USCA11 Case: 21-10233 Date Filed: 01/04/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10233
Non-Argument Calendar
____________________
ARSELES D. MILLER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-01130-TPB-AEP
____________________
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2 Opinion of the Court 21-10233
Before JORDAN, NEWSOM, and HULL, Circuit Judges.
PER CURIAM:
Arseles Devon Miller, a Florida prisoner proceeding pro se,
appeals the district court’s dismissal of his second 28 U.S.C. § 2254
habeas corpus petition. The district court concluded that it lacked
jurisdiction because Miller’s second § 2254 petition was an
unauthorized successive petition. After review, we affirm.
I. FACTUAL BACKGROUND
On August 1, 2005, a Florida trial court sentenced Miller to
a total of 45 years’ imprisonment after a jury convicted him of
one count of delivery of cocaine and two counts of trafficking in
cocaine. In its judgment, the state court included that Miller
should receive 837 days of credit for time he had spent in jail
before the sentence was imposed.
After seeking post-conviction relief in state court, Miller
filed his initial § 2254 habeas corpus petition in December 2008.
He raised two claims of state-law trial error, a Confrontation
Clause claim, five claims of ineffective assistance of trial counsel,
and three claims of ineffective assistance of appellate counsel.
The district court determined that his trial-error claims were
procedurally defaulted and the state court reasonably applied
federal law in denying the remaining claims. The district court
denied his § 2254 petition with prejudice.
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21-10233 Opinion of the Court 3
In 2012, Miller moved the state trial court under Fla. R.
Crim. P. 3.800(a) to correct his sentence to reflect additional days
that he served in jail before sentencing. The state court did not
receive the Rule 3.800 motion until 2018, but it found that Miller
properly filed his motion under Rule 3.800 because Miller’s Rule
3.800 motion contained a stamp and a certificate of service stating
that it was provided to jail officials for mailing on December 16,
2012. 1
On November 21, 2018, the state court granted Miller’s
Rule 3.800 motion in part and directed the clerk of court to
prepare “an amended judgment and sentence to reflect that
Defendant is entitled to 870 days of jail credit.” The state court
then issued an amended judgment, which, as before, reflected
Miller’s 2005 convictions. The amended judgment contained the
same sentence for those convictions—a total of 45 years of
imprisonment, effective August 1, 2005—but stated that Miller
was entitled to 870 days of jail credit, instead of the original 837
days.
In May 2020, Miller filed his second § 2254 petition for a
writ of habeas corpus. He raised five grounds of ineffective
assistance of appellate counsel and asserted that the cumulative
1In 2013, Rule 3.801 was enacted to provide a specific vehicle for requesting
additional jail credit. See Fla. R. Crim. P. 3.801. The state court considered
Miller’s motion as properly filed in 2012 and under Rule 3.800(a) because
Rule 3.801 did not yet exist in 2012.
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4 Opinion of the Court 21-10233
effect of his appellate counsel’s errors was the denial of a fair
appeal process.
The district court found that Miller’s § 2254 petition was a
successive habeas petition that had not been authorized by this
Court. Accordingly, it dismissed his § 2254 petition for lack of
jurisdiction.
II. DISCUSSION
Section 2244(b) provides that a habeas corpus petitioner
seeking to file a second or successive petition in the district court
must first “move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”
28 U.S.C. § 2244(b)(3)(A). 2 Absent such authorization, the district
court lacks jurisdiction to consider a second or successive habeas
petition. Osbourne v. Sec’y, Fla. Dep’t of Corrs., 968 F.3d 1261,
1264 (11th Cir. 2020).
Miller did not receive authorization from this Court to file
his second § 2254 petition in the district court. On appeal, he
argues that our authorization was not necessary because his
§ 2254 petition challenged the 2018 amended judgment and
therefore was not “second or successive.”
2 “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 Corrs., 849 F.3d 1321,
1324 (11th Cir. 2017) (en banc).
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21-10233 Opinion of the Court 5
To determine whether a petition is successive, we examine
the “judgment challenged.” Patterson v. Sec’y, Fla. Dep’t of
Corrs., 849 F.3d 1321, 1325 (11th Cir. 2017) (en banc) (quoting
Insignares v. Sec’y, Fla. Dep’t of Corrs., 755 F.3d 1273, 1277 (11th
Cir. 2014)). “The judgment that matters for purposes of section
2244 is ‘the judgment authorizing the prisoner’s confinement.’”
Id. (quoting Magwood v. Patterson, 561 U.S. 320, 332, 130 S. Ct.
2788 (2010)). To be entitled to another round of federal habeas
corpus review, the prisoner must have obtained “a new judgment
intervening between [his] two habeas petitions.” Magwood, 561
U.S. at 339, 130 S. Ct. 2788.
Furthermore, not every action that alters a sentence
necessarily constitutes a “new judgment.” Osbourne, 968 F.3d at
1265; see Patterson, 849 F.3d at 1327 (explaining that state courts
may grant “[m]any ameliorative changes in sentences . . . as a
matter of course,” and the relevant question for § 2244 is not the
“magnitude and type of change” but whether a new order
authorizes the prisoner’s confinement). In Osbourne, this Court
held that a 2014 Florida amended judgment entered nunc pro
tunc (meaning “now for then”) was not a new judgment because
it “related back to the date of the initial judgment.” Id. at 1267.
We explained that, “[i]n light of the trial court’s nunc pro tunc
designation when issuing Osbourne’s amended sentence, the date
of Osbourne’s sentences and conviction remained April 21, 2003.”
Id. at 1266. Thus, Osbourne was “still confined pursuant to the
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6 Opinion of the Court 21-10233
2003 judgment,” and his latest § 2254 was an unauthorized
successive petition. Id. at 1267.
Here, the district court correctly found that the order of
the Florida court and the ensuing amended judgment did not
result in a “new judgment” for purposes of § 2244. Miller argues
that, because the amended judgment was not entered nunc pro
tunc, it is a new judgment. Although the state court here did not
use that exact phrase, the amended sentence was, effectively,
imposed nunc pro tunc, as it specified that the sentences on all
three counts were “Effective 8/01/05”—the date of the original
judgment—and did not change or modify the sentence that Miller
is currently serving except to credit him for 870 days of jail time
rather than the previous 837. The order and amended judgment
merely corrected a clerical error in Miller’s sentence. See Hagley
v. State, 140 So. 3d 678, 679 (Fla. Dist. Ct. App. 2014) (“Florida has
long recognized a court’s inherent power to correct clerical errors
such as calculation of jail credit.”); Luke v. State, 672 So. 2d 654,
655 (Fla. Dist. Ct. App. 1996) (“[T]he court’s recitation of the
number of days’ credit for time served is merely a ministerial
act.”).
In other words, the judgment authorizing Miller’s
custody—which is “[t]he judgment that matters for purposes of
section 2244”—has not changed. Patterson, 849 F.3d at 1325-26;
see Osbourne, 968 F.3d at 1266. Miller is still confined pursuant
to the 2005 judgment. See Osbourne, 968 F.3d at 1267.
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21-10233 Opinion of the Court 7
Miller’s second § 2254 petition, which collaterally attacks
his 2005 convictions and total sentence, is a successive petition.
Because he neither sought nor received authorization from this
Court before filing, the district court did not have jurisdiction to
consider it. Accordingly, we affirm the district court’s dismissal of
Miller’s second § 2254 petition.
AFFIRMED.