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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL LAWRENCE CASSIDY,

Petitioner,

v. 4:20cv131–WS/HTC

MARK INCH,

Respondent.

 

ORDER OF DISMISSAL

Before the court is the magistrate judge’s report and recommendation (ECF

No. 36) docketed August 16, 2021. The magistrate judge recommends that

Respondent’s motion (ECF No. 24) to dismiss Petitioner’s amended petition for

writ of habeas corpus be denied. Respondent has filed objections (ECF No. 39) to

the report and recommendation. For the reasons set out below, the undersigned

declines to adopt the magistrate judge’s report recommendation and grants

Respondent’s motion to dismiss Petitioner’s amended habeas petition as timebarred.

I.

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On May 12, 2012, Petitioner was convicted by a jury of three counts of

sexual battery while in a position of familial or custodial authority. As orally

pronounced by the state trial judge at sentencing, Petitioner was sentenced to 25

years’ imprisonment on Count 1, 10 years’ imprisonment on Count 2, and 15

years’ probation on Count 3, all sentences to be served consecutively. The written

Judgment and Sentence (ECF No. 24–2, p. 4), dated August 8, 2012, correctly

reflected that Petitioner was sentenced to 10 years’ imprisonment on Count 2 and

15 years’ probation on Count 3 but mistakenly reflected that Petitioner was

sentenced to 35 years’ imprisonment on Count 1. 

On May 16, 2014, in response to Petitioner’s motion for modification of

sentence and for clarification of sentence, the state trial judge denied Petitioner’s

motion for modification of sentence, granted the motion for clarification, and

signed an Amended Judgment and Sentence to correctly reflect that Petitioner was

sentenced to 25 years’ imprisonment on Count 1, for a total of 35 years’

imprisonment on Counts 1 and 2. No resentencing hearing was held, and no

changes were made to the sentences that were orally imposed by the trial judge at

sentencing. The state trial judge indicated that the amended sentence related back

to the initial sentence imposed on August 8, 2012. See ECF No. 24–8, p. 6 (stating:

“Done and Ordered in open court at Okaloosa County, Florida this 8th day of

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August 2012, and signed 16th day of May, 2014.”). 

On August 20, 2014, Petitioner filed a motion for postconviction relief on all

three counts. By order dated August 7, 2017, the state trial judge granted

Petitioner’s postconviction motion as to Count 3 only, vacated the Judgment and

Sentence as to Count 3 only, and granted a new trial as to Count 3 only. On

October 10, 2017, after the state entered a nolle prosequi on Count 3, the state trial

judge issued a Second Amended Judgment and Sentence, removing all reference to

Count 3, a count that resulted in a sentence of probation rather than imprisonment.

The state trial judge did not vacate Petitioner’s original sentences of imprisonment

on Counts 1 and 2, did not hold a resentencing hearing, did not alter Petitioner’s

overall term of imprisonment, and did not alter Respondent’s pre-existing authority

to confine Petitioner. As he did on the First Amended Judgment and Sentence, the

state trial judge indicated that the Second Amended Judgment and Sentence related

back to the initial sentence imposed on August 8, 2012. See ECF No. 24–18, p. 6

(stating: “Done and Ordered in open court at Okaloosa County, Florida this 8th day

of August 2012 and signed day of , 2014.”). Immediately below the line

stating “Done and Ordered . . . this 8th day of August 2012,” the trial judge affixed

his electronic signature with the date “10.10.2017.” See id.

II. 

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Petitioner filed his federal petition for writ of habeas corpus on March 9,

2020. The magistrate judge determined that Petitioner’s federal habeas petition was

untimely if the federal habeas limitations period started on August 8, 2012, the date

of Petitioner’s original Judgment and Sentence. However, the magistrate judge

concluded that Petitioner’s 2017 second amended Judgment and Sentence restarted

the federal habeas limitations period, making Petitioner’s petition for writ of

habeas corpus timely. Respondent objects to the magistrate judge’s findings and

conclusion with respect to the timeliness of Petitioner’s habeas corpus petition,

citing as authority the Eleventh Circuit’s decision in Osbourne v. Secretary,

Florida Department of Corrections, 968 F.3d 1261 (11th Cir. 2020).

III.

 In Osbourne, the Eleventh Circuit explained that a Florida court’s amended

sentence, imposed nunc pro tunc, did not qualify as a new judgment for purposes

of restarting the federal habeas limitations period. Osbourne, 968 F.3d at 1267. In

the Eleventh Circuit’s words: “[U]nder Florida law, nunc pro tunc means ‘now for

then’ and when a legal order or judgment is imposed nunc pro tunc it refers, not to

a new or de novo decision, but to the judicial act previously taken.” Id. at 1266; see

also Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1327 (11th Cir. 2017)

(en banc) (explaining that, under Florida law, “[a]n order that relates back to an

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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”). Citing

Osbourne, several federal district courts in Florida have determined that an

amended judgment imposed nunc pro tunc is not a new judgment and does not

restart the federal habeas limitations period. See, e.g., Heiser v. Sec’y, Dep’t of

Corr., No. 8:18cv1365–TPB–AEP, 2021 WL 4295270, at *4 (M.D. Fla. Sept. 21,

2021); James v. Sec’y, Dep’t of Corr., 499 F. Supp. 3d 1169, 1174 (S.D. Fla.

2020). 

IV.

Here, without using the words “nunc pro tunc,” the state trial judge

expressly stated that the Second Amended Judgment and Sentence was “Done and

Ordered . . . on this 8th day of August 2012,” the date of the original Judgment and

Sentence. He thus made clear that the Second Amended Judgment and Sentence

referred “not to a new or de novo decision, but to the judicial act previously taken.”

Osbourne, 968 F.3d at 1266. Under Osbourne, the starting date for determining

timeliness of Petitioner’s habeas petition was August 8, 2012; and when using that

starting date, the magistrate judge correctly determined that Petitioner’s habeas

petition was untimely. As a result, Respondent’s motion to dismiss must be

granted.

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Accordingly, it is ORDERED:

1. Respondent’s motion to dismiss (ECF No. 24) Petitioner’s amended

petition for writ of habeas corpus is GRANTED.

2. Petitioner’s amended petition for writ of habeas corpus (ECF No. 21) is

DISMISSED as time-barred.

3. The clerk shall enter judgment stating: “All claims are dismissed.”

4. The clerk shall close the case.

DONE AND ORDERED this 12th day of October , 2021.

s/ William Stafford 

WILLIAM STAFFORD

SENIOR UNITED STATES DISTRICT JUDGE 

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