Ace Patterson v. Secretary, Florida Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 29, 2016
• Docket: 12-12653
• Status: Published

Opinion

Case: 12-12653 Date Filed: 01/29/2016 Page: 1 of 67

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-12653 ________________________

D.C. Docket No. 4:11-cv-00010-RH-CAS

ACE PATTERSON,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(January 29, 2016)

Before WILLIAM PRYOR, and JORDAN, Circuit Judges, and HAIKALA, * District Judge.

JORDAN, Circuit Judge.

* Honorable Madeline Hughes Haikala, United States District Judge for the Northern District of Alabama, sitting by designation. Case: 12-12653 Date Filed: 01/29/2016 Page: 2 of 67

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

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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 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

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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 (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.

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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.

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In 2007, following state post-conviction proceedings, Mr. Insignares filed

his first § 2254 habeas petition. That petition was 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.”).

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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

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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 claims had been previously dismissed as untimely. See id. at

1282–84.

A “basic principle of justice [is] that like cases should be decided alike,”

Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005), and we find no

meaningful distinction between Mr. Insignares’ case and Mr. Patterson’s case. Just

as Mr. Insignares’ initial § 2254 petition was dismissed for untimeliness, so too

was Mr. Patterson’s initial § 2254 petition. Just as Mr. Insignares filed a motion

with the state trial court to correct his illegal sentence under Rule 3.800, so too did

Mr. Patterson. Just as the state trial court granted Mr. Insignares’ motion to

correct, substantively amending a part of the sentence but leaving Mr. Insignares’

remaining convictions and total custodial sentences intact, so too did the state trial

court here grant Mr. Patterson’s motion to correct, substantively vacating a portion

of the sentence but leaving Mr. Patterson’s remaining convictions and total

custodial sentences intact. Just as Mr. Insignares benefitted from the new sentence,

so too did Mr. Patterson benefit from the new sentence. And just as the second

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habeas petition filed by Mr. Insignares asserted claims related to his underlying

convictions (and not to the new sentence), so too did the second habeas petition

filed by Mr. Patterson assert claims related to his underlying convictions (and not

to the new sentence). As in Insignares, the state trial court’s grant of Mr.

Patterson’s Rule 3.800 motion and its vacatur of the punishment of chemical

castration from the original sentence constituted a resentencing that resulted in a

new judgment, even though Mr. Patterson’s total custodial term (life in prison)

remained the same, and even though the current habeas corpus petition challenges

only the underlying convictions.

B

The State contends that Insignares is distinguishable for two reasons. We

are not persuaded.

First, the State argues that, unlike the situation in Insignares, Mr. Patterson

was not resentenced. Instead, the state trial court merely barred the Department of

Corrections from carrying out a portion of Mr. Patterson’s initial judgment and

sentence. We do not see the distinction.

Initially, Mr. Patterson’s sentence consisted of a term of 311 months of

imprisonment for his burglary and aggravated kidnapping convictions, as well as

consecutive terms of life imprisonment plus chemical castration for his sexual

battery convictions. The total sentence not only authorized the Department of

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Corrections to incarcerate Mr. Patterson, but also, at its discretion, to chemically

castrate him by administering MPA during his term of incarceration. See Fla. Stat.

§ 794.0235(2)(b) (“In all cases involving defendants sentenced to a period of

incarceration, the administration of treatment with medroxyprogesterone acetate

(MPA) shall commence not later than one week prior to the defendant’s release

from prison or other institution.”). The State concedes in its brief that the

administration of MPA “is a part of the defendant’s . . . sentence,” see Appellee’s

Brief at 27, and we accept that concession because it is consistent with Florida law.

Indeed, Tran v. State, 965 So. 2d 226, 229 (Fla. 4th DCA 2007), holds that

chemical castration is not for medical treatment and constitutes “part of the

defendant’s punishment and sentence.”

Following entry of the state trial court’s Rule 3.800 order vacating the

chemical castration portion of Mr. Patterson’s sentence, the Department of

Corrections was no longer authorized to chemically castrate him through the

administration of MPA. It was, in other words, not able to carry out one of the

punitive measures permitted by Florida law and initially imposed by the trial court

at sentencing. The Rule 3.800 order, together with the 1998 judgment, are what

currently “authoriz[e] [Mr. Patterson’s] confinement.” Magwood, 561 U.S. at 332.

We fail to understand how an order vacating the punishment of chemical

castration—a recognized part of Mr. Patterson’s original sentence under Florida

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law—can be considered anything but a resentencing. Indeed, the State admitted at

oral argument that, in implementing the sentence, the Department of Corrections

must abide by the trial court’s Rule 3.800 order and therefore cannot administer

MPA to Mr. Patterson. Cf. Murphy v. United States, 634 F.3d 1303, 1314 (11th

Cir. 2011) (stating that a resentencing occurs “where an old sentence is invalidated

and replaced with a new one”). Accordingly, we are not swayed by the State’s first

argument. See H. Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758

(1982) (“the jurisprudential rule of like treatment demands consistency not only

between cases that are precisely alike but among those where the differences are

not significant”).

Second, the State says that Insignares is distinguishable because in that case,

after granting the Rule 3.800 motion, the state trial court entered a “corrected

sentence and new judgment.” Insignares, 755 F.3d at 1277. The State asserts that

here there is only one judgment in the record—the one rendered in 1998—and it

contends that, because the state trial court did not enter a new judgment in Mr.

Patterson’s case following its grant of Rule 3.800 relief, Insignares does not apply.

Again, we are not convinced. For starters, Florida law requires only that a

“judgment of guilty” or “not guilty . . . be rendered . . . in writing, signed by the

judge, filed, and recorded.” Fla. R. Crim. P. 3.670. With regards to a defendant’s

sentence, Florida Rule of Criminal Procedure 3.700 requires only that “[e]very

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sentence . . . be pronounced in open court . . . [and] [t]he final disposition of every

case [ ] be entered in the minutes in courts which minutes are kept and . . .

docketed in courts that do not maintain minutes.” Florida Rule of Criminal

Procedure 3.986 provides a sample “uniform Judgment and Sentence form,” but

“[n]either Rule 3.986 nor any other rule makes the completion and filing of the

authorized form of judgment and sentence a condition to a valid sentence.”

Flowers v. State, 351 So. 2d 387, 389 (Fla. 1st DCA 1977). Indeed, under Florida

law even the requirement that a judgment of guilt be rendered in writing “should

not be read as suspending the effect of the sentence pronounced in open court until

the paper is filed.” Id. In other words, under Florida law a sentencing (or

resentencing) order need not be documented in a formal separate judgment to be

effective. Thus, the mere fact that the state trial court here did not, in addition to

issuing its Rule 3.800 order, enter a new judgment does not affect the validity of its

resentencing of Mr. Patterson, and it is not determinative of whether a new

judgment exists under Magwood and Insignares. 1

1 Imagine a scenario where a Florida state court sentences a defendant convicted of fraud to 10 years in prison at hard labor. After being forced to do hard labor for a year, the defendant files a Rule 3.800 motion to correct an illegal sentence, arguing that the hard labor portion of the original sentence violates the Eighth Amendment. The state trial court agrees, and issues an order deleting the hard labor aspect of the initial sentence and telling the prison authorities that they can no longer require the defendant to perform hard labor. Although the state trial court does not enter a new separate judgment without the hard labor condition, its order deleting that punitive condition is a resentencing which constitutes a new judgment under Magwood and Insignares.

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To accept the State’s argument would be to make the form that a new

judgment takes—rather than its substance—dispositive. If we were to accept the

State’s view—that it is the entry of a new separate paper judgment (and only the

entry of a new separate paper judgment) that results in a “new judgment” under

Magwood and Insignares—then a state trial court’s correction of a simple clerical

error through the entry of a new separate paper judgment (for example, replacing

“500 months in prison” with “50 months in prison” to correct a typographical

error) would necessarily result in a new judgment giving a defendant a new

opportunity to seek federal habeas relief. We have already rejected the notion that

the mere issuance of a revised paper judgment under such circumstances

necessarily constitutes a resentencing. See United States v. Portillo, 363 F.3d

1161, 1165 (11th Cir. 2004) (holding that the correction of a clerical error that is

“minor and mechanical in nature” in a sentence under Federal Rule of Criminal

Procedure 36 does not result in the entry of a new criminal “judgment” under

Federal Rule of Appellate Procedure 4(b)(1)(A)).

We do not think the Supreme Court intended for Magwood to extend that

far, and thereby conflict with the central purpose behind AEDPA’s restrictions on

the filing of second or successive petitions—that of “ensur[ing] greater finality of

state and federal court judgments in criminal cases[.]” Gonzalez v. Secretary, 366

F.3d 1253, 1269 (11th Cir. 2004), aff'd on other grounds sub nom. Gonzalez v.

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Crosby, 545 U.S. 524 (2005). Where state court orders are concerned, principles

of federalism and comity counsel against federal courts insisting that a state trial

court use a particular method (or piece of paper) to render a criminal judgment.

Given the potential variety of forms of criminal judgments available in state

criminal justice systems, a federal rule for determining successiveness should and

must be based on the substance, and not the merely the form, of a trial court’s

sentencing order.

For all of these reasons, we believe the appropriate approach is to focus on

the legal error corrected by, and the substantive effect of, the state trial court’s

Rule 3.800 order. As we emphasized in Insignares, “courts must look to the

judgment challenged to determine whether a petition is second or successive.”

Insignares, 755 F.3d at 1278 (emphasis in original). And we have previously

explained, in the context of applying AEDPA’s one-year statute of limitations, that

“the judgment to which AEDPA refers is the underlying conviction and most

recent sentence that authorizes the petitioner’s current detention.” Ferreira, 494

F.3d at 1292.

Where a state court corrects a legal error in an initial sentence, and imposes

a new sentence that is substantively different than the one originally imposed, there

is a new judgment under Magwood and Insignares. Here, the initial imposition of

the punishment of chemical castration was erroneous under Florida law, and the

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subsequent removal of that punishment substantively altered the punitive terms of

Mr. Patterson’s custody. So the original 1998 judgment, standing alone, no longer

accounts for the authority of the Department of Corrections to detain and exert

control over Mr. Patterson. Instead, as the State admits, one must now look to the

original 1998 judgment, together with the 2009 order removing the punishment of

chemical castration, in order to determine Mr. Patterson’s present and legally

authorized sentence. See Magwood, 561 U.S. at 332 (“A § 2254 petitioner is

applying for something: His petition ‘seeks invalidation (in whole or in part) of the

judgment authorizing the prisoner's confinement.’”). Cf. B. Garner, Garner’s

Dictionary of Legal Usage 495 (3d ed. 2011) (defining an American judgment as

“the final decisive act of a court in defining the rights of the parties”). Because this

is Mr. Patterson’s first § 2254 petition challenging this new judgment, we conclude

that it is not “second or successive” under § 2244(b).

C

The Fifth Circuit’s decision in In re Lampton, 667 F.3d 585 (5th Cir. 2012),

is not to the contrary. Mr. Lampton, a federal prisoner, was convicted by a jury of,

among other things, one count of conspiracy to distribute heroin and marijuana and

one count of engaging in a continuing criminal enterprise. The district court

sentenced him to concurrent life sentences for each conviction. The district court,

however, later granted in part Mr. Lampton’s motion to vacate under 28 U.S.C. §

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2255, ruling that his convictions violated the constitutional prohibition against

double jeopardy. The district court vacated Mr. Lampton’s conspiracy conviction

and sentence, leaving in place the continuing-criminal-enterprise conviction and

the life sentence for that conviction.

Mr. Lampton then filed a second § 2255 motion, arguing that under

Magwood his motion was not second or successive because it was his first § 2255

motion challenging his amended judgment. He argued that, because the district

court granted his first § 2255 motion, he was now in custody pursuant to a new,

amended judgment and this was his first § 2255 motion challenging that new,

amended judgment. The Fifth Circuit disagreed with Mr. Lampton and held that,

where a first collateral attack results in the vacatur of a conviction and sentence for

a lesser-included offense, which has the same concurrent sentence as the

conviction for the greater offense (which remains valid), the granting of the first

collateral attack does not yield a new judgment.

The Fifth Circuit reached this result, in part, because despite the amended

judgment, Mr. Lampton still had to serve a life sentence on the continuing-

criminal-enterprise conviction that was imposed by the original judgment entered

by the district court. Mr. Lampton’s punishment, in other words, did not change.

“[T]he rule announced in Magwood applies only when a new sentence was

imposed as a result of the first habeas proceeding.” Id. at 589. Because no new

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sentence was imposed as a result of Mr. Lampton’s initial § 2255 motion, the Fifth

Circuit concluded that his prior § 2255 petition did not yield a new judgment of

conviction. “Whether a new judgment has intervened between two habeas

petitions, such that the second petition can be filed without th[e] [c]ourt’s

permission, depends on whether a new sentence has been imposed.” Id. at 589

(citing Burton v. Stewart, 549 U.S. 147, 156 (2007) (“Final judgment in a criminal

case means sentence. The sentence is the judgment.”)). In Mr. Lampton’s case,

the “sentence on the [continuing-criminal-enterprise] conviction remained intact

after the initial § 2255 proceeding was completed.” Id. at 589. Because “no new

sentence was imposed[,] [t]he less fundamental change made to [Mr.] Lampton’s

judgment of conviction [was] not enough to allow him to bypass AEDPA’s

restrictions on piecemeal habeas litigation.” Id. at 590.2

Here, unlike the situation in Lampton, the state trial court’s Rule 3.800 order

substantively changed Mr. Patterson’s sentence. The order eliminated the

2 The Fifth Circuit also reached this result based upon its own circuit precedent, which it concluded did not require the district court to enter a new judgment as to the remaining counts in a multi-count conviction after one of the counts was vacated. See Lampton, 667 F.3d at 588-89 (“It has long been the law of this Circuit that where a defendant has been improperly convicted of and sentenced on both a greater offense and a lesser-included offense, ‘the proper remedy is to vacate both the conviction and sentence on the included-offense, leaving the conviction and sentence on the greater offense intact.’ Thus, when a first habeas petition results in vacatur of the conviction and sentence associated with one count of a multi-count conviction, the district court is not required to enter a new judgment as to the remaining counts. Those convictions and sentences, as well as the judgment imposing them, remain undisturbed.”). That scenario is not presented here. 17 Case: 12-12653 Date Filed: 01/29/2016 Page: 18 of 67

punishment of chemical castration from the initial sentence, and as a result a new

sentence was imposed.

Notably, the Fifth Circuit in Lampton cited with approval its prior order in In

re Barnes, No. 11-30319 (5th Cir. June 23, 2011) (per curiam). In that case, after

his first habeas petition was dismissed on limitations grounds, the petitioner later

filed a motion in state court to correct his life sentence. The state court granted the

motion and amended the petitioner’s life sentence to a 99-year sentence. The Fifth

Circuit held that the petitioner could file another § 2254 petition without obtaining

prior authorization under § 2244 “because a new sentence constitutes a new

judgment.” Lampton, 667 F.3d at 588 (citing In re Barnes, slip opinion at 3).

Our holding is consistent with the Fifth Circuit’s reasoning in Lampton, in

that we too conclude that it is Mr. Patterson’s new sentence—a sentence that no

longer contains a previously imposed punishment —which yields a new judgment.

As a result of the state trial court’s Rule 3.800 order, the Department of

Corrections can no longer chemically castrate Mr. Patterson. That is, it cannot

carry out a punishment that it was previously legally authorized to carry out while

Mr. Patterson was in its custody. This substantive alteration of the punitive terms

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of Mr. Patterson’s original judgment resulted in a new sentence, which yielded a

new judgment. 3

D

We respect the passionate dissenting views of our colleague, Judge William

Pryor. Yet we suspect that Judge Pryor’s real disagreement is with Magwood and

our prior decision in Insignares.

Judge Pryor, for example, complains that our decision allows a state prisoner

to raise, in a subsequent federal habeas petition, claims that he failed to assert in

his first petition. That complaint, however, should be addressed to the Supreme

Court. The Justices who dissented in Magwood pointed out that the majority was

permitting the exact same thing that Judge Pryor now bemoans. See Magwood,

561 U.S. at 343-44 (Kennedy, J., dissenting) (“The Court today decides that a state

prisoner who succeeds in his first federal habeas on a discreet sentencing claim

may later file a second petition raising numerous previously unraised claims, even

if that petition is an abuse of the writ of habeas corpus.”). It is not for us to

overhaul Supreme Court precedent. See King v. Morgan, 807 F.3d 154, 159 (6th

Cir. 2015) (explaining that in Magwood the majority ruled in favor of the habeas

3 If we are mistaken, and Lampton is inconsistent (or in tension) with Insignares, our loyalty, of course, is to Insignares rather than Lampton.

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petitioner notwithstanding the “animating” purpose of AEDPA – “to cut back on

successive habeas challenges”).

There is also an aspect of Judge Pryor’s dissent that we do not fully

understand. Judge Pryor, like the State, says that Insignares does not control

because in that case the state trial court entered an amended judgment after issuing

its Rule 3.800 order. According to Judge Pryor, that separate judgment—which is

missing here—makes all the difference, because formalism should reign supreme

(even though he acknowledges that under Florida law a separate written judgment

is not necessary). But Judge Pryor then apparently endorses an opinion which

holds that an amended judgment reducing a sentence under 18 U.S.C. § 3582(c)

due to a retroactive guideline amendment is not a new judgment under Magwood.

See White v. United States, 745 F.3d 834, 836–37 (7th Cir. 2014). So it is unclear

whether formalism is the guiding principle, and we are left to guess whether it is a

piece of paper, or a vacatur, or a substantive change (or something else altogether)

that matters.

If Judge Pryor thinks that White is correctly decided, then his

characterization of its rationale—that there is no new judgment unless the original

judgment is vacated—fits here, for the state trial court’s Rule 3.800 order in Mr.

Patterson’s case set aside, i.e., vacated, the punishment of chemical castration

mandated and authorized by the 1998 judgment. Florida courts have long held

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and recognized that an order granting a Rule 3.800 motion is effective (and

appealable) if it imposes a new sentence, thereby putting an end to judicial labor.

See, e.g., State v. Del Valle, 745 So.2d 541, 542 (Fla. 4th DCA 1999); Pate v.

State, 908 So.2d 613, 614 (Fla. 2d DCA 2005); Adams v. State, 949 So.2d 1125,

1126-27 (Fla. 3d DCA 2007).

Finally, to the extent that Judge Pryor is suggesting that we are in some way

trying to undermine AEDPA, such an accusation is as disappointing as it is wrong.

As the Seventh Circuit recently noted, see Kramer v. United States, 797 F.3d 493,

502 (7th Cir. 2015), reasonable jurists can disagree about what constitutes a new

judgment under Magwood. We have tried to faithfully apply AEDPA and

Magwood in light of binding circuit precedent, and that binding circuit precedent is

Insignares. We believe we have accomplished that task, Judge Pryor’s protests

notwithstanding.

III

We reverse the dismissal of Mr. Patterson’s habeas corpus petition as second

or successive and remand for further proceedings consistent with this opinion. We

express no views on Mr. Patterson’s claims.

REVERSED AND REMANDED.

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HAIKALA, District Judge, concurring specially:

Judge Pryor and Judge Jordan have prepared thorough opinions in this case.

I have studied both opinions. I agree with Judge Pryor that this case is not hard. I

agree with Judge Jordan’s analysis of the issue presented to the Court. Like Judge

Jordan, I conclude that the rationale of Insignares v. Sec’y, Fla. Dep’t of Corr., 755

F.3d 1273 (11th Cir. 2014), requires reversal. I write separately to address a few

points in Judge Pryor’s opinion.

In his opinion, Judge Pryor describes Mr. Patterson’s reprehensible criminal

behavior. Minority Op. at 2-3. There is no doubt that the conduct that gave rise to

Mr. Patterson’s conviction and sentence is heinous, but that conduct has no bearing

upon the legal standard that governs the issue before the Court. As the United

States Supreme Court wrote in Chessman v. Teets: “On many occasions this Court

has found it necessary to say that the requirements of the Due Process Clause of

the Fourteenth Amendment must be respected, no matter how heinous the crime in

question and no matter how guilty an accused may ultimately be found to be after

guilt has been established in accordance with the procedure demanded by the

Constitution.” 354 U.S. 156, 165 (1957). Stated differently,

[T]he Constitution upon which this country is founded protects all citizens, even the worst among the citizenry who have engaged in the most reprehensible of acts. In this context, the broad protections of the Constitution therefore turn a blind eye to the individual facts of the underlying crime and instead focus on rights, even the rights of those who gave their victims no such analogous consideration. Such Case: 12-12653 Date Filed: 01/29/2016 Page: 23 of 67

fundamental fairness in application must inform cases like the one before this Court today, animating the proceedings so that justice, however often slow, is ultimately done. To accept less would be to diminish the Constitution.

Cooey v. Strickland, No. 2:04-CV-1156, 2009 WL 4842393, at *102 (S.D. Ohio

Dec. 7, 2009). Similarly, when interpreting and applying a statute, a court must

turn a blind eye to the individual facts of the underlying crime if those facts are not

relevant to the statutory issue before the court. To do otherwise would be to

abandon objective legal standards for subjective sliding scales. 1

Judge Pryor also expresses concern that the majority decision may cause

“state prisoners [to] have greater access to the writ” and state courts to be more

hesitant to correct sentencing errors. Minority Op. at 19-20. Respectfully, I do not

share these concerns. If anything, the majority opinion may, as a practical matter,

engender fewer writs. The obvious way to avoid a second writ is to make certain

that every criminal judgment fully complies with all procedural and substantive

rules that govern the judgment when the judgment is first entered. Judges are

human though, and trial judges – federal and state alike – occasionally make

mistakes. Mistakes have consequences. To fulfill their obligations, trial judges

routinely issue decisions – legally sound decisions – that produce consequences

that the judge may wish he or she could avoid, but every judge, by oath, is

1 The Supreme Court followed this principle in Magwood. The defendant in that case murdered an Alabama sheriff just outside of the jail where the sheriff worked. The state trial court sentenced Mr. Magwood to death for his crime. Magwood, 561 U.S. at 323-24. 23 Case: 12-12653 Date Filed: 01/29/2016 Page: 24 of 67

obligated to “faithfully and impartially discharge and perform all of the duties” of

the judicial office.2 The notion that a trial judge would refrain from correcting a

sentencing error that all of the parties have acknowledged (as is the case here) to

avoid a potential habeas petition is repugnant to the judicial office.

Similarly, we must follow binding precedent even when application of that

precedent may open the door – however briefly – to a second habeas petition.3 As

our Circuit has acknowledged, Supreme Court precedent dictates that a criminal

judgment is “comprised of both the sentence and conviction.” Insignares, 755

F.3d at 1281 (discussing and citing Burton v. Stewart, 549 U.S. 147, 156 (2007);

Deal v. United States, 508 U.S. 129, 132 (1993) (“A judgment of conviction

includes both the adjudication of guilt and the sentence.”); and Ferreira, 494 F.3d

at 1292 (“[T]he judgment to which AEDPA refers is the underlying conviction and

most recent sentence that authorizes the petitioner’s current detention.”) (alteration

in original). Insignares instructs that when a trial court corrects a sentence, even if

the revision does not impact the stated term of incarceration and even if the

amended sentence benefits the criminal defendant, the trial court renders a new

“judgment.” And “when a habeas petition is the first to challenge a new judgment,

2 See 28 U.S.C. § 453. 3 Although the habeas petition at issue is “not subject to AEDPA’s restrictions on ‘second or successive’ petitions, AEDPA’s other limitations still apply. For example, ‘[a] petitioner may not raise in federal court an error that he failed to raise properly in state court in a challenge to the judgment reflecting the error.’ Moreover, previously decided claims may be foreclosed by the law-of-the-case doctrine.” Insignares, 755 F.3d at 1281 n.9 (quoting Magwood, 561 U.S. at 340). 24 Case: 12-12653 Date Filed: 01/29/2016 Page: 25 of 67

it is not ‘second or successive,’ regardless of whether its claims challenge the

sentence or the underlying conviction.” Insignares, 755 F.3d at 1281; see

generally Majority Op. at 4-12. When the trial judge corrected Mr. Patterson’s

sentence, the judge rendered a new criminal judgment. Mr. Patterson’s recent writ

is the first following the new judgment; the writ is not second or successive. 4

Judge Pryor’s and Judge Jordan’s opinions express an honest disagreement

about the import of this Circuit’s precedent. I vote with Judge Jordan. As Judge

Fay explained in his special concurrence in Insignares, “there is language in

Magwood that indicates [] that the Supreme Court may well take a different tack

should it deal with a case like this one.” Insignares, 755 F.3d at 1285 (Fay, J.,

concurring specially). “When the Supreme Court has a case exactly like this one,

we will know the answer. Until then, we are bound by our precedent in Ferreira”

and Insignares. Id.

4 Insignares also instructs that “the phrase ‘second or successive’ applies to habeas petitions, not to the claims they raise.” Insignares, 755 F.3d at 1281 (emphasis in Insignares). 25 Case: 12-12653 Date Filed: 01/29/2016 Page: 26 of 67

WILLIAM PRYOR, Circuit Judge, dissenting:

Ace Patterson—a child rapist, kidnapper, and burglar—won the habeas

lottery today. The majority gives him a second chance to collaterally attack his

convictions in federal court, seventeen years after his trial and nine years after he

filed his first federal petition for a writ of habeas corpus. Most state prisoners are

not so lucky, as the Antiterrorism and Effective Death Penalty Act prohibits the

filing of a “second or successive” petition for a writ of habeas corpus. 28 U.S.C.

§ 2244(b). But Patterson is luckier still. In a sleight of hand, the majority rules that

a 2009 order sparing him from chemical castration—an unopposed order that

benefited Patterson—somehow hit the reset button on his ability to obtain federal

habeas relief, even though the 2009 order is not “the judgment authorizing

[Patterson’s] confinement” and is irrelevant for purposes of the bar on second or

successive petitions. Magwood v. Patterson, 561 U.S. 320, 332, 130 S. Ct. 2788,

2797 (2010) (emphasis omitted) (quoting Wilkinson v. Dotson, 544 U.S. 74, 83,

125 S. Ct. 1242, 1248 (2005)). The clear text of the statute makes “the judgment of

a State court” that holds the prisoner “in custody” the judgment that matters for our

collateral review. 28 U.S.C. § 2254(b)(1). And for good reason. Patterson, after all,

does not object to anything in the 2009 order that spared him from chemical

castration or allege that the removal of chemical castration somehow violated his

federal constitutional rights. He instead seeks to collaterally attack the judgment of

26 Case: 12-12653 Date Filed: 01/29/2016 Page: 27 of 67

convictions entered against him in 1998—a judgment he has already collaterally

attacked once in federal court and four times in state court. And the majority lets

him do it. Because that ruling is wrong in every way, I dissent.

I. BACKGROUND

The majority provides a barebones accounting of the facts and the

procedural history of this appeal. But the nature of Patterson’s crimes, the trauma

he caused the victim, and his repeated and often frivolous collateral attacks vividly

illustrate why the Antiterrorism and Effective Death Penalty Act bars second or

successive petitions. Here’s the rest of the story.

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 fiancée

at their home in Madison County, Florida. There, Patterson was introduced to the

couple’s 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, lifted his

cousin’s sleeping eight-year-old daughter out of her bed, and carried her outside.

Patterson dropped her in a dirty area of 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

27 Case: 12-12653 Date Filed: 01/29/2016 Page: 28 of 67

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 imprisonment, consecutive terms of life imprisonment, and

chemical castration. The 1998 sentence “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 copy of the 1998 sentence is

attached as Appendix A to this dissent. Patterson’s convictions and sentence were

affirmed on direct appeal.

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 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) (mem.).

28 Case: 12-12653 Date Filed: 01/29/2016 Page: 29 of 67

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 2006 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 under Florida

Rule of Criminal Procedure 3.800(a) 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 acquiesced in Patterson’s motion.

With Patterson imprisoned for life, the prosecutor and guardian ad litem

understandably 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

29 Case: 12-12653 Date Filed: 01/29/2016 Page: 30 of 67

2009 order did not vacate Patterson’s original sentence and replace it with a new

one. Nor did it direct the Department of Corrections to hold Patterson or to do any

affirmative act. A copy of the 2009 order is attached as Appendix B to this dissent.

After his success in state court, Patterson resumed attacking 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. The district court dismissed his 2011

petition as second or successive.

II. DISCUSSION

After a state prisoner has had a trial, 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 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, 1502 (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.

30 Case: 12-12653 Date Filed: 01/29/2016 Page: 31 of 67

Isaac, 456 U.S. 107, 127 n.32, 102 S. Ct. 1558, 1571 n.32 (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 Irrelevant?

Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146 (1970)).

Finality also “benefits the victim by helping [her] put the trauma of the crime and

prosecution behind [her].” Presnell v. Kemp, 835 F.2d 1567, 1573 (11th Cir. 1988).

Whether a petition is second or successive depends on “the judgment

challenged.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278 (11th

Cir. 2014). The judgment that matters for purposes of section 2244 is “the

judgment authorizing the prisoner’s confinement.” Magwood, 561 U.S. at 332, 130

S. Ct. at 2797 (emphasis omitted) (quoting Dotson, 544 U.S. at 83, 125 S. Ct. at

1248); see also Burton v. Stewart, 549 U.S. 147, 156, 127 S. Ct. 793, 798 (2007)

(explaining that the judgment for purposes of section 2244 is “the judgment

pursuant to which [the prisoner] [i]s being detained”); Insignares, 755 F.3d at 1281

(“[T]he judgment to which AEDPA refers is the underlying conviction and most

recent sentence that authorizes the petitioner’s current detention.” (alteration in

original) (emphasis added) (quoting Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d

1286, 1292 (11th Cir. 2007))). This conclusion follows from the text of the statute.

Section 2244(b) refers to second or successive petitions “under section 2254,” 28

U.S.C. § 2244(b), and section 2254 governs petitions that challenge “the judgment

31 Case: 12-12653 Date Filed: 01/29/2016 Page: 32 of 67

of a State court” “pursuant to” which the prisoner is “in custody,” id. § 2254.

Accordingly, the bar on second or successive petitions ordinarily prevents a

prisoner from twice contesting the judgment authorizing his confinement. See

Burton, 549 U.S. at 153, 127 S. Ct. at 796.

A petition is not second or successive if it challenges a “new judgment”

issued after the prisoner filed his first petition. Magwood, 561 U.S. at 324, 130

S. Ct. at 2792. But, again, the new judgment must be a new “judgment authorizing

the prisoner’s confinement.” Id. at 332, 130 S. Ct. at 2797 (emphasis omitted)

(quoting Dotson, 544 U.S. at 83, 125 S. Ct. at 1248). For example, in Magwood, a

prisoner filed his first habeas petition, and the district court granted it and vacated

his sentence. Id. at 326, 130 S. Ct. at 2793. The state court then conducted a new

sentencing hearing and entered a new sentence. Id. When the prisoner filed a

second habeas petition, the U.S. Supreme Court held that it was not second or

successive because the petition was the prisoner’s “first” challenge to the new

sentence. Id. at 339, 130 S. Ct. at 2801. Although the prisoner’s second petition

restated the same errors as his first petition, the errors he alleged were “new.” Id.

At the resentencing hearing, the state court had heard and rejected the prisoner’s

arguments a second time, and “[a]n error made a second time is still a new error.”

32 Case: 12-12653 Date Filed: 01/29/2016 Page: 33 of 67

Based on the text of the statute and the precedent of the Supreme Court, this

case should have been easy. The judgment requiring Patterson’s confinement is the

sentence entered in 1998. That judgment “committed [Patterson] to the custody of

the Department of Corrections,” and that commitment has never been vacated or

replaced. Patterson challenged that judgment in his 2006 petition for a writ of

habeas corpus. When the 2006 petition was dismissed as untimely, Patterson lost

his one chance to obtain federal habeas relief. See Murray v. Greiner, 394 F.3d 78,

81 (2d Cir. 2005) (“[D]ismissal of a § 2254 petition for failure to comply with the

one-year statute of limitations constitutes an adjudication on the merits that renders

future petitions under § 2254 challenging the same conviction ‘second or

successive’ petitions under § 2244(b).”). Because Patterson’s 2011 petition tries to

challenge the 1998 sentence a second time, it should be dismissed as second or

successive.

The majority contends that the 2009 order sparing Patterson from chemical

castration is a “new judgment” that renders the 2011 petition not second or

successive, Majority Op. at 5, but the majority ignores the plain text of the statute.

The presence of an intervening judgment or sentence is irrelevant on its own; a

new judgment counts for purposes of section 2244 only if it is a new judgment

“pursuant to” which the prisoner is “in custody.” 28 U.S.C. § 2254; see Magwood,

561 U.S. at 332–33, 130 S. Ct. at 2797; Burton, 549 U.S. at 156, 127 S. Ct. at 798;

33 Case: 12-12653 Date Filed: 01/29/2016 Page: 34 of 67

Insignares, 755 F.3d at 1281. And Patterson is not in custody pursuant to the 2009

order. That order does not authorize anything; it instead states, in the negative, that

Patterson “shall not have to undergo [chemical castration].” Standing on its own,

the 2009 order imposes no sentence and gives the Florida Department of

Corrections no authority. The 1998 sentence is the only judgment that allows the

Department to detain Patterson. Although the majority asserts that the 2009 order

authorizes Patterson’s confinement, Majority Op. at 10, the majority never quotes

any language from the order that would support such a conclusion.

Because the 2009 order is obviously not the order that authorizes Patterson’s

confinement, the majority holds that any order that affects the judgment

authorizing a prisoner’s confinement somehow creates a new judgment authorizing

his confinement. Id. at 14. Requiring the actual entry of a new judgment, the

majority contends, would exalt form over substance. Id. at 13–14. But if

“substance” requires departing from the text of the statute and usurping the role of

Congress, count me a formalist. To quote Justice Scalia, “Long live formalism. It is

what makes a government a government of laws and not of men.” Antonin Scalia,

A Matter of Interpretation: Federal Courts and the Law 25 (1997).

Indeed, at least two other circuits have embraced the “formalistic”

distinction that the majority rejects. The Fifth and Seventh Circuits have held that

an order that affects the judgment requiring the prisoner’s confinement, but does

34 Case: 12-12653 Date Filed: 01/29/2016 Page: 35 of 67

not vacate and replace that judgment, does not lift the bar on second or successive

petitions. The Fifth Circuit has held that an order partially vacating a sentence is

not a new judgment for purposes of the bar on second or successive petitions. See

In re Lampton, 667 F.3d 585, 589–90 (5th Cir. 2012). In Lampton, the federal

prisoner filed his first motion to vacate, and the district court granted it in part and

entered an order “vacating Lampton’s conspiracy conviction and the life sentence

that had been imposed based on that conviction.” Id. at 587. This order did not

allow Lampton to file a second or successive motion, Judge Higginbotham wrote,

because Lampton’s original sentence “remained intact” and the later order did not

“impose[]” a “new sentence” or “enter an amended judgment.” Id. at 589–90. The

majority’s attempt to distinguish Lampton omits the key reasoning of that decision.

The point was not that Lampton’s sentence “did not change,” Majority Op. at 16; it

was that a partial vacatur is the type of “less fundamental change” that does not

allow a prisoner to “bypass AEDPA’s restrictions on piecemeal habeas litigation.”

Lampton, 667 F.3d at 590. Even more on point, the Seventh Circuit has held that

an order reducing a prisoner’s sentence based on a change in the Sentencing

Guidelines, 18 U.S.C. § 3582(c)(2), does not create a new judgment for purposes

of the bar on second or successive petitions. See White v. United States, 745 F.3d

834, 836–37 (7th Cir. 2014). In White, the federal prisoner’s first motion to vacate

was dismissed, but he later filed a successful motion for a sentencing reduction

35 Case: 12-12653 Date Filed: 01/29/2016 Page: 36 of 67

under section 3582(c)(2). Id. at 835. The district court reduced his sentence by 68

months. Id. This reduction was not a new judgment, Judge Easterbrook wrote,

because “the original judgment [wa]s not declared invalid.” Id. at 836. Although

“White’s sentence ha[d] changed,” the older judgment requiring his confinement

was not “vacated” and White was not “resentenced.” Id. (emphasis added).

“Magwood does not reset the clock or the count” just because “a prisoner’s

sentence is reduced.” Id. at 837. The conflict between these decisions and the

majority opinion is plain and makes this appeal a ripe target for the State of Florida

to file a petition for a writ of certiorari in the Supreme Court.

Our decision in Insignares does not support the majority. True, both

Patterson and Insignares filed successful motions to correct an illegal sentence

under Florida Rule of Criminal Procedure 3.800(a). But the Florida trial court in

Insignares went a step further: it also “entered [a] corrected sentence and new

judgment.” 755 F.3d at 1277. Specifically, three days after it granted Insignares’s

motion, the Florida trial court issued a “Corrected Sentence” that “committed

[Insignares] to the custody of the Department of Corrections” for a term of twenty-

seven years. Here, by contrast, the Florida trial court never issued a corrected

sentence to replace Patterson’s 1998 sentence. It simply issued the 2009 order,

which bars the imposition of chemical castration but does not supersede the 1998

sentence. In short, Insignares had an intervening “judgment authorizing [his]

36 Case: 12-12653 Date Filed: 01/29/2016 Page: 37 of 67

confinement,” but Patterson does not. Id. at 1279 (emphasis omitted) (quoting

Magwood, 561 U.S. at 332, 130 S. Ct. at 2797). For the sake of comparison,

Insignares’s second judgment is attached as Appendix C to this dissent.

The majority does not view the difference between this case and Insignares

as “meaningful,” Majority Op. at 8, but the presence of a new judgment

authorizing the prisoner’s confinement is the only meaningful difference under the

statute. As we reiterated in Insignares, “the existence of a new judgment is

dispositive.” 755 F.3d at 1280 (emphasis added) (quoting Magwood, 561 U.S. at

338, 130 S. Ct. at 2800). And the new judgment must be a new “judgment

authorizing the prisoner’s confinement.” Id. at 1279 (emphasis omitted) (quoting

Magwood, 561 U.S. at 332, 130 S. Ct. at 2797). Contrary to the majority opinion,

our decision in Insignares never held—or even suggested—that any order affecting

a prisoner’s sentence would necessarily constitute a “new judgment” for purposes

of section 2244. Instead, we repeatedly stressed that the Florida trial court had

entered a corrected sentence after it granted Insignares’s motion under Rule

3.800(a). See, e.g., id. at 1281 (“The 2009 resentencing by the state judge resulted

in a new judgment.” (emphasis added)); id. at 1275 (“Because resentencing by the

state judge resulted in a new judgment, . . . we conclude Insignares’s petition is not

successive.” (emphasis added)).

37 Case: 12-12653 Date Filed: 01/29/2016 Page: 38 of 67

I fully appreciate that Insignares is the law of this Circuit and binds this

panel, whether or not it was correctly decided. Cf. Majority Op. at 19. But

“opinions are to be read in the light of the facts of the case under discussion” and

“[t]o keep opinions within reasonable bounds precludes writing into them every

limitation or variation which might be suggested by the circumstances of cases not

before the Court.” Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165,

168 (1944). Our decision in Insignares addressed a collateral attack on a new

judgment authorizing the prisoner’s confinement. Extending it to a case like this

one where no such judgment exists not only misreads Insignares but also conflicts

with the plain text of the statute.

Nor is the majority opinion remotely consistent with the purposes of the

statute. Cf. Majority Op. at 13–14. In what should raise a massive red flag to any

student of the history of habeas law, the majority’s interpretation makes it easier to

file a federal habeas petition after the Antiterrorism and Effective Death Penalty

Act of 1996 than before that watershed statute was enacted. See generally Gilbert

v. United States, 640 F.3d 1293, 1310–11 (11th Cir. 2011) (en banc). Before 1996,

Patterson’s second petition would be considered an “abuse of the writ” because it

raises claims that he could have raised in his first petition. McCleskey v. Zant, 499

U.S. 467, 498, 111 S. Ct. 1454, 1472 (1991). It would be barred unless Patterson

could prove either cause and prejudice or a fundamental miscarriage of justice. Id.

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at 494–95, 111 S. Ct. at 1470. Yet, the majority allows him to file a second petition

when he could prove neither exception—a poor interpretation of a statute that was

enacted to promote “greater finality of state . . . court judgments in criminal cases,”

Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004) (en

banc), and to impose “new and tighter limits on successive petitions,” Suggs v.

United States, 705 F.3d 279, 285 (7th Cir. 2013). True, the Antiterrorism and

Effective Death Penalty Act partially modifies the doctrine of abuse of the writ

when it defines “second or successive” with respect to “the judgment challenged,”

instead of the “claims” raised. Magwood, 561 U.S. at 333–36, 130 S. Ct. at 2797–

99. But that textual modification does not apply here because Patterson is raising

the same claims and challenging the same judgment. Outside of the modification

identified in Magwood, seven Justices have explained that the doctrine of abuse of

the writ should continue to guide our interpretation of section 2244(b). See id. at

343, 130 S. Ct. at 2803 (Breyer, J., joined by Stevens and Sotomayor, JJ.,

concurring in part and concurring in the judgment); id. at 344, 130 S. Ct. at 2803–

04 (Kennedy, J., joined by Roberts, C.J., and Ginsburg and Alito, JJ., dissenting).

The majority opinion does not heed that instruction.

The majority argues that its opinion somehow promotes finality, federalism,

and comity, Majority Op. at 13–14, but that’s a laugher. Leaving aside the fact that

the State of Florida argues for the opposite result, the majority opinion will greatly

39 Case: 12-12653 Date Filed: 01/29/2016 Page: 40 of 67

expand the opportunities for federal courts to reopen and reexamine the criminal

judgments of state courts. A prisoner will be able to file another petition for a writ

of habeas corpus any time a state court issues an order affecting his sentence—for

example, an order removing a restitution obligation or a fine, an order reducing a

sentence for substantial assistance to the government or based on a reduced

sentencing guideline, or an order shortening a term of probation. The majority’s

rule will not only undermine the bar on second or successive petitions in section

2244(b), but it will also undermine the one-year statute of limitations in section

2244(d) because both provisions use the same definition of “judgment.” See

Insignares, 755 F.3d at 1281. The corresponding blow to the finality of criminal

judgments will be substantial. A prisoner in Florida, for example, can forever hold

out hope for another round of federal habeas review because Florida allows

prisoners to file motions to correct an illegal sentence “at any time.” Fla. R. Crim.

P. 3.800(a). This ever-looming specter of federal review will torpedo Florida’s

interest in “insuring that there will at some point be the certainty that comes with

an end to litigation, and that attention will ultimately be focused not on whether a

conviction was free from error but rather on whether the prisoner can be restored to

a useful place in the community.” Isaac, 456 U.S. at 127, 102 S. Ct. at 1571

(quoting Sanders v. United States, 373 U.S. 1, 25, 83 S. Ct. 1068, 1082 (1963)

(Harlan, J., dissenting)). And the increase in federal petitions will burden the state

40 Case: 12-12653 Date Filed: 01/29/2016 Page: 41 of 67

officials who must contest them after the “[p]assage of time, erosion of memory,

and dispersion of witnesses.” Id. at 127, 102 S. Ct. at 1572; see also McCleskey,

499 U.S. at 492, 111 S. Ct. at 1469 (“If reexamination of a conviction in the first

round of federal habeas stretches resources, examination of new claims raised in a

second or subsequent petition spreads them thinner still.”). Far from respecting

federalism, the majority will place state prosecutors in a double bind: either contest

the prisoner’s motion for a sentencing alteration, draining precious resources and

forcing the victim to relive the crime and prosecution; or acquiesce in the

prisoner’s motion, triggering another round of federal habeas review and risking

the release of the prisoner due to stale evidence. In short, I frankly do not

understand how the majority can contend that its opinion is friendly to the interests

of federalism, comity, and finality. With friends like these, the states and victims of

crime don’t need enemies.

The majority offers two additional justifications for its opinion, but both are

red herrings. First, the majority explains that Florida law does not require trial

judges to enter a written sentence. Majority Op. at 11–12. True, but irrelevant. If

the Florida trial court in this case had entered a new judgment authorizing

Patterson’s confinement in an oral pronouncement, I would not be dissenting. But

the Florida trial court did not enter any new judgment authorizing Patterson’s

confinement, orally or otherwise. The majority is knocking down a strawman when

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it portrays my position as a “paper judgment” requirement. See id. at 13, 20.

Second, the majority contends that focusing on the entry of a new judgment—

never mind that the statute requires exactly that focus—would mean that

judgments correcting only “clerical” errors would qualify as new judgments. Id. at

13. But this argument cannot be taken seriously. We have already held that clerical

corrections do not create a new “judgment” for purposes of Federal Rule of

Appellate Procedure 4(b)(1)(A). United States v. Portillo, 363 F.3d 1161, 1165–66

(11th Cir. 2004). We would surely extend this holding to the context of second or

successive petitions under section 2244(b), as we have done already in an

unpublished opinion. See United States v. Cano, 558 F. App’x 936, 941 n.6 (11th

Cir.) (“The fact that the district court entered an amended judgment to correct

clerical errors does not result in a new judgment that is exempt from the rules on

second or successive petitions . . . .”), cert. denied, 135 S. Ct. 387 (2014); accord

Marmolejos v. United States, 789 F.3d 66, 71–72 (2d Cir. 2015); United States v.

Ledesma-Cuesta, 476 F. App’x 412, 412 n.2 (3d Cir. 2012); In re Martin, 398 F.

App’x 326, 327 (10th Cir. 2010).

The majority opinion is symptomatic of a disturbing phenomenon in the

federal judiciary: an open disdain for the Antiterrorism and Effective Death

Penalty Act. Recently, three Justices lamented that one of our sister circuits “seems

to have acquired a taste for disregarding AEDPA.” Rapelje v. Blackston, __ U.S.

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__, 136 S. Ct. 388, 389 (2015) (Scalia, J., joined by Thomas and Alito, JJ.,

dissenting from the denial of certiorari). A judge from a different circuit recently

criticized the Act as “misconceived at its inception and born of misguided political

ambition.” Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of

Qualified Immunity: The Court’s Ever Increasing Limitations on the Development

and Enforcement of Constitutional Rights and Some Particularly Unfortunate

Consequences, 113 Mich. L. Rev. 1219, 1221 (2015). And another recently labeled

it “a cruel, unjust and unnecessary law” that “has resulted . . . in much human

suffering” and “should be repealed.” Alex Kozinski, Criminal Law 2.0, 44 Geo.

L.J. Ann. Rev. Crim. Proc. iii, xlii (2015). But the Antiterrorism and Effective

Death Penalty Act is the law of the land and has been for nearly twenty years. The

task of rectifying any perceived defects falls to Congress, not unelected judges.

“[F]ederal judges must obey” the duly enacted laws of Congress, including the

Act, which “some federal judges find too confining.” White v. Woodall, __ U.S.

__, 134 S. Ct. 1697, 1701 (2014). And it is no more legitimate to chip away at the

Act by exalting its judicially imagined “substance” over its clear textual “form”

than it is to ignore the statute entirely. Cf. Majority Op. at 13–14.

Aside from ignoring the text of the statute and undermining its purposes, the

majority’s position could provide a pyrrhic victory for its intended beneficiaries.

True, after the majority opinion, state prisoners will have greater access to the writ.

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But once state officials learn that any change to a prisoner’s sentence will trigger

another round of federal habeas review, they will be less willing to agree to

sentencing alterations that benefit the prisoner. And state courts will be more

hesitant to accept their concessions. Judge Haikala’s opinion balks at the notion

that a state court would decline to correct a conceded “error,” Concurring Op. at 3,

but that is not my point. Courts have the discretion to accept a prosecutor’s

concession, in lieu of reaching the merits, in close cases and in cases where no

error occurred. See Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015);

Casey v. United States, 343 U.S. 808, 808, 72 S. Ct. 999, 999 (1952). But “it has

been the sound practice of Florida’s courts to not accept improper concessions by

the state” when it “might be to the detriment of the victims of crime and/or to the

people of the State of Florida,” Reed v. State, 783 So. 2d 1192, 1196 n.2 (Fla. Dist.

Ct. App. 2001), quashed on other grounds, 837 So. 2d 366 (Fla. 2002), a

possibility that will arise more often after today’s decision. Judge Haikala’s

opinion also predicts that the majority’s decision will benefit defendants because

an increase in the opportunities for federal habeas review will decrease the number

of constitutional errors made in the state courts. See Concurring Op. at 2. But the

Supreme Court long ago stated the opposite: “Rather than enhancing

[constitutional] safeguards, ready availability of habeas corpus may diminish their

sanctity by suggesting to the trial participants that there may be no need to adhere

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to those safeguards during the trial itself.” Isaac, 456 U.S. at 127, 102 S. Ct. at

1571.

When it comes to federal habeas petitions, the more is not the merrier.

Relaxing the bar on second or successive petitions will “prejudice the occasional

meritorious application” for a writ of habeas corpus by “bur[ying] [it] in a flood of

worthless ones.” McCleskey, 499 U.S. at 492, 111 S. Ct. at 1469 (quoting Brown v.

Allen, 344 U.S. 443, 537, 73 S. Ct. 397, 425 (1953) (Jackson, J., concurring in the

result)). Despite the best efforts of Congress to prevent that “flood,” the majority is

praying for rain.

This case is not hard. And nobody should be fooled by the majority’s

atextual decision. After seventeen years of repeated and often frivolous attempts to

overturn his convictions, Patterson is being given another go-round based on an

order issued in 2009 that both the State of Florida and the guardian ad litem

thought was meaningless. That order does not authorize his confinement, and he

does not allege that it violates his constitutional rights. Nor should he: the 2009

order gave him all of the relief that he requested. Today’s decision is gimmickry

that will require the State of Florida to defend a child rapist’s convictions for the

umpteenth time and will threaten a twenty-six-year-old woman to relive the horror

of his monstrous crimes.

I dissent.

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Appendix A Case: 12-12653 Date Filed: 01/29/2016 Page: 47 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 48 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 49 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 50 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 51 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 52 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 53 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 54 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 55 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 56 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 57 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 58 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 59 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 60 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 61 of 67

Appendix B Case: 12-12653 Date Filed: 01/29/2016 Page: 62 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 63 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 64 of 67

Appendix C Case: 12-12653 Date Filed: 01/29/2016 Page: 65 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 66 of 67 Case: 12-12653 Date Filed: 01/29/2016 Page: 67 of 67