Osbourne v. Sec'y, Fla. Dep't of Corr., No. 18-11004

• Decision Date: 07 August 2020
• Docket Number: No. 18-11004
• Citation: 968 F.3d 1261
• Parties: Demetrius OSBOURNE, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

968 F.3d 1261

Demetrius OSBOURNE, Petitioner-Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 18-11004

United States Court of Appeals, Eleventh Circuit.

August 7, 2020

Randee J. Golder, Randee J. Golder, PA, BOYNTON BEACH, FL, for Petitioner - Appellant.

Melynda Layne Melear, Melanie Dale Surber, Attorney General's Office, WEST PALM BEACH, FL, Pam Bondi, Office of the Attorney General, TALLAHASSEE, FL, for Respondents - Appellees.

Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge:

Demetrius Osbourne, a Florida prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus for lack of jurisdiction as an unauthorized second or successive petition. He argues on appeal that his petition was not second or successive because a new judgment was entered in 2014. As discussed in further detail below, the state trial court granted in part his motion to correct sentence, pursuant to Fla. R. Crim. P. 3.800(a), and issued an amended sentence nunc pro tunc, which removed a 10-year mandatory minimum term on one of his counts of conviction. After careful review, we conclude that because the amended sentence was entered nunc pro tunc under Florida law, it related back to the date of the original judgment and it was not a "new judgment" for purposes of 28 U.S.C. § 2244(b). Consequently, the district court properly determined that Osbourne's latest § 2254 petition was an unauthorized second or successive petition over which it lacked jurisdiction, and we affirm.

I. Background

In 2003, a Florida jury convicted Osbourne of robbery with a deadly weapon (firearm) and aggravated battery with a deadly weapon (a firearm). He was sentenced to life imprisonment on the robbery offense and a concurrent 15-year term on the aggravated battery offense. Each respective sentence included a 10-year mandatory-minimum term of imprisonment for possession of a firearm.¹ Following his sentencing, Osbourne vigorously pursued state postconviction relief, and in 2010, he filed a § 2254 federal habeas petition, which was denied on the merits.

Subsequently, in May 2014, Osbourne filed a pro se motion to correct sentence in the state trial court, pursuant to Florida Rule of Criminal Procedure 3.800(a),² in which he argued, among other things, that the 10-year mandatory-minimum terms imposed on each count were illegal because the charging information failed to allege actual possession of the firearm or reference the relevant firearm enhancing statute. Following the State's response, the trial court granted his motion in part and denied it in part. Specifically, the trial court agreed that the 10-year mandatory-minimum term for the robbery count "may have be in error, although moot" because more than 10 years had passed since Osbourne's sentencing. Nevertheless, the trial court ordered that an "amended sentence" be entered, "nunc pro tunc to April 21, 2003, to reflect the deletion of the ten year mandatory minimum on [Osbourne's] robbery conviction (count one) only. The defendant's sentence remains unchanged in all other respects." Notably, the sentencing form used by the trial court utilized various boxes to indicate the action taken, which included options for a "modified," "amended," or "corrected" sentence, or a "resentence." The trial court selected "amended" sentence with the notation that the sentence was "[a]mended to reflect Court Order for deletion of the ten year mandatory firearm minimum." The form also provided that the amended sentence was imposed "nunc pro tunc" to April 21, 2003—the date of Osbourne's original judgment. Osbourne appealed the denial in part of his Rule 3.800 motion and Florida's Fourth District Court of Appeal summarily affirmed without written opinion.

Thereafter, in July 2016, Osbourne filed the underlying pro se § 2254 petition for a writ of habeas corpus, asserting claims of ineffective assistance of trial counsel and that the remaining 10-year mandatory-minimum term on the aggravated battery conviction violates the due process clause. He maintained that the petition was timely because he "was resentenced and a new judgment was entered" in 2014. In response, the State argued that the district court should dismiss the petition as an unauthorized second or successive § 2254 petition because Osbourne had unsuccessfully litigated his initial § 2254 petition in 2010 and Osbourne had not been resentenced or subject to a new judgment. Rather, the 2014 judgment was simply the "ministerial act of correcting the original judgment nunc pro tunc."

Upon review, the magistrate judge recommended that Osbourne's § 2254 petition be dismissed as an unauthorized second or successive petition because the 2014 order "had no effect on [Osbourne's] underlying convictions or sentences, and did not result in a ‘new judgment’ for purposes of § 2244(b)." The district court adopted the magistrate's report and recommendation over Osbourne's objections. This appeal followed.³

II. Standard of Review

"We review de novo whether a petition for a writ of habeas corpus is second or successive." Patterson v. Sec'y, Fla. Dep't of Corr. , 849 F.3d 1321, 1324 (11th Cir. 2017) (en banc ).

III. Discussion

With certain exceptions not relevant here, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that, before a petitioner may file a second or successive § 2254 habeas petition, the petitioner first must obtain an order from this Court authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Absent authorization from this Court, the district court lacks jurisdiction to consider a second or successive habeas petition. See Farris v. United States , 333 F.3d 1211, 1216 (11th Cir. 2003). However, "where ... there is a ‘new judgment intervening between the two habeas petitions,’ an application challenging the resulting new judgment is not ‘second or successive[.]’ " See Magwood v. Patterson , 561 U.S. 320, 341–42, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010) (quoting Burton v. Stewart , 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) ). In other words, "[w]hether a petition is second or successive depends on ‘the judgment challenged.’ " Patterson , 849 F.3d at 1325 (en banc) (quoting Insignares v. Sec'y, Fla. Dep't of Corr. , 755 F.3d 1273, 1278 (11th Cir. 2014) ). The conviction and sentence together make up the criminal judgment. See Burton v. Stewart , 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007). Thus, in Osbourne's case, we must determine whether the 2014 amended sentence resulted in a new judgment for purposes of § 2244.

We start with what constitutes a new judgment. The Supreme Court addressed this issue in Magwood . After being sentenced to death for murder and exhausting postconviction relief in the Alabama state courts, Magwood filed a federal § 2254 petition challenging both his conviction and his sentence. 561 U.S. at 323, 130 S.Ct. 2788. Magwood's § 2254 petition was conditionally granted, with directions that Magwood either be released or resentenced. Id. The state trial court subsequently held a full resentencing, but ultimately imposed the same sentence. Id. at 323, 326, 130 S.Ct. 2788. After again challenging his new death sentence in state court, Magwood filed another § 2254 petition raising a fair-warning claim and an ineffective-assistance-of-counsel claim, both of which directly related to the resentencing proceedings. Id. at 327–28, 130 S.Ct. 2788. The district court sua sponte addressed whether Magwood's present § 2254 petition was second or successive for purposes of § 2244, concluded it was not, and proceeded to address the merits of Magwood's claims. Id. at 328, 130 S.Ct. 2788. On appeal, we reversed in part the district court's ruling as to the successive nature of the petition, concluding that Magwood's fair-warning claim was a prohibited second or successive claim under § 2244 because it "challenged the trial court's reliance on the same (allegedly improper) aggravating factor that the trial court had relied upon for Magwood's original sentence." Id. at 329, 130 S.Ct. 2788. In reversing our decision, the Supreme Court explained that the phrase "second or successive" in § 2244(b) "must be interpreted with respect to the judgment challenged." Id. at 332–33, 130 S.Ct. 2788. Accordingly, the Magwood court concluded that because a new, intervening judgment was entered following the resentencing, Magwood's new § 2254 petition which challenged "new errors" made at the resentencing was not "second or successive" for purposes of § 2244(b). Id. at 339, 342, 130 S.Ct. 2788. In reaching this conclusion, the Magwood Court left open the question of whether a petitioner could challenge the original, undisturbed conviction in a new § 2254 petition where the State imposed only a new sentence. Id. at 342, 130 S.Ct. 2788.

Subsequently, in Insignares , we considered the question left open in Magwood as to whether a habeas petition is "second or successive" for purposes of § 2244 where it challenges an undisturbed conviction following the imposition of only a new sentence. 755 F.3d at 1277–78. Specifically, after pursuing federal habeas relief, Insignares filed a Rule 3.800 motion to correct his sentence. Id. at 1277. The state court granted the motion, reduced the mandatory-minimum imprisonment term for one of his counts of conviction from 20 to 10 years, and "entered a corrected sentence and new judgment." Id. Insignares then filed a new § 2254 petition. Id. Although the State did not contest that a new judgment was entered within the meaning of Magwood for purposes of § 2244, it argued that Insignares's new § 2254 petition was nevertheless "second or successive" because it challenged the undisturbed conviction and raised the same issues as his first § 2254 petition. Id. at 1278. We concluded that because there is only one judgment, which "is...