for life, the prosecutor and guardian ad litem viewed chemical castration as a " moot point" and believed that contesting his motion was not worth " expos[ing] the victim to the painful remembrance of the Defendant's actions against her."

In 2009, the Florida trial court granted Patterson's motion in an order that stated, " [T]he Defendant shall not have to undergo [chemical castration] as previously ordered by the Court at his sentencing in the above styled matter." The 2009 order did not vacate Patterson's sentence and replace it with a new one. Nor did it direct the Department of Corrections to hold Patterson or perform any affirmative act.

After his success in state court, Patterson resumed his attack on his 1998 convictions in federal court. In 2011, he filed a second petition for a writ of habeas corpus, which again alleged that his convictions were secured in violation of the Fifth, Sixth, and Fourteenth Amendments. A magistrate judge recommended dismissing Patterson's petition as second or successive because Patterson was " not in custody pursuant to" the 2009 order. The district court adopted that recommendation and dismissed Patterson's petition as second or successive.

A divided panel of this Court reversed. Patterson v. Sec'y, Fla. Dep't of Corr., 812 F.3d 885 (11th Cir. 2016), reh'g en banc granted, opinion vacated, 836 F.3d 1358 (11th Cir. 2016). The panel concluded that Patterson's petition was not second or successive because Patterson was in custody pursuant to a new judgment--the order that he not undergo chemical castration. We vacated the panel opinion and ordered rehearing en banc. We appointed Professor Erica Hashimoto to represent Patterson throughout this appeal. We thank Professor Hashimoto for her excellent brief and oral argument in keeping with the highest tradition of the legal profession.

II. STANDARD OF REVIEW

We review de novo whether a petition for a writ of habeas corpus is second or successive. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011).

III. DISCUSSION

After a state prisoner has had a trial, a direct appeal, and an opportunity for collateral review in the state courts, he typically gets one, and only one, chance to collaterally attack his conviction in federal court. With exceptions not relevant here, section 2244(b) prohibits a state prisoner from filing a " second or successive" habeas

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petition. 28 U.S.C. § 2244(b). This prohibition " is grounded in respect for the finality of criminal judgments." Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Finality, in turn, is essential to achieving the goals of our criminal justice system: " Deterrence depends upon the expectation that 'one violating the law will swiftly and certainly become subject to punishment, just punishment.' Rehabilitation demands that the convicted defendant realize that 'he is justly subject to sanction, that he stands in need of rehabilitation.'" Engle v. Isaac, 456 U.S. 107, 127 n.32, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441, 452 (1963); Henry J. Friendly, Is Innocence...

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