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



                                                                     [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 6, 2020)

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

PER CURIAM:
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      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




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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).
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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


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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.
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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.


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

another § 2254 petition raising a fair-warning claim and an ineffective-assistance-

of-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.


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        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


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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


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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.


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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).
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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.”).
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