[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

No. 18-11004

________________________

D.C. Docket No. 2:16-cv-14325-RLR

DEMETRIUS OSBOURNE, 

 Petitioner-Appellant,

 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(August 7, 2020)

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

BRANCH, Circuit Judge: 

Case: 18-11004 Date Filed: 08/07/2020 Page: 1 of 12
2

Demetrius Osbourne, a Florida prisoner, appeals the district court’s 

dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus for lack of 

jurisdiction as an unauthorized second or successive petition. He argues on appeal 

that his petition was not second or successive because a new judgment was entered 

in 2014. As discussed in further detail below, the state trial court granted in part 

his motion to correct sentence, pursuant to Fla. R. Crim. P. 3.800(a), and issued an 

amended sentence nunc pro tunc, which removed a 10-year mandatory minimum 

term on one of his counts of conviction. After careful review, we conclude that

because the amended sentence was entered nunc pro tunc under Florida law, it 

related back to the date of the original judgment and it was not a “new judgment” 

for purposes of 28 U.S.C. § 2244(b). Consequently, the district court properly 

determined that Osbourne’s latest § 2254 petition was an unauthorized second or 

successive petition over which it lacked jurisdiction, and we affirm. 

I. Background

In 2003, a Florida jury convicted Osbourne of robbery with a deadly weapon 

(firearm) and aggravated battery with a deadly weapon (a firearm). He was 

sentenced to life imprisonment on the robbery offense and a concurrent 15-year 

term on the aggravated battery offense. Each respective sentence included a 

Case: 18-11004 Date Filed: 08/07/2020 Page: 2 of 12
3

10-year mandatory-minimum term of imprisonment for possession of a firearm.1 

Following his sentencing, Osbourne vigorously pursued state postconviction relief, 

and in 2010, he filed a § 2254 federal habeas petition, which was denied on the 

merits. 

Subsequently, in May 2014, Osbourne filed a pro se motion to correct 

sentence in the state trial court, pursuant to Florida Rule of Criminal Procedure

3.800(a),2 in which he argued, among other things, that the 10-year 

mandatory-minimum terms imposed on each count were illegal because the 

charging information failed to allege actual possession of the firearm or reference 

the relevant firearm enhancing statute. Following the State’s response, the trial 

court granted his motion in part and denied it in part. Specifically, the trial court 

agreed that the 10-year mandatory-minimum term for the robbery count “may have 

be in error, although moot” because more than 10 years had passed since 

Osbourne’s sentencing. Nevertheless, the trial court ordered that an “amended 

sentence” be entered, “nunc pro tunc to April 21, 2003, to reflect the deletion of 

1 Under Florida law, a person who is convicted of certain felonies, including robbery and 

aggravated battery, “and during the commission of the offense, such person actually possessed a 

‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001, shall be sentenced to a 

minimum term of imprisonment of 10 years[.]” Fla. Stat. § 775.087(2)(a)(1) (2002).

2 This rule provides in relevant part that: “A court may at any time correct an illegal 

sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, when it 

is affirmatively alleged that the court records demonstrate on their face an entitlement to that 

relief . . . .” Fla. R. Crim. P. 3.800(a)(1).

Case: 18-11004 Date Filed: 08/07/2020 Page: 3 of 12
4

the ten year mandatory minimum on [Osbourne’s] robbery conviction (count one) 

only. The defendant’s sentence remains unchanged in all other respects.” Notably, 

the sentencing form used by the trial court utilized various boxes to indicate the 

action taken, which included options for a “modified,” “amended,” or “corrected”

sentence, or a “resentence.” The trial court selected “amended” sentence with the 

notation that the sentence was “[a]mended to reflect Court Order for deletion of the 

ten year mandatory firearm minimum.” The form also provided that the amended 

sentence was imposed “nunc pro tunc” to April 21, 2003—the date of Osbourne’s 

original judgment. Osbourne appealed the denial in part of his Rule 3.800 motion 

and Florida’s Fourth District Court of Appeal summarily affirmed without written 

opinion. 

Thereafter, in July 2016, Osbourne filed the underlying pro se § 2254 

petition for a writ of habeas corpus, asserting claims of ineffective assistance of 

trial counsel and that the remaining 10-year mandatory-minimum term on the 

aggravated battery conviction violates the due process clause. He maintained that 

the petition was timely because he “was resentenced and a new judgment was 

entered” in 2014. In response, the State argued that the district court should 

dismiss the petition as an unauthorized second or successive § 2254 petition 

because Osbourne had unsuccessfully litigated his initial § 2254 petition in 2010 

and Osbourne had not been resentenced or subject to a new judgment. Rather, the 

Case: 18-11004 Date Filed: 08/07/2020 Page: 4 of 12
5

2014 judgment was simply the “ministerial act of correcting the original judgment 

nunc pro tunc.” 

Upon review, the magistrate judge recommended that Osbourne’s § 2254 

petition be dismissed as an unauthorized second or successive petition because the 

2014 order “had no effect on [Osbourne’s] underlying convictions or sentences, 

and did not result in a ‘new judgment’ for purposes of § 2244(b).” The district 

court adopted the magistrate’s report and recommendation over Osbourne’s 

objections. This appeal followed.3

 

II. Standard of Review

“We review de novo whether a petition for a writ of habeas corpus is second 

or successive.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th 

Cir. 2017) (en banc). 

III. Discussion

With certain exceptions not relevant here, the Antiterrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”) provides that, before a petitioner may file a 

second or successive §2254 habeas petition, the petitioner first must obtain an 

order from this Court authorizing the district court to consider the petition. See

3 Although generally appeals from § 2254 proceedings require a certificate of 

appealability (“COA”), no COA is necessary to appeal the dismissal for lack of subject matter 

jurisdiction of a successive habeas petition because such orders are not “a final order in a habeas 

corpus proceeding.” See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). Instead, 

we may review such a dismissal as a “final decision” under 28 U.S.C. § 1291. Id.

Case: 18-11004 Date Filed: 08/07/2020 Page: 5 of 12
6

28 U.S.C. § 2244(b)(3)(A). Absent authorization from this Court, the district court 

lacks jurisdiction to consider a second or successive habeas petition. See Farris v. 

United States, 333 F.3d 1211, 1216 (11th Cir. 2003). However, “where . . . there is 

a ‘new judgment intervening between the two habeas petitions,’ an application 

challenging the resulting new judgment is not ‘second or successive[.]’” See

Magwood v. Patterson, 561 U.S. 320, 341–42 (2010) (quoting Burton v. Stewart, 

549 U.S. 147, 156 (2007)). In other words, “[w]hether a petition is second or 

successive depends on ‘the judgment challenged.’” Patterson, 849 F.3d at 1325 

(en banc) (quoting Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278 

(11th Cir. 2014)). The conviction and sentence together make up the criminal 

judgment. See Burton v. Stewart, 549 U.S. 147, 156 (2007). Thus, in Osbourne’s

case, we must determine whether the 2014 amended sentence resulted in a new 

judgment for purposes of § 2244. 

We start with what constitutes a new judgment. The Supreme Court 

addressed this issue in Magwood. After being sentenced to death for murder and 

exhausting postconviction relief in the Alabama state courts, Magwood filed a

federal § 2254 petition challenging both his conviction and his sentence. 561 U.S. 

at 323. Magwood’s § 2254 petition was conditionally granted, with directions that 

Magwood either be released or resentenced. Id. The state trial court subsequently 

held a full resentencing, but ultimately imposed the same sentence. Id. at 323, 326. 

Case: 18-11004 Date Filed: 08/07/2020 Page: 6 of 12
7

After again challenging his new death sentence in state court, Magwood filed 

another § 2254 petition raising a fair-warning claim and an ineffective-assistanceof-counsel claim, both of which directly related to the resentencing proceedings. 

Id. at 327–28. The district court sua sponte addressed whether Magwood’s present 

§ 2254 petition was second or successive for purposes of § 2244, concluded it was 

not, and proceeded to address the merits of Magwood’s claims. Id. at 328. On 

appeal, we reversed in part the district court’s ruling as to the successive nature of 

the petition, concluding that Magwood’s fair-warning claim was a prohibited 

second or successive claim under § 2244 because it “challenged the trial court’s 

reliance on the same (allegedly improper) aggravating factor that the trial court had 

relied upon for Magwood’s original sentence.” Id. at 329. In reversing our 

decision, the Supreme Court explained that the phrase “second or successive” in 

§ 2244(b) “must be interpreted with respect to the judgment challenged.” Id. at 

332–33. Accordingly, the Magwood court concluded that because a new, 

intervening judgment was entered following the resentencing, Magwood’s new 

§ 2254 petition which challenged “new errors” made at the resentencing was not 

“second or successive” for purposes of § 2244(b). Id. at 339, 342. In reaching this 

conclusion, the Magwood Court left open the question of whether a petitioner 

could challenge the original, undisturbed conviction in a new § 2254 petition 

where the State imposed only a new sentence. Id. at 342. 

Case: 18-11004 Date Filed: 08/07/2020 Page: 7 of 12
8

Subsequently, in Insignares, we considered the question left open in 

Magwood as to whether a habeas petition is “second or successive” for purposes of 

§ 2244 where it challenges an undisturbed conviction following the imposition of

only a new sentence. 755 F.3d at 1277–78. Specifically, after pursuing federal 

habeas relief, Insignares filed a Rule 3.800 motion to correct his sentence. Id. at 

1277. The state court granted the motion, reduced the mandatory-minimum 

imprisonment term for one of his counts of conviction from 20 to 10 years, and 

“entered a corrected sentence and new judgment.” Id. Insignares then filed a new 

§ 2254 petition. Id. Although the State did not contest that a new judgment was 

entered within the meaning of Magwood for purposes of § 2244, it argued that 

Insignares’s new § 2254 petition was nevertheless “second or successive” because 

it challenged the undisturbed conviction and raised the same issues as his first 

§ 2254 petition. Id. at 1278. We concluded that because there is only one 

judgment, which “is comprised of both the sentence and the conviction,” a habeas 

petition is not second or successive where it follows a new judgment, “regardless 

of whether its claims challenge the sentence or the underlying conviction.” Id. at 

1281. 

Importantly, however, not every action that alters a sentence necessarily 

constitutes a new judgment for purposes of § 2244. For example, in Patterson, we 

emphasized that “[t]he judgment that matters for purposes of section 2244 is ‘the 

Case: 18-11004 Date Filed: 08/07/2020 Page: 8 of 12
9

judgment authorizing the petitioner’s confinement.’” 849 F.3d at 1325 (en banc)

(quoting Magwood, 561 U.S. at 332). We then concluded that the state court’s 

grant of a Florida Rule 3.800 motion to correct sentence and issuance of an order 

removing a sentencing requirement that the defendant undergo chemical castration 

did not constitute a new judgment for purposes of § 2244. Id. at 1325–28. In 

reaching this conclusion, we explained that Patterson’s circumstances were 

distinguishable from Magwood and Insignares because in Patterson’s case the state 

trial court did not issue a new prison sentence. Id. at 1325–26. Rather, the state 

court merely issued an order barring the imposition of the chemical castration 

condition, “but it did not otherwise address the term of Patterson’s imprisonment.” 

Id. at 1326. Consequently, unlike in Magwood and Insignares, there was no 

intervening judgment authorizing Patterson’s confinement, and he was still in 

custody pursuant to his original 1998 judgment. Id. In so holding, we rejected the 

argument that the test for whether there is a new judgment for purposes of § 2244 

should be whether the prisoner’s sentence “has materially changed.” Id. at 1326–

27. We also rejected the argument that “any order that alters a sentence 

necessarily constitutes a new judgment,” noting that state courts often make many 

“ameliorative changes in sentences . . . as a matter of course, such as the removal 

of a fine or a restitution obligation,” and to say that such action results in a new 

judgment every time for purposes of federal habeas review would directly 

Case: 18-11004 Date Filed: 08/07/2020 Page: 9 of 12
10

contradict the central purpose of the AEDPA: “to ensure greater finality of state 

and federal court judgment in criminal cases.” Id. at 1326–27 (quoting Gonzalez v. 

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

these principles in mind, we now address whether the 2014 amended sentence 

entered nunc pro tunc in Osbourne’s case constitutes a “new judgment” for 

purposes of § 2244. 

Although there are clear parallels between Osbourne’s case and Insignares, 

we find in this case the determining factor as to whether the state court judgment is 

a “new judgment” for purposes of § 2244(b) turns on the nunc pro tunc 

designation. Specifically, unlike in Magwood or Insignares, Osbourne’s amended 

sentence was imposed nunc pro tunc under Florida law to the date of the original 

judgment. In Florida, “[a] court may enter an order nunc pro tunc to correct the 

record of an order [a]ctually made, which was either entered incorrectly in the 

court records or not entered at all.” In re Riha’s Estate, 369 So. 2d 404, 404 (Fla. 

2d Dist. Ct. App. 1979). And under Florida law, “[n]unc 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, concerning 

which the record was absent or defective.” Colon v. State, 909 So. 2d 484, 487 

(Fla. 5th Dist. Ct. App. 2005)(quoting Briseno v. Perry, 417 So.2d 813, 814 (Fla. 

5th Dist. Ct. App. 1982)); see also Boggs v. Wainwright, 223 So.2d 316, 317 (Fla. 

Case: 18-11004 Date Filed: 08/07/2020 Page: 10 of 12
11

1969) (“That a court of record may, even after the term has expired, correct clerical 

mistakes in its own judgments and records, nunc pro tunc, and that such 

corrections generally relate back and take effect as of the date of the judgment, 

decree, order, writ, or other record, is well settled.” (quoting R. R. Ricou & Sons 

Co. v. Merwin, 113 So. 745, 746 (1927))). In 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, 2003.4

 See Colon, 909 

So. 2d at 487. In other words, because the correction to the sentence was imposed 

nunc pro tunc, under Florida law the 2014 amended sentence related back to the 

date of the initial judgment and was not a “new judgment” for purposes of § 2244. 

See Colon, 909 So. 2d at 487; see also Patterson, 849 F.3d at 1327 (noting that 

Florida Rule 3.800(a) encompasses some errors that may relate back to the original 

4

 We note Florida law also provides that “when the court wholly omits an order or 

wishes to change it, the new order cannot be entered nunc pro tunc.” Riha’s Estate, 369 So. 2d 

at 404. However, Osbourne did not challenge the imposition of the amended sentence nunc pro 

tunc in state court, despite having the opportunity to do so. Further, he does not raise any 

challenge to the nunc pro tunc designation now. Under these circumstances and because the 

propriety of labeling a Florida judgment “nunc pro tunc” is a matter of state law, we do not opine 

as to whether the imposition of the amended sentence in his case was the proper or correct use of 

a nunc pro tunc designation under Florida law. That is a matter best left to the province of the 

state court. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“Because ‘it would be 

unseemly in our dual system of government for a federal . . . court to upset a state court 

conviction without an opportunity to the state courts to correct [an alleged] violation,’ federal 

courts apply the doctrine of comity, which ‘teaches that one court should defer action on causes 

properly within its jurisdiction until the courts of another sovereignty with concurrent powers, 

and already cognizant of the litigation, have had an opportunity to pass upon the matter.’” 

(quoting Darr v. Burford, 339 U.S. 200, 204 (1950))). Our decision here is limited to the effect 

of the nunc pro tunc designation under Florida law and what effect that designation has on 

whether the judgment is a new judgment for purposes of § 2244(b). 

Case: 18-11004 Date Filed: 08/07/2020 Page: 11 of 12
12

sentencing, and “[a]n 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”). 

In conclusion, unlike in Magwood and Insignares, there is no intervening 

new judgment here authorizing Osbourne’s confinement. Rather, Osbourne is still 

confined pursuant to the 2003 judgment. Consequently, Osbourne’s latest § 2254 

was an unauthorized second or successive petition over which the district court 

lacked jurisdiction.5

 See Farris, 333 F.3d at 1216.

AFFIRMED.

5 In support of his contention that the 2014 amended sentence constitutes a new judgment 

for purposes of § 2244, Osbourne primarily relies on Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 

2012), and Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017), but his case is factually 

distinguishable as the intervening judgments in those cases were not entered nunc pro tunc. See 

Wentzell, 674 F.3d at 1125; Gonzalez, 873 F.3d at 772–73. Regardless, those cases are not 

binding precedent in this Circuit. See Generali v. D’Amico, 766 F.2d 485, 489 (11th Cir. 1985) 

(“[A]uthority from one circuit of the United States Court of Appeals is not binding upon another 

circuit.”). 

Case: 18-11004 Date Filed: 08/07/2020 Page: 12 of 12