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 IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ACE PATTERSON,

Petitioner,

vs. Case No. 4:11cv10-RH/WCS

SECRETARY KENNETH S. TUCKER,1

Respondent.

 /

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

This cause is before the court for ruling on Petitioner's amended petition for writ

of habeas corpus filed pursuant to 28 U.S.C. § 2254, with supporting memoranda and

1

 Kenneth S. Tucker is the current Secretary of the Florida Department of

Corrections, and is automatically substituted as Respondent. Fed.R.Civ.P. 25(d). 

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exhibits. Doc. 7 in ECF (Electronic Case Filing).2 Doc. 13. Respondent filed a motion

to dismiss with exhibits. Unless otherwise noted, references to exhibits are to those

filed electronically as docs. 13-1, 13-2, and 13-3. Petitioner filed a reply. Doc. 14. 

Respondent seeks dismissal of the petition with prejudice as untimely filed. Doc.

13, p. 9. There is a one year limitations period for filing a § 2254 petition. 28 U.S.C. §

2244(d)(1). The period generally runs from "the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking such

review." § 2244(d)(1)(A). Later dates which may commence the period are the date on

which an unconstitutional impediment which prevented the applicant from filing is

removed; the date on which the right asserted was recognized by the Supreme Court

and made retroactive on collateral review; and the date on which the factual predicate

could have been discovered with due diligence. § 2244(d)(1)(B)-(D). The period is

tolled for the time during which a "properly filed" application for relief is pending in state

court. § 2244(d)(2).3

2

 The petition, two memoranda, and exhibits were scanned and filed by the clerk

as a single document. Hereafter, references to doc. 7 will be to the page numbers of

the document as scanned and filed in ECF. The petition is at pp. 1-45, the supporting

memorandum is at pp. 46-50, the memorandum regarding the period of limitations is at

pp. 51-53, and the exhibits are at pp. 54-78.

3

 The time may be equitably tolled only in rare cases, and "only if a petitioner

establishes both extraordinary circumstances and due diligence." Diaz v. Secretary for

Dept. of Corrections, 362 F.3d 698, 702 (11th Cir. 2004) (citation omitted, emphasis in

original). 

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Petitioner previously filed a § 2254 petition in this court, case number 4:06cv138-

WS/WCS, challenging his state conviction and sentence imposed on July 14, 1998.4 A

motion to dismiss the petition was granted and the petition was dismissed as untimely. 

Docs. 18, 29, and 30 in that case (report and recommendation, order adopting it, and

judgment entered on the docket on May 31, 2007).5

 A certificate of appealability and

request to appeal in forma pauperis were denied by this court, and by the Eleventh

Circuit. Docs. 34, 40, and 41 in that case. 

Petitioner claims that this petition is not untimely because he was resentenced. 

He identifies the date of conviction and sentence as May 13, 1998, and July 14, 1998,

and identifies the date of resentencing as December 14, 2009. Doc. 7, p. 1. The

verdict was returned on May 13, 1998, and Petitioner was originally sentenced on July

14, 1998. Exs. B and C. In Petitioner's memorandum regarding the limitations period

4

 The documents are available in ECF, so the court references the document

numbers in that case. Respondent has also supplied copies of the relevant documents

as Exs. F-I. 

5

 The timeliness calculation in the earlier case was as follows:

The judgment was affirmed on June 28, 1999. Petitioner did not seek

rehearing or file a petition for writ of certiorari. His conviction therefore

became final on or about Monday September 27, 1999, when the 90 days

for seeking certiorari expired. 

Unless a later commencement date applies or the period was tolled,

Petitioner's time for filing a § 2254 petition expired on September 27,

2000. Absent other tolling before that date, by the time the petition for writ

of habeas corpus was filed in state court on November 1, 2000, there was

no time left to toll. 

Doc. 18 in case number 4:06cv138-WS/WCS, pp. 2-3 (citations and record references

omitted). 

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(attached to the amended petition), he asserts that he was resentenced on December

14, 2009, when his Fla.R.Crim.P. 3.800(a) motion was granted. He claims the finality of

that latter judgment is the operative date for calculating the one year period. Doc. 7, p.

52, citing, Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286 (11th Cir. 2007),

cert. denied, 555 U.S. 1149 (2009) (commencing the one year period from the date of

resentencing, where state prisoner was resentenced as a result of a successful

Fla.R.Crim.P. 3.850 motion). As explained in Ferreira, "[w]hat this Court has previously

called the judgment of conviction and the sentencing judgment together form the

judgment that imprisons the petitioner," and the one year "begins to run from the date

both the conviction and the sentence the petitioner is serving at the time he files his

application become final because judgment is based on both the conviction and the

sentence." Id., at 1293, following Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 166

L.Ed.2d 628 (2007) (other citations omitted).6

Respondent claims that the current petition is untimely under the same rationale

relied upon in dismissed the previous petition, that there was no resentencing to

6

 In Burton, a § 2254 petition had been filed challenging the petitioner's 1994

conviction. Later, after exhausting remedies following resentencing, the petitioner filed

a petition challenging his 1998 resentencing. Burton, 127 S.Ct. at 795-796. The Court

found this was an unauthorized second or successive petition over which the district

court lacked jurisdiction. The time limit was discussed in rejecting Petitioner Burton's

argument that, had he not filed his § 2254 petition until remedies were exhausted

regarding the resentencing, his challenges to the underlying conviction would have been

time barred. 127 S.Ct. at 798. The Court said the sentence is the judgment, and

"Burton's limitations period did not begin until both his conviction and sentence 'became

final by the conclusion of direct review or the expiration of the time for seeking such

review' – which occurred well after Burton filed his [initial] petition." Id., at 798-799. 

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commence anew the one year period, and that the prior ruling as to timeliness is the law

of the case. Doc. 13, pp. 4-9. 

More critical than timeliness, however, is whether this is a second or successive

§ 2254 motion. Assuming Petitioner challenges his confinement pursuant to the same

state court judgment as challenged in his first petition, this court lacks jurisdiction to

consider it unless and until authorization for filing is granted by the court of appeals. 

See, e.g., Burton, 549 U.S. at 157, 127 S.Ct. at 799 (as petitioner had neither sought

nor received authorization to file a second or successive petition, the district court lacked

jurisdiction). The dismissal of the prior § 2254 petition as time barred "constitutes an

adjudication on the merits that renders future petitions under § 2254 challenging the

same conviction 'second or successive' petitions under [28 U.S.C.] § 2244(b)." Murray

v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (citations omitted).7 See also McNabb v.

Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009) (holding that dismissal as untimely

constitutes a disposition on the merits and renders a later petition second or

successive) (citing Murray) (footnote omitted);8

 Altman v. Benik, 337 F.3d 764, 766 (7th

7

 Although the Supreme Court did not address this issue, Murray was cited

favorably in Gonzalez v. Crosby, 545 U.S. 524, 533 n. 6, 125 S.Ct. 2641, 2645, n. 6,

162 L.Ed.2d 480 (2005), rejecting the argument that the fact that dismissal of an

unexhausted petition does not render subsequent petition successive: "If this argument

is correct, petitioner would be able to file not just a Rule 60(b) motion, but a full-blown

habeas petition, without running afoul of § 2244(b). But see, e.g., Murray v. Greiner."

(full citation omitted). The Court did not need to decide the question, however, because

it concluded the Rule 60(b) motion, which did not raise any claim for relief from the

conviction or sentence, should not be treated as a second or successive petition. Id.

8

 The court noted that a Fed.R.Civ.P. 60(b) motion challenging a prior dismissal

on the basis of untimeliness would not necessarily be a second or successive motion.

Id., at 1030, n. 1 (citing Gonzalez, supra n. 4) (other citation omitted). 

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Cir. 2003) (prior untimely petition "counts" to render subsequent petition successive: "a

statute of limitations bar is not a curable technical or procedural deficiency but rather

operates as an irremediable defect barring consideration of the petitioner's substantive

claims."). Cf. Jordan v. Sec'y Dep't of Corr., 485 F.3d 1351, 1353 (11th Cir.), cert.

denied, U.S. , 128 S.Ct. 450, 169 L.Ed.2d 315 (2007) (not discussing the issue but

noting that the first petition was denied with prejudice as untimely, and authorization for

filing the second or successive petition had been granted).9

 

The critical question remains whether Petitioner Patterson is now in custody

pursuant to a new sentence imposed in 2009. If so, he would not be in custody under

the same judgment challenged in the § 2254 petition filed in 2006, and he has not

previously challenged his custody under a 2009 judgment. See Magwood v. Patterson,

--- U.S. ----, 130 S.Ct. 2788, 2796, 177 L.Ed.2d 592 (2010) (agreeing that § 2244(b)

applies only to a second or successive application challenging the same state court

judgment, so a first application challenging a new judgment following resentencing

"cannot be 'second or successive' such that § 2244(b) would apply."). "[B]oth §

2254(b)'s text and the relief it provides indicate that the phrase 'second or successive'

must be interpreted with respect to the judgment challenged." Id., at 2797. 

9 Compare, Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480

(2005) (a Fed.R.Civ.P. 60(b) motion, challenging dismissal of prior § 2254 petition only

on the basis of the court's timeliness analysis and raising no claims for relief on the

merits, was not the equivalent of a second or successive petition; still affirming the

denial of relief as extraordinary circumstances justifying Rule 60(b) relief had not been

shown). 

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Petitioner's "Uniform Commitment to Custody of Department of Corrections," with

attached judgment, is Ex. D (doc. 13-1, pp. 26-42). See Fla.R.Crim.P. 3.810 (the

judgment and sentence shall be attached to the commitment, and the sheriff shall

transfer the defendant with the commitment and certified copies to the official whose

duty it is to execute the sentence). Petitioner was sentenced to terms of 311 months on

counts one and two, and terms of life on counts three and four. As to counts three and

four, Petitioner was determined to be a sexual predator, and there is a check mark on

the form next to "Chemical Castration pursuant to F.S. 794.0325 [sic] M.P.A." Doc. 13-

1, pp. 37 and 40).10

Petitioner filed a motion to correct illegal sentence pursuant to Fla.R.Crim.P.

3.800(a) on August 12, 2008. Ex. L (doc. 13-3, pp. 50-53). He noted he was sentenced

to concurrent terms of 311 months on counts one and two, and consecutive life terms

on counts three and four. He did not challenge the sentences, but challenged the

sentencing court's order, under Fla. Stat. § 794.0235. That statute authorizes

administration of medroxyprogesterone acetate (MPA) chemical castration under the

discretion of the prison commencing "not later than one week prior to the defendant's

release from prison" and shall continue for a duration of years as specified by the

sentencing court or for life. Ex. L, p. 3; Fla. Stat. § 794.0235(2)(a). Petitioner argued

that the court had not complied with the requirements of § 794.0235 in ordering

10 The citation was incorrect, the statute is (and was in 1998) § 794.0235; there is

no § 794.0325. 

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administration of MPA. Id., pp. 3-4. For relief, he asked the court "to remove the order

of MPA from his judgment and sentence." Id., p. 4. 

The State conceded that the 3.800 motion was facially sufficient, and an

evidentiary hearing was scheduled. Exs. N and O. A hearing was not held because the

State stipulated to the facial sufficiency of the motion "and stipulates to the Defendant's

motion in light of the Defendant's consecutive Life sentences in the above styled

matter." Ex. P, p. 2. The Guardian Ad Litem agreed to the stipulation "as it is a moot

issue in light of the Defendant's consecutive Life sentences," and did not want to subject

the victim to painful recollections "by having a contested hearing on an issue that is a

'moot point.' " Id. 

The court ordered:

[T]he Defendant's Motion to Correct an Illegal Sentence is GRANTED and

the Defendant shall not have to undergo [the MPA injection], also known

as "Chemical Castration" as previously ordered by the Court at his

sentencing in the above styled matter. 

Id., p. 3 (doc. 13-3, p. 67 in ECF). The order was signed on December 14, 2009. Id. 

Consequently, Petitioner is not in custody pursuant to this order, which simply

removed the MPA treatment condition from his original sentence. The MPA condition

did not affect his term of imprisonment one way or another, as MPA "may not be

imposed in lieu of, or reduce, any other penalty prescribed under s. 794.011." §

794.0235(1). There was no hearing on the MPA issue as it was considered moot in

light of the consecutive life sentences, which were not challenged or invalidated. Cf,

Murphy v. United States, 634 F.3d 1303, 1314 (11th Cir. 2011) (because Fed.R.Crim.P.

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35(b) reduction does not affect finality of judgment, and it "does not constitute a

resentencing where an old sentence is invalidated and replaced with a new one,"

reduction did not alter the date of finality and § 2255 motion was untimely). 

The order of December 14, 2009, did not invalidate the original prison sentences

on the four counts, or even reiterate the sentences. It merely invalidated a condition

which had no impact on the prison sentence to be served. It can, therefore, only be

pursuant to the original sentence and judgment that Petitioner remains in custody of his

multiple terms of 311 months and life. He has already challenged his custody pursuant

to the original sentence, and this is an unauthorized second or successive § 2254

petition over which the court lacks jurisdiction. Respondent's motion should be granted,

though not for the reasons argued (that the petition is untimely), and the petition should

be dismissed. 

Certificate of Appealability

Section 2254 Rule 11(a) provides that "[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant," and if a

certificate is issued "the court must state the specific issue or issues that satisfy the

showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. § 2254 Rule 11(b).

I find no substantial showing of the denial of a constitutional right. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542

(2000) (explaining how to satisfy this showing) (citation omitted). Therefore, I

recommend that the court deny a certificate of appealability in its final order.

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The second sentence of Rule 11(a) provides: "Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue." The parties shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Conclusion

It is therefore respectfully RECOMMENDED that Respondent's motion to dismiss

(doc. 13) be GRANTED, and the court DISMISS Petitioner's § 2254 petition challenging

the 1998 judgment of the Third Judicial Circuit, Madison County, as an unauthorized

second or successive petition. It is further RECOMMENDED that a certificate of

appealability be DENIED pursuant to § 2254 Rule 11(a), and that leave to appeal in

forma pauperis be DENIED as an appeal would not be taken in good faith.

IN CHAMBERS at Tallahassee, Florida, on March 20, 2012.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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