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Case No. 4:11cv10-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ACE PATTERSON,

Petitioner,

v. CASE NO. 4:11cv10-RH/CAS

SECRETARY KENNETH S. TUCKER,

Respondent.

_________________________________/

ORDER DENYING THE PETITION AND

GRANTING A CERTIFICATE OF APPEALABILITY

This petition for a writ of habeas corpus under 28 U.S.C. § 2254 is before 

the court on the magistrate judge’s report and recommendation, ECF No. 15, and 

the objections, ECF No. 19. I have reviewed de novo the issues raised by the 

objections. The report and recommendation correctly concludes that the petition 

should be dismissed as an unauthorized second or successive petition. The report 

and recommendation is adopted as the court’s opinion on this issue. I also 

conclude, however, that a certificate of appealability should be granted on this 

issue.

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Case No. 4:11cv10-RH/CAS

Rule 11 of the Rules Governing § 2254 Cases requires a district court to 

“issue or deny a certificate of appealability when it enters a final order adverse to 

the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may 

issue “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); 

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 

893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting 

out the standards applicable to a § 2254 petition on the merits). As the Court said 

in Slack:

 To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues 

presented were “ ‘adequate to deserve encouragement to proceed 

further.’ ” 

Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Id. at 484. 

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Case No. 4:11cv10-RH/CAS

The petitioner has made the required showing. A petition challenging a new 

judgment is not “second or successive” even if the new judgment carries forward 

the substance of a decision that was part of an original judgment that was attacked 

through an earlier petition. See Magwood v. Patterson, 130 S. Ct. 2788 (2010); 

Campbell v. Sec’y, Dep’t of Corr., 447 F. App’x 25 (11th Cir. 2011) (unpublished); 

cf. Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1292-93 (11th Cir. 2007). 

The law of the circuit is unsettled on whether the state court’s order deleting a term 

of the original sentence—the term requiring administration of 

medroxyprogesterone acetate—constituted a new judgment, so that the current 

petition was not second or successive. See also Wentzell v. Neven, No. 10-16605, 

2012 WL 1071638 (9th Cir. April 2, 2012); Johnson v. United States, 623 F.3d 41 

(2d Cir. 2010); Martin v. Bartow, 628 F.3d 871 (7th Cir. 2010).

For these reasons,

IT IS ORDERED: 

1. The report and recommendation is ACCEPTED.

2. The clerk must enter judgment stating, “The petition is DENIED with 

prejudice.” 

3. A certificate of appealability is GRANTED on this issue: whether the 

state-court order deleting from the petitioner’s sentence the term requiring 

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Case No. 4:11cv10-RH/CAS

administration of medroxyprogesterone acetate constitutes a new judgment, so that 

the current petition is not second or successive.

4. The clerk must close the file.

SO ORDERED on April 18, 2012.

s/Robert L. Hinkle

United States District Judge

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