[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-13969

Non-Argument Calendar

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D.C. Docket No. 9:15-cv-80958-KAM

FELIX A. SMITH, 

 Petitioner-Appellant,

 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Respondents-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(May 8, 2017)

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Before JULIE CARNES, JILL PRYOR, and EDMONDSON, Circuit Judges.

PER CURIAM: 

Felix Smith, a Florida state prisoner proceeding pro se, appeals the district 

court’s dismissal of his 28 U.S.C. § 2254 petition: a dismissal as second or 

successive. Considering the vacation of original sentence (in part) and the 

resentencing in 2013, reversible error has been shown; we vacate the judgment and 

remand for further proceedings.

In 1995, Smith was convicted in Florida of robbery with a firearm. Smith 

was sentenced to 30 years’ imprisonment, to be followed by 10 years’ Drug 

Offender Probation. On direct appeal, the state court affirmed Smith’s conviction 

and sentence.

Smith filed his first 28 U.S.C. § 2254 petition in 2000. The district court 

dismissed Smith’s petition as untimely. On appeal, this Court affirmed.

The state court later granted in part Smith’s motion -- pursuant to Fla. R. 

Crim. P. 3.800 -- to vacate and set aside an illegal sentence. The state court 

concluded (and the State conceded) that the imposition of a Drug Offender 

Probation was unlawful, because Smith had been charged with no drug-related 

offense. Accordingly, the state court resentenced Smith in November 2013. The 

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“resentencing” order (1) converted Smith’s “drug offender probation” to a 

“standard probation with the condition of at least (5) NA/AA meetings per week 

and random urine testing” and (2) struck the Drug Farm Program as a condition of 

Smith’s probation. 

In July 2015, Smith filed the pro se section 2254 petition at issue in this 

appeal. In his petition, Smith raised four grounds for relief, each of which 

challenged an aspect of Smith’s original criminal proceeding and sentence. 

The district court dismissed Smith’s 2015 petition as second or successive. 

The district court explained that Smith’s 2013 resentencing did not relieve Smith 

of his obligation to first obtain authorization from this Court to file a second or 

successive habeas petition. In particular, the district court noted that “all of the 

grounds raised in the present petition relate to errors in the original trial 

proceedings” that “could have and should have been asserted timely in his initial 

petition.” 

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).

Section 2254 permits a prisoner “in custody pursuant to the judgment of a 

State court” to challenge his conviction and sentence “on the ground that he is in 

custody in violation of the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2254(a). Before filing a second or successive habeas corpus petition 

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in the district court, a state prisoner must first move the court of appeals for an 

order authorizing the district court to consider such a petition. See 28 U.S.C. 

§ 2244(b)(3)(A). Where the prisoner fails to seek or to obtain such authorization, 

the district court lacks jurisdiction to consider the merits of the petition. Burton v. 

Stewart, 127 S. Ct. 793, 799 (2007). 

The phrase “second or successive,” however, does not simply refer to all 

habeas petitions filed second or successively in time. Magwood v. Patterson, 130 

S. Ct. 2788, 2796 (2010). Instead, “the phrase ‘second or successive’ must be 

interpreted with respect to the judgment challenged.” Id. at 2797. Thus, where an 

intervening judgment comes in between the filing of two habeas petitions, the 

“application challenging the resulting new judgment is not ‘second or successive’ 

at all.” Id. at 2802. “[T]he existence of a new judgment is dispositive.” Id. at 

2800. 

We have said a judgment is “comprised of both the sentence and the 

conviction.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th 

Cir. 2014). A resentencing, therefore, results in a new judgment of conviction for 

purposes of AEDPA. Id. “[W]hen a habeas petition is the first to challenge a new 

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

challenge the sentence or the underlying conviction.” Id. 

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Here, Smith’s 2013 resentencing -- changing the terms of probation: his 

custody -- established a new intervening judgment. Because Smith’s 2015 section 

2254 petition is the first petition to challenge this new judgment, Smith’s petition 

is not “second or successive.” See id. That the grounds raised in Smith’s petition 

relate only to alleged errors in Smith’s original criminal proceeding is immaterial 

to a determination of whether the petition is second or successive.*

 See id. 

(petitioner’s second-filed section 2254 petition was not “second or successive” 

even though the claims raised were identical to those raised in petitioner’s firstfiled section 2254 petition and were based only on errors alleged to have occurred 

during petitioner’s criminal trial).

The State agrees that the district court erred in dismissing Smith’s section 

2254 petition as second or successive. The States contends, however, that --

because Smith’s petition was untimely filed -- the district court’s dismissal may be 

affirmed on other grounds. The district court made no findings about timeliness. 

Moreover, the record before the district court was insufficiently developed to 

determine the timeliness of Smith’s petition. For these reasons, we decline to rule 

on the timeliness issue. Instead, we remand the case to the district court for further 

 * At this stage in the proceedings, we make no determination about whether the claims raised in 

Smith’s section 2254 petition may be subject to dismissal on other grounds. Cf. Magwood, 130 

S. Ct. at 2802 (“procedural-default rules continue to constrain review of claims in all 

applications, whether the applications are ‘second or successive’ or not.”); Insignares, 755 F.3d 

at 1281 n.9 (although a habeas petition is not “second or successive,” the claims raised in the 

petition are still subject to other limitations under AEDPA, including procedural default rules 

and the law-of-the-case doctrine). 

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proceedings, including a determination about the timeliness of Smith’s petition. 

Cf. Boyd v. United States, 754 F.3d 1298, 1303 (11th Cir. 2014) (reversing district 

court’s dismissal of 28 U.S.C. § 2255 motion as second or successive and 

remanding the case for a determination about the motion’s timeliness). 

VACATED AND REMANDED.

 

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