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[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
_______________________
(March 3, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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This appeal requires us to decide whether a consent order that a state
prisoner not undergo chemical castration allows him to attack his eighteen-year-old
convictions a second time, notwithstanding the statutory bar of successive
petitions, 28 U.S.C. § 2244(b)(1). In 1998, a Florida jury convicted Ace Patterson
of burglary, aggravated kidnapping of a child, and two counts of capital sexual
battery. The trial court sentenced him to life imprisonment and chemical castration.
Patterson then filed several unsuccessful collateral attacks in state court and a
petition for a writ of habeas corpus that the district court dismissed as untimely. In
2009, Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P. 3.800,
on the ground that the trial court failed to comply with the statutory prerequisites
for chemical castration. After the state and the victim’s guardian ad litem
consented to Patterson’s motion, a Florida court granted it and ordered that he not
undergo chemical castration. But the Florida court did not enter a new judgment or
order commanding the Secretary of the Department of Corrections to imprison
him. Patterson then filed another federal petition that attacked his convictions. The
district court dismissed that petition as “second or successive.” § 2244(b)(1).
Patterson argues that the order that he not undergo chemical castration constitutes a
new “judgment,” 28 U.S.C. § 2254(b)(1), that makes his latest petition not second
or successive under Magwood v. Patterson, 561 U.S. 320 (2010). But because
Patterson is not “in custody pursuant to,” § 2254(b)(1), the consent order that he
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not undergo chemical castration, that order does not trigger a new round of federal
collateral review. See Magwood, 561 U.S. at 332–33. We affirm the dismissal of
Patterson’s petition as second or successive.
I. BACKGROUND
Ace Patterson is a prisoner in the custody of the Secretary of the Florida
Department of Corrections. In 1997, he visited his cousin and his cousin’s fiancée
at their home in Madison County, Florida. There, the couple introduced Patterson
to their eight-year-old daughter before she went to bed. Patterson ate dinner and
spent time with the couple and then left for the night. But he later returned
uninvited.
In the middle of the night, Patterson broke into his cousin’s home and lifted
his cousin’s sleeping eight-year-old daughter out of her bed. He carried her
outside, brought her to the woods, and raped her. When she tried to scream,
Patterson gagged her by sticking his fingers down her throat. When she tried to
escape, Patterson grabbed her leg, dragged her back into the dirt, and raped her
again. After the assault, the girl found her way back home. Her parents awoke to
the sound of their eight-year-old daughter knocking on the front door—crying,
covered in dirt, missing a clump of hair, and covered in scratches and bruises. The
medical examiners later discovered dirt in her vagina and severe vaginal
lacerations.
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In 1998, a jury convicted Patterson of burglary, aggravated kidnapping of a
child, and two counts of capital sexual battery. The Florida trial court sentenced
him to 311 months of imprisonment for the burglary and kidnapping convictions
and to consecutive sentences of life imprisonment and chemical castration for the
sexual battery convictions. The sentencing form “committed [Patterson] to the
custody of the Department of Corrections” and directed the Department to “keep
and safely imprison” Patterson for the remainder of his life. A state appellate court
later affirmed his convictions and sentences. Patterson v. State, 736 So. 2d 1185
(Fla. Dist. Ct. App. 1999).
Patterson then initiated a flurry of collateral attacks against his convictions,
including four petitions for writs of habeas corpus in state court and an ethics
complaint against the prosecutor who tried his case. His efforts failed, and a
Florida appellate court warned him that “the filing of any further successive and/or
frivolous petitions or appeals may result in the imposition of sanctions.” Patterson
v. State, 788 So. 2d 397 (Fla. Dist. Ct. App. 2001).
In 2006, Patterson filed his first federal petition for a writ of habeas corpus.
He alleged that his convictions were secured in violation of the Due Process Clause
of the Fourteenth Amendment, the Self-Incrimination Clause of the Fifth
Amendment, and the right to effective assistance of counsel under the Sixth
Amendment. The district court dismissed his petition as untimely. Ordinarily, that
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decision would have brought closure to the victim of his crimes, who was by then
eighteen years old.
Patterson then pursued a different line of attack. Instead of challenging his
convictions, he challenged the portion of his sentence that required chemical
castration. Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P.
3.800, on the ground that the trial court did not comply with the statutory
prerequisites for chemical castration. The State of Florida and the guardian ad
litem for the victim assented to Patterson’s motion. With Patterson imprisoned for
life, the prosecutor and guardian ad litem viewed chemical castration as a “moot
point” and believed that contesting his motion was not worth “expos[ing] the
victim to the painful remembrance of the Defendant’s actions against her.”
In 2009, the Florida trial court granted Patterson’s motion in an order that
stated, “[T]he Defendant shall not have to undergo [chemical castration] as
previously ordered by the Court at his sentencing in the above styled matter.” The
2009 order did not vacate Patterson’s sentence and replace it with a new one. Nor
did it direct the Department of Corrections to hold Patterson or perform any
affirmative act.
After his success in state court, Patterson resumed his attack on his 1998
convictions in federal court. In 2011, he filed a second petition for a writ of habeas
corpus, which again alleged that his convictions were secured in violation of the
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Fifth, Sixth, and Fourteenth Amendments. A magistrate judge recommended
dismissing Patterson’s petition as second or successive because Patterson was “not
in custody pursuant to” the 2009 order. The district court adopted that
recommendation and dismissed Patterson’s petition as second or successive.
A divided panel of this Court reversed. Patterson v. Sec’y, Fla. Dep’t of
Corr., 812 F.3d 885 (11th Cir. 2016), reh’g en banc granted, opinion vacated, 836
F.3d 1358 (11th Cir. 2016). The panel concluded that Patterson’s petition was not
second or successive because Patterson was in custody pursuant to a new
judgment—the order that he not undergo chemical castration. We vacated the
panel opinion and ordered rehearing en banc. We appointed Professor Erica
Hashimoto to represent Patterson throughout this appeal. We thank Professor
Hashimoto for her excellent brief and oral argument in keeping with the highest
tradition of the legal profession.
II. STANDARD OF REVIEW
We review de novo whether a petition for a writ of habeas corpus is second
or successive. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011).
III. DISCUSSION
After a state prisoner has had a trial, a direct appeal, and an opportunity for
collateral review in the state courts, he typically gets one, and only one, chance to
collaterally attack his conviction in federal court. With exceptions not relevant
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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
(1998). Finality, in turn, is essential to achieving the goals of our criminal justice
system: “Deterrence depends upon the expectation that ‘one violating the law will
swiftly and certainly become subject to punishment, just punishment.’
Rehabilitation demands that the convicted defendant realize that ‘he is justly
subject to sanction, that he stands in need of rehabilitation.’” Engle v. Isaac, 456
U.S. 107, 127 n.32 (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
(emphasis omitted) (quoting Wilkinson v. Dotson, 544 U.S. 74, 83 (2005)). This
conclusion follows from the text of the statute. Section 2244(b) refers to second or
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successive petitions “under section 2254.” 28 U.S.C. § 2244(b). And section 2254
governs petitions that challenge “the judgment 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 v. Stewart, 549 U.S. 147, 153
(2007).
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, but the
new judgment must be a “judgment authorizing the prisoner’s confinement.” Id. at
332 (emphasis omitted) (quoting Dotson, 544 U.S. at 83). For example, in
Magwood, the district court granted a prisoner’s first habeas petition and vacated
his sentence. Id. at 326. The state court then conducted a new sentencing hearing
and entered a new judgment and sentence of imprisonment. Id. When the prisoner
filed a second habeas petition, the Supreme Court held that it was not second or
successive because the petition was the prisoner’s first challenge to the new prison
sentence. Id. at 339. Although the prisoner’s second petition restated the same
errors as his first petition, the errors he alleged were new because at the
resentencing hearing, the state court heard and rejected the prisoner’s arguments a
second time. Id. And “[a]n error made a second time is still a new error.” Id.
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The district court correctly concluded that the only judgment that authorizes
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 his first federal petition was dismissed as untimely, Patterson lost his
one chance to obtain federal habeas review of his 1998 judgment. See Jordan v.
Sec’y, Dep’t of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007). Because Patterson’s
2011 petition challenges the 1998 judgment a second time, the district court
correctly dismissed it as second or successive. The 2009 order that granted
Patterson’s uncontested motion to correct his sentence does not trigger a new
round of federal review.
Our precedent in Insignares does not support Patterson’s argument.
Although Patterson and Insignares both filed successful motions to correct an
illegal sentence under Florida Rule of Criminal Procedure 3.800(a), the Florida
trial court in Insignares went a step further: it also changed Insignares’s term of
imprisonment and “entered [a] corrected sentence and new judgment.” 755 F.3d at
1277. This corrected sentence “committed [Insignares] to the custody of the
Department of Corrections.” Here, the Florida trial court never issued a new prison
sentence—in writing or otherwise—to replace Patterson’s 1998 sentence. The
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2009 order bars the imposition of chemical castration, but it does not otherwise
address the term of Patterson’s imprisonment. In short, Insignares had an
intervening “judgment authorizing [his] confinement,” but Patterson does not. Id.
at 1279 (emphasis omitted) (quoting Magwood, 561 U.S. at 332).
Patterson and the dissent contend that the 1998 sentencing form and the
order that Patterson not undergo chemical castration must be read together to
describe his conviction and current sentence accurately, see Dissenting Op. at 23–
24, but the text of the governing statute makes clear that the only judgment that
counts for purposes of section 2244 is the judgment “pursuant to” which the
prisoner is “in custody.” 28 U.S.C. § 2254; see Magwood, 561 U.S. at 332–33;
Burton, 549 U.S. at 156. And Patterson is not in custody pursuant to the 2009 order
because it does not authorize anything. Magwood, 561 U.S. at 332. Instead, it
states only in the negative that Patterson “shall not have to undergo [chemical
castration].” That the Florida Department of Corrections must read both forms
together to determine the scope of Patterson’s confinement does not transform the
2009 order into a judgment that authorizes Patterson’s custody. The 1998 judgment
is the only judgment that allows the Department to imprison Patterson. The 2009
order imposes no sentence and gives the Department no authority.
Patterson also argues that any order that alters a sentence necessarily
constitutes a new judgment, but this argument is difficult to square with our
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precedent that suggests that not all changes to a sentence create a new judgment.
We have held that when a court corrects a clerical mistake, no new judgment arises
for purposes of Federal Rule of Appellate Procedure 4(B)(1)(A). See United States
v. Portillo, 363 F.3d 1161, 1165–66 (11th Cir. 2004). Although we have not
applied this precedent in the context of second petitions, we reject the notion that
the Antiterrorism and Effective Death Penalty Act, the “central purpose” of which
“was to ensure greater finality of state and federal court judgments in criminal
cases,” Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004)
(en banc), is more accommodating of untimely and successive petitions than Rule
4(b)(1)(A) is of untimely direct appeals. And, contrary to the dissent’s assertion,
Dissenting Op. at 25, because an order that corrects a clerical error likely would
not create new judgment, a petitioner would not be entitled to a second round of
habeas review. See Magwood, 561 U.S. at 331.
Recognizing that his suggested rule runs counter to Portillo, Patterson
attempts to limit his test to whether a prisoner’s sentence has materially changed,
but this limitation still misses the point. The relevant question is not the magnitude
of the change, but the issuance of a new judgment authorizing the prisoner’s
confinement. Id. at 332. The state court did not issue a new judgment authorizing
Patterson’s confinement when it granted Patterson’s motion to correct his sentence.
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And the 1998 judgment remains the only order that commands the Secretary to
imprison Patterson.
Many ameliorative changes in sentences that state courts might grant as a
matter of course, such as the removal of a fine or a restitution obligation, would
trigger a new round of federal habeas review under Patterson’s proposed standard
of “material change.” At oral argument, Patterson’s counsel stated that orders that
remove restitution and fines might be “in a slightly different category” than orders
that remove chemical castration because fines and restitution are not part of a
prisoner’s custodial sentence and cannot be challenged in a habeas proceeding. See
Mamone v. United States, 559 F.3d 1209, 1211 (11th Cir. 2009). But whether a
challenge to the removed portion of the sentence was initially cognizable in a
habeas proceeding is irrelevant to whether the removal of that condition produces a
new judgment. Patterson’s focus on the magnitude and type of change to the
sentence is beside the point. The only question is whether the 2009 order
authorizes his confinement.
The dissent argues that, in the wake of our ruling, “all Florida prisoners who
obtain a favorable Rule 3.800(a) order striking or vacating part of their initial
sentence . . . will simply have the state trial court enter a new judgment,”
Dissenting Op. at 23, but the dissent cites no authority for this proposition. And it
is unclear that Florida law would entitle every prisoner to that remedy. Rule
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3.800(a) allows a court to correct an illegal sentence “at any time” if the “records
demonstrate on their face an entitlement” to relief. This rule encompasses clerical
errors, Carson v. State, 489 So. 2d 1236, 1238 (Fla. Dist. Ct. App. 1986), which
“generally relate back” to the date of initial judgment. R. R. Ricou & Sons Co. v.
Merwin, 113 So. 745, 746 (Fla. 1927). An order that relates back to an original
sentence merely amends the original order and may not entitle the defendant to
vacatur of the original judgment and entry of a new one. That Rule 3.800(a)
encompasses clerical errors, which relate back, suggests that other modifications
under Rule 3.800(a) may also relate back to the original sentencing and would not
require a judge to vacate the original sentence and issue a new one. And we know,
of course, that the judge in Patterson’s case did not do so.
As a practical matter, Patterson’s proposed resolution of this appeal might
hurt prisoners more than it helps. To be sure, if any change to a sentence triggers
another opportunity for federal review, state prisoners would potentially have
greater access to the federal writ of habeas corpus. But then state officials would be
less willing to agree to sentencing changes that benefit prisoners, and state courts
would be more hesitant to approve them. 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 Casey v. United States, 343 U.S. 808, 808 (1952);
Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015). But Florida’s courts
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“have a constitutional and statutory duty not to accept an inappropriate concession”
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
would arise more often if a merciful concession required prosecutors to defend and
victims to endure a new round of federal habeas review.
The dissent contends that we “seem[] to be saying” that prosecutors and
state courts would refuse to correct illegal sentences under clear state law to avoid
additional federal habeas review, see Dissenting Op. at 26, but that contention
constructs a straw man. Nothing in our analysis suggests that prosecutors and state
courts would refuse to modify an illegal sentence. Instead, our analysis recognizes
that prosecutors may sometimes consent to motions under Rule 3.800(a) even
when the prisoner’s sentence may not be illegal. Here, the record establishes that
the prosecution assented to Patterson’s motion to remove chemical castration from
his sentence because it viewed chemical castration as a “moot point” in the light of
Patterson’s life sentence and because contesting the motion was not worth
“expos[ing] the victim to the painful remembrance of [Patterson’s] actions against
her.” But we doubt that the prosecution would have so readily assented to
Patterson’s motion had it known that the resulting order would subject Patterson’s
victim to a second round of lengthy habeas review.
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The Antiterrorism and Effective Death Penalty Act gives state prisoners only
one opportunity to challenge their sentence in federal court. Patterson wasted that
opportunity ten years ago when he filed his first petition late. Patterson would have
us hold that any order that changes a prisoner’s sentence is a new judgment that
triggers a new round of federal review. But the only judgment that matters is the
judgment that authorizes Patterson’s confinement—the very judgment that
Patterson has been attacking for eighteen years and that he wants to attack again.
The Act requires that we say “no more.” The district court correctly dismissed
Patterson’s petition as second or successive.
IV. CONCLUSION
We AFFIRM the dismissal of Patterson’s petition for a writ of habeas
corpus.
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ED CARNES, Chief Judge, concurring:
I fully concur in the well-reasoned majority opinion, and write separately
only to make clear that this Court does not reach the two questions contained in the
second issue that we asked the parties to brief. We stated those questions as
follows:
Should Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014),
and Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007),
be overruled insofar as either of them [1] allows a non-detrimental
change in a prisoner’s sentence to constitute a new judgment under
Magwood, or [2] allows a prisoner who obtains a non-detrimental
change in his sentence to also challenge his original, undisturbed
conviction as though the conviction had occurred at the date of the
change in the sentence?
Regardless of the first question, we know from the Magwood opinion itself
that the second question was not decided in that case because the Supreme Court’s
opinion tells us it was not. The Court expressly stated: “This case gives us no
occasion to address” whether its reasoning “would allow a petitioner who obtains a
conditional writ as to his sentence to file a subsequent application challenging not
only his resulting, new sentence, but also his original, undisturbed conviction.”
Magwood v. Patterson, 561 U.S. 320, 342, 130 S. Ct. 2788, 2802 (2010). In his
second or successive application, Magwood had not attempted to challenge his
undisturbed conviction, only his new sentence. Id. The Supreme Court did note
that “[s]everal Courts of Appeals have held that a petitioner who succeeds on a
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first habeas application and is resentenced may challenge only the portion of a
judgment that arose as a result of a previous successful action.” Id. at 342 n.16,
130 S. Ct. at 2802 n.16 (quotation marks omitted) (citing decisions of the Second,
Sixth, and Seventh Circuits).
Because Patterson’s second or successive habeas application does challenge
his conviction, this case might have presented the undisturbed conviction/new
sentence issue that Magwood reserved, allowing us to decide whether to overrule
our Insignares and Ferreira decisions. It does not, however, because there was no
new judgment in this case. As a result, that issue is one for another day.
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JORDAN, Circuit Judge, joined by WILSON, MARTIN, ROSENBAUM and
JILL PRYOR, Circuit Judges, dissenting:
There are legitimate questions about whether Insignares v. Secretary,
Florida Department of Corrections, 755 F.3d 1273 (11th Cir. 2014), correctly
applied Magwood v. Patterson, 561 U.S. 320 (2010), as to when there is an
intervening judgment under 28 U.S.C. §§ 2244(b) & 2254(b). But if we are going
to leave Insignares undisturbed, I “do not see how [that case] and [the majority’s
decision here] can coexist.” United States v. Bryan, 339 U.S. 323, 343 (1950)
(Jackson, J., concurring). As explained in the now-vacated panel opinion:
A “basic principle of justice [is] that like cases should be decided
alike,” Martin v. Franklin Capital Corp., 546 U.S. 132, 139, 126 S.Ct.
704, 163 L.Ed.2d 547 (2005), and [there is] 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 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
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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.
Patterson v. Sec’y, Fla. Dep’t of Corr., 812 F.3d 885, 888–89 (11th Cir. 2016)
(some language in brackets added). The majority tries valiantly to explain why
Insignares does not govern, but its reasons—to the extent one can ascertain them—
are unconvincing.
*******
The majority says that, under Magwood, the only judgment that authorizes
Mr. Patterson’s confinement is the original 1998 judgment, which has never been
vacated or replaced. See Maj. Op. at 9. That, I think, is wrong on a number of
levels.
A criminal judgment (even under AEDPA) consists of the conviction and the
sentence. See Burton v. Stewart, 549 U.S. 147, 156–57 (2007); Ferreira v. Sec’y,
Dep’t of Corr., 494 F.3d 1286, 1292–93 (11th Cir. 2007). Not only has the
Supreme Court emphasized the critical role that the sentence plays in a judgment,
dictionaries from the time of AEDPA’s enactment confirm this understanding. See
Barron’s Law Dictionary 271 (4th Ed. 1996) (defining “judgment of conviction” as
“the sentence in a criminal case formally entered in the clerk’s records”); Black’s
Law Dictionary 842 (6th Ed. 1990) (stating that “‘sentence’ and ‘judgment’ are
synonymous in a criminal action”).
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Chemical castration is a criminal punishment under Florida law, see Tran v.
State, 965 So. 2d 226, 229 (Fla. 4th DCA 2007) (holding that chemical castration,
which has been characterized by the Florida Legislature as a penalty, “is part of the
defendant’s punishment and sentence”), and the Rule 3.800(a) order (however one
wants to characterize it) eliminates that punishment from Mr. Patterson’s sentence.
That order constitutes part of Mr. Patterson’s sentence because it substantively
changes the way that the Department of Corrections can execute the initial
judgment. Everyone but the majority recognizes this reality.
*******
Apparently sensing that this first reason is insufficient, the majority pivots,
and says that Insignares is distinguishable because the state trial court in that case,
in addition to issuing a Rule 3.800(a) order, also entered a new judgment. See Maj.
Op. at 9–10. This, essentially, mirrors the position that Florida took at oral
argument:
Member of the Court: . . . I want to know why you think—and there
are various possible answers—but I want to know why you think this
is not a new judgment. First, you told me it didn’t change his
confinement, and we talked about that. Now you say that Insignares
was different and you started on confinement grounds, but now, you
say that there was a new piece of paper called a judgment in
Insignares, which made all the difference in the world. What is the
difference between Insignares and this case in your opinion?
Counsel for the State: In my opinion, in Insignares, a new judgment
and sentence, that is required by the Florida Department of
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Corrections to have in order to lawfully have someone in their
custody exists in Insignares. . . .
Member of the Court: So it’s . . . the piece of paper called a
judgment?
Counsel for the State: It is the piece of paper that complies with
Florida law that says this is the judgment that gives you the authority
to hold this person in custody.
Member of the Court: Under that theory . . . even if Mr. Patterson
doesn’t get relief in this case, someone who is in Mr. Patterson’s
exact situation tomorrow, gets a sentence of chemical castration
vacated pursuant to a 3.800 order, asks the judge to resentence him or
her, gets a full resentencing, gets a new judgment minus the sentence
of chemical castration—that person has a new judgment?
Counsel for the State: That is a new judgment.
Member of the Court: So it’s the piece of paper that matters?
Counsel for the State: It is a piece of paper. It really is.
Member of the Court: Got it. Okay. That is your answer? It is the
piece of paper that matters.
Counsel for the State: That is my answer.
Audio of En Banc Oral Argument at 27:59–29:27.
It is true that there was a new formal judgment in Insignares, but that, it
seems to me, is irrelevant. First, Florida law does not require that a criminal
judgment be in writing. See Patterson, 812 F.3d at 890; Flowers v. State, 351 So.
2d 387, 389 (Fla. 1st DCA 1977); Fla. R. Crim. P. 3.700. Second, Florida law
indicates that Rule 3.800(a) orders can be tantamount to judgments and have the
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force of law when—as here—they impose a new sentence and end judicial labor.
See Adams v. State, 949 So. 2d 1125, 1126–27 (Fla. 3d DCA 2007); State v.
Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002); State v. Delvalle, 745 So. 2d
541, 542 (Fla. 4th DCA 1999). Accord De La Osa v. Wells Fargo Bank, N.A., No.
3D14–1455, 2016 WL 7232272, at *3 (Fla. 3d DCA Dec. 14. 2016) (en banc)
(explaining the interchangeability of the terms “order” and “judgment” under
Florida law).
This, of course, is why the Florida Department of Corrections acknowledges
that it cannot chemically castrate Mr. Patterson. If state officials admit that the
Rule 3.800(a) order affects and modifies Mr. Patterson’s initial sentence, i.e.,
judgment, one is left to wonder why the majority thinks that the order amounts to
nothing more than the ineffectual and legally insignificant musings of a state trial
court.
We have been told, time and again, that AEDPA—in both text and spirit—is
meant to respect the way that states administer their criminal justice systems.
Here, however, the majority is not concerned about the way that Florida law
operates. It ignores Florida law holding that chemical castration is a criminal
punishment, and refuses to recognize that under Florida law a Rule 3.800(a) order
like the one here can have the force of law. And it relegates to the dustbin the
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Department of Corrections’ concession that, due to the state trial court’s order, it
cannot chemically castrate Mr. Patterson. So much for respect.
*******
If this case is all about a piece of paper, then we have wasted valuable time
and resources in convening en banc. If what matters is a formal paper called a
judgment, then all Florida prisoners who obtain a favorable Rule 3.800(a) order
striking or vacating part of their initial sentence—i.e., their initial punishment—
will simply have the state trial court enter a new judgment setting out the current
sentence and incorporate the terms of the Rule 3.800(a) order in the new judgment.
That sort of a judgment, apparently, will suffice under Magwood.
The majority nevertheless suggests that Florida law may not entitle every
prisoner who obtains Rule 3.800(a) relief to a new paper judgment. See Maj. Op.
at 12–13. But this suggestion should not be taken seriously, for the majority does
not identify a principle of Florida law to support its theory. It offers only that the
correction of a clerical error is an example of a situation in which a change “relates
back” to the original sentence so as to not require the court to enter a new
judgment. This case, of course, does not involve the correction of a clerical error,
so the majority’s example is not helpful.
Even the majority does not really believe that this case turns on whether
there is a new piece of paper called a judgment, for it provides yet another reason
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for its holding. According to the majority, the Rule 3.800(a) order does not affect
Mr. Patterson’s confinement because it “does not authorize anything.” Maj. Op. at
10. The majority says this confidently, even though it recognizes that the Florida
Department of Corrections must read the 1998 judgment together with the Rule
3.800(a) order to “determine the scope of [Mr.]Patterson’s confinement.” Id. In
Magwood, the Supreme Court rejected the state’s argument that custody is the
critical concept in determining whether a habeas corpus petition is second or
successive, see 560 U.S. at 333–34 (explaining that the “judgment” is what
matters), yet here the majority seems to give primacy to custody, and bases its
decision on whether the Rule 3.800(a) order gives the Department of Corrections
the power to confine Mr. Patterson. I do not know why the majority thinks that the
rationale in Magwood can be jettisoned like driftwood.
*******
The majority analogizes to an order which corrects a clerical error, see Maj.
Op. at 10–11, which we have indicated does not constitute a new judgment under
the Federal Rules of Appellate Procedure. See United States v. Portillo, 363 F.3d
1161, 1165–66 (11th Cir. 2004). But the majority is setting up the proverbial straw
man, because there is no way anyone can say that an order which prohibits the
substantive punishment of chemical castration is in any way clerical.
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Indeed, it is the majority’s position that may one day cause a conflict with
cases like Portillo. Imagine a case in which a Florida court sentences a defendant
to a term of 10 years, but then issues a judgment which mistakenly states that the
sentence is 100 years. No one notices the error until the defendant has been in
custody for 6 years. If the state court issues a new judgment which corrects the
clerical error and commits the defendant to the custody of the Department of
Corrections for (the correct) 10 years, that will, according to the majority’s
apparent rationale, constitute a new judgment under Magwood. There will be a
new piece of paper—the amended judgment—which will be affirmatively worded,
i.e., it will give the Department of Corrections the authority to keep the defendant
in custody, and that judgment will set out the length of his confinement.
I prefer the panel’s approach, which looks to see whether the state court
corrects a legal error and enters a new sentence that is substantively different than
the original sentence. See Patterson, 812 F.3d at 891. It may not be perfect, but it
is more faithful to Insignares than what the majority is offering.
*******
The majority closes by telling us that, “as a practical matter,” the approach
taken by the panel, and endorsed by Mr. Patterson, “might hurt prisoners more than
it helps.” Maj. Op. at 13. In and of itself, the majority’s prediction about the
consequences of today’s decision is neither surprising nor inappropriate. Courts
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often have to consider the practical effects of the principle they are adopting. What
is remarkable is the reason the majority believes its decision is prisoner-friendly.
According to the majority, if the panel approach prevails, “then state
officials would be less willing to agree to sentencing changes that benefit
prisoners, and state courts would be more hesitant to approve them.” Id. I do not
understand. Here, for example, the prosecution conceded error (and the state trial
court granted Rule 3.800(a) relief) because Florida law makes it clear that the
punishment of chemical castration was improperly imposed. See Houston v. State,
852 So. 2d 425, 428 (Fla. 5th DCA 2003).
What the majority seems to be saying is that, in order to preclude a new
round of federal habeas corpus proceedings for state prisoners under Magwood,
state prosecutors may not concede that a sentence has been illegally imposed even
though state law on the subject is clear, and that state courts may decline to correct
a sentence that is undoubtedly illegal under state law even though it is their duty to
do so. In other words, state prosecutors and state courts will bend (or ignore) state
law in order to achieve the purportedly desirable goal of limiting the access of state
prisoners to further federal habeas corpus review.
The majority’s underlying assumption—which I do not share—is as odd as it
is disconcerting. See Patterson, 812 F.3d at 895 (Haikala, J., concurring) (“The
notion that a trial judge would refrain from correcting a sentencing error that all of
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the parties have acknowledged . . . to avoid a potential habeas petition is repugnant
to the judicial office.”). If the majority is right, however, then the trust we place in
state courts to adjudicate issues of federal law (both statutory and constitutional) is
completely misplaced, and the deference we give them under AEDPA is a colossal
and unjustified mistake.
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