Miller v. Sec'y, Dep't of Corr.
Decision Date | 20 November 2020 |
Docket Number | Case No. 8:20-cv-1130-T-60AEP |
Parties | ARSELES DEVON MILLER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
Court | U.S. District Court — Middle District of Florida |
Before the Court is Respondent's "Motion to Dismiss Petition for Lack of Jurisdiction." (Doc. 8) After reviewing the motion and Miller's response (Doc. 10), the Court finds as follows:
A district court may both preliminarily review a petition for writ of habeas corpus and summarily dismiss the petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief. . . ." Rule 4, Rules Governing Section 2254 Cases. Miller's petition challenges his state court convictions for cocaine trafficking and delivery of cocaine. (Doc. 1 at 1) Miller filed an earlier petition challenging these same convictions. Petition, Miller v. Sec'y, Dep't Corrs., No. 8:08-cv-2530-T-17AEP (M.D. Fla.), ECF No. 1. The district court denied the earlier petition on the merits and denied a certificate of appealability. Order, Id., ECF No. 13.
Because the petition in this case challenges the same state court judgment that Miller challenged in the earlier petition and raises ineffective assistance of counsel claims that he could have raised in the earlier petition (Doc. 1 at 5-22), the petition is "second or successive." 28 U.S.C. § 2244(a); Magwood v. Patterson, 561 U.S. 320, 338-39 (2010).
The district court lacks jurisdiction to review the "second or successive" petition until the court of appeals grants Miller permission to file the petition. 28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147, 157 (2007) (); Holland v. Sec'y, Fla. Dep't Corrs., 941 F.3d 1285, 1287 (11th Cir. 2019) () .1
In the new petition, Miller contends that he challenges a new amended judgment entered on November 21, 2018. (Doc. 1 at 1) The state court granted Miller's motion to correct his sentence in part and awarded him additional credit forpretrial detention. (Doc. 8-2 at 104-05) In the amended judgment, the state court corrected the award of jail credit and imposed Miller's sentences "[e]ffective" August 1, 2005 — the date of his original judgment. (Doc. 8-2 at 20-30, 107-10) Under state law, the correction of the award of jail credit is ministerial and the amended judgment relates back to the date of the original judgment. Hagley v. State, 140 So. 3d 678, 679 (Fla. 5th DCA 2014) (); Luke v. State, 672 So. 2d 654, 655 (Fla. 4th DCA 1996) (); Carson v. State, 489 So. 2d 1236, 1238 (Fla. 2d DCA 1986) ().
DONE and ORDERED in Chambers, in Tampa, Florida, this 20th day of November, 2020.
/s/_________
TOM BARBER
To continue reading
Request your trial