           Case: 12-12653   Date Filed: 03/03/2017   Page: 1 of 27


                                                                     [PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12653
                       ________________________

                 D.C. Docket No. 4:11-cv-00010-RH-CAS



ACE PATTERSON,

                                                          Petitioner-Appellant,
                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                        Respondent-Appellee.



                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                       _______________________

                             (March 3, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:
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       This appeal requires us to decide whether a consent order that a state

prisoner not undergo chemical castration allows him to attack his eighteen-year-old

convictions a second time, notwithstanding the statutory bar of successive

petitions, 28 U.S.C. § 2244(b)(1). In 1998, a Florida jury convicted Ace Patterson

of burglary, aggravated kidnapping of a child, and two counts of capital sexual

battery. The trial court sentenced him to life imprisonment and chemical castration.

Patterson then filed several unsuccessful collateral attacks in state court and a

petition for a writ of habeas corpus that the district court dismissed as untimely. In

2009, Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P. 3.800,

on the ground that the trial court failed to comply with the statutory prerequisites

for chemical castration. After the state and the victim’s guardian ad litem

consented to Patterson’s motion, a Florida court granted it and ordered that he not

undergo chemical castration. But the Florida court did not enter a new judgment or

order commanding the Secretary of the Department of Corrections to imprison

him. Patterson then filed another federal petition that attacked his convictions. The

district court dismissed that petition as “second or successive.” § 2244(b)(1).

Patterson argues that the order that he not undergo chemical castration constitutes a

new “judgment,” 28 U.S.C. § 2254(b)(1), that makes his latest petition not second

or successive under Magwood v. Patterson, 561 U.S. 320 (2010). But because

Patterson is not “in custody pursuant to,” § 2254(b)(1), the consent order that he



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not undergo chemical castration, that order does not trigger a new round of federal

collateral review. See Magwood, 561 U.S. at 332–33. We affirm the dismissal of

Patterson’s petition as second or successive.

                                I. BACKGROUND

      Ace Patterson is a prisoner in the custody of the Secretary of the Florida

Department of Corrections. In 1997, he visited his cousin and his cousin’s fiancée

at their home in Madison County, Florida. There, the couple introduced Patterson

to their eight-year-old daughter before she went to bed. Patterson ate dinner and

spent time with the couple and then left for the night. But he later returned

uninvited.

      In the middle of the night, Patterson broke into his cousin’s home and lifted

his cousin’s sleeping eight-year-old daughter out of her bed. He carried her

outside, brought her to the woods, and raped her. When she tried to scream,

Patterson gagged her by sticking his fingers down her throat. When she tried to

escape, Patterson grabbed her leg, dragged her back into the dirt, and raped her

again. After the assault, the girl found her way back home. Her parents awoke to

the sound of their eight-year-old daughter knocking on the front door—crying,

covered in dirt, missing a clump of hair, and covered in scratches and bruises. The

medical examiners later discovered dirt in her vagina and severe vaginal

lacerations.



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      In 1998, a jury convicted Patterson of burglary, aggravated kidnapping of a

child, and two counts of capital sexual battery. The Florida trial court sentenced

him to 311 months of imprisonment for the burglary and kidnapping convictions

and to consecutive sentences of life imprisonment and chemical castration for the

sexual battery convictions. The sentencing form “committed [Patterson] to the

custody of the Department of Corrections” and directed the Department to “keep

and safely imprison” Patterson for the remainder of his life. A state appellate court

later affirmed his convictions and sentences. Patterson v. State, 736 So. 2d 1185

(Fla. Dist. Ct. App. 1999).

      Patterson then initiated a flurry of collateral attacks against his convictions,

including four petitions for writs of habeas corpus in state court and an ethics

complaint against the prosecutor who tried his case. His efforts failed, and a

Florida appellate court warned him that “the filing of any further successive and/or

frivolous petitions or appeals may result in the imposition of sanctions.” Patterson

v. State, 788 So. 2d 397 (Fla. Dist. Ct. App. 2001).

      In 2006, Patterson filed his first federal petition for a writ of habeas corpus.

He alleged that his convictions were secured in violation of the Due Process Clause

of the Fourteenth Amendment, the Self-Incrimination Clause of the Fifth

Amendment, and the right to effective assistance of counsel under the Sixth

Amendment. The district court dismissed his petition as untimely. Ordinarily, that



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decision would have brought closure to the victim of his crimes, who was by then

eighteen years old.

      Patterson then pursued a different line of attack. Instead of challenging his

convictions, he challenged the portion of his sentence that required chemical

castration. Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P.

3.800, on the ground that the trial court did not comply with the statutory

prerequisites for chemical castration. The State of Florida and the guardian ad

litem for the victim assented to Patterson’s motion. With Patterson imprisoned for

life, the prosecutor and guardian ad litem viewed chemical castration as a “moot

point” and believed that contesting his motion was not worth “expos[ing] the

victim to the painful remembrance of the Defendant’s actions against her.”

      In 2009, the Florida trial court granted Patterson’s motion in an order that

stated, “[T]he Defendant shall not have to undergo [chemical castration] as

previously ordered by the Court at his sentencing in the above styled matter.” The

2009 order did not vacate Patterson’s sentence and replace it with a new one. Nor

did it direct the Department of Corrections to hold Patterson or perform any

affirmative act.

      After his success in state court, Patterson resumed his attack on his 1998

convictions in federal court. In 2011, he filed a second petition for a writ of habeas

corpus, which again alleged that his convictions were secured in violation of the



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Fifth, Sixth, and Fourteenth Amendments. A magistrate judge recommended

dismissing Patterson’s petition as second or successive because Patterson was “not

in custody pursuant to” the 2009 order. The district court adopted that

recommendation and dismissed Patterson’s petition as second or successive.

      A divided panel of this Court reversed. Patterson v. Sec’y, Fla. Dep’t of

Corr., 812 F.3d 885 (11th Cir. 2016), reh’g en banc granted, opinion vacated, 836

F.3d 1358 (11th Cir. 2016). The panel concluded that Patterson’s petition was not

second or successive because Patterson was in custody pursuant to a new

judgment—the order that he not undergo chemical castration. We vacated the

panel opinion and ordered rehearing en banc. We appointed Professor Erica

Hashimoto to represent Patterson throughout this appeal. We thank Professor

Hashimoto for her excellent brief and oral argument in keeping with the highest

tradition of the legal profession.

                           II. STANDARD OF REVIEW

      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).


                                     III. DISCUSSION

      After a state prisoner has had a trial, a direct appeal, and an opportunity for

collateral review in the state courts, he typically gets one, and only one, chance to

collaterally attack his conviction in federal court. With exceptions not relevant


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here, section 2244(b) prohibits a state prisoner from filing a “second or successive”

habeas petition. 28 U.S.C. § 2244(b). This prohibition “is grounded in respect for

the finality of criminal judgments.” Calderon v. Thompson, 523 U.S. 538, 558

(1998). Finality, in turn, is essential to achieving the goals of our criminal justice

system: “Deterrence depends upon the expectation that ‘one violating the law will

swiftly and certainly become subject to punishment, just punishment.’

Rehabilitation demands that the convicted defendant realize that ‘he is justly

subject to sanction, that he stands in need of rehabilitation.’” Engle v. Isaac, 456

U.S. 107, 127 n.32 (1982) (quoting Paul M. Bator, Finality in Criminal Law and

Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963);

Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. Chi. L. Rev. 142, 146 (1970)). Finality also “benefits the victim

by helping [her] put the trauma of the crime and prosecution behind [her].”

Presnell v. Kemp, 835 F.2d 1567, 1573 (11th Cir. 1988).

      Whether a petition is second or successive depends on “the judgment

challenged.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278 (11th

Cir. 2014). The judgment that matters for purposes of section 2244 is “the

judgment authorizing the prisoner’s confinement.” Magwood , 561 U.S. at 332

(emphasis omitted) (quoting Wilkinson v. Dotson, 544 U.S. 74, 83 (2005)). This

conclusion follows from the text of the statute. Section 2244(b) refers to second or



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successive petitions “under section 2254.” 28 U.S.C. § 2244(b). And section 2254

governs petitions that challenge “the judgment of a State court” “pursuant to”

which the prisoner is “in custody.” Id. § 2254. Accordingly, the bar on second or

successive petitions ordinarily prevents a prisoner from twice contesting the

judgment authorizing his confinement. See Burton v. Stewart, 549 U.S. 147, 153

(2007).

      A petition is not second or successive if it challenges a “new judgment”

issued after the prisoner filed his first petition, Magwood, 561 U.S. at 324, but the

new judgment must be a “judgment authorizing the prisoner’s confinement.” Id. at

332 (emphasis omitted) (quoting Dotson, 544 U.S. at 83). For example, in

Magwood, the district court granted a prisoner’s first habeas petition and vacated

his sentence. Id. at 326. The state court then conducted a new sentencing hearing

and entered a new judgment and sentence of imprisonment. Id. When the prisoner

filed a second habeas petition, the Supreme Court held that it was not second or

successive because the petition was the prisoner’s first challenge to the new prison

sentence. Id. at 339. Although the prisoner’s second petition restated the same

errors as his first petition, the errors he alleged were new because at the

resentencing hearing, the state court heard and rejected the prisoner’s arguments a

second time. Id. And “[a]n error made a second time is still a new error.” Id.




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      The district court correctly concluded that the only judgment that authorizes

Patterson’s confinement is the sentence entered in 1998. That judgment

“committed [Patterson] to the custody of the Department of Corrections,” and that

commitment has never been vacated or replaced. Patterson challenged that

judgment in his 2006 petition for a writ of habeas corpus.

      When his first federal petition was dismissed as untimely, Patterson lost his

one chance to obtain federal habeas review of his 1998 judgment. See Jordan v.

Sec’y, Dep’t of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007). Because Patterson’s

2011 petition challenges the 1998 judgment a second time, the district court

correctly dismissed it as second or successive. The 2009 order that granted

Patterson’s uncontested motion to correct his sentence does not trigger a new

round of federal review.

      Our precedent in Insignares does not support Patterson’s argument.

Although Patterson and Insignares both filed successful motions to correct an

illegal sentence under Florida Rule of Criminal Procedure 3.800(a), the Florida

trial court in Insignares went a step further: it also changed Insignares’s term of

imprisonment and “entered [a] corrected sentence and new judgment.” 755 F.3d at

1277. This corrected sentence “committed [Insignares] to the custody of the

Department of Corrections.” Here, the Florida trial court never issued a new prison

sentence—in writing or otherwise—to replace Patterson’s 1998 sentence. The



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2009 order bars the imposition of chemical castration, but it does not otherwise

address the term of Patterson’s imprisonment. In short, Insignares had an

intervening “judgment authorizing [his] confinement,” but Patterson does not. Id.

at 1279 (emphasis omitted) (quoting Magwood, 561 U.S. at 332).

      Patterson and the dissent contend that the 1998 sentencing form and the

order that Patterson not undergo chemical castration must be read together to

describe his conviction and current sentence accurately, see Dissenting Op. at 23–

24, but the text of the governing statute makes clear that the only judgment that

counts for purposes of section 2244 is the judgment “pursuant to” which the

prisoner is “in custody.” 28 U.S.C. § 2254; see Magwood, 561 U.S. at 332–33;

Burton, 549 U.S. at 156. And Patterson is not in custody pursuant to the 2009 order

because it does not authorize anything. Magwood, 561 U.S. at 332. Instead, it

states only in the negative that Patterson “shall not have to undergo [chemical

castration].” That the Florida Department of Corrections must read both forms

together to determine the scope of Patterson’s confinement does not transform the

2009 order into a judgment that authorizes Patterson’s custody. The 1998 judgment

is the only judgment that allows the Department to imprison Patterson. The 2009

order imposes no sentence and gives the Department no authority.

      Patterson also argues that any order that alters a sentence necessarily

constitutes a new judgment, but this argument is difficult to square with our



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precedent that suggests that not all changes to a sentence create a new judgment.

We have held that when a court corrects a clerical mistake, no new judgment arises

for purposes of Federal Rule of Appellate Procedure 4(B)(1)(A). See United States

v. Portillo, 363 F.3d 1161, 1165–66 (11th Cir. 2004). Although we have not

applied this precedent in the context of second petitions, we reject the notion that

the Antiterrorism and Effective Death Penalty Act, the “central purpose” of which

“was to ensure greater finality of state and federal court judgments in criminal

cases,” Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004)

(en banc), is more accommodating of untimely and successive petitions than Rule

4(b)(1)(A) is of untimely direct appeals. And, contrary to the dissent’s assertion,

Dissenting Op. at 25, because an order that corrects a clerical error likely would

not create new judgment, a petitioner would not be entitled to a second round of

habeas review. See Magwood, 561 U.S. at 331.

      Recognizing that his suggested rule runs counter to Portillo, Patterson

attempts to limit his test to whether a prisoner’s sentence has materially changed,

but this limitation still misses the point. The relevant question is not the magnitude

of the change, but the issuance of a new judgment authorizing the prisoner’s

confinement. Id. at 332. The state court did not issue a new judgment authorizing

Patterson’s confinement when it granted Patterson’s motion to correct his sentence.




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And the 1998 judgment remains the only order that commands the Secretary to

imprison Patterson.

      Many ameliorative changes in sentences that state courts might grant as a

matter of course, such as the removal of a fine or a restitution obligation, would

trigger a new round of federal habeas review under Patterson’s proposed standard

of “material change.” At oral argument, Patterson’s counsel stated that orders that

remove restitution and fines might be “in a slightly different category” than orders

that remove chemical castration because fines and restitution are not part of a

prisoner’s custodial sentence and cannot be challenged in a habeas proceeding. See

Mamone v. United States, 559 F.3d 1209, 1211 (11th Cir. 2009). But whether a

challenge to the removed portion of the sentence was initially cognizable in a

habeas proceeding is irrelevant to whether the removal of that condition produces a

new judgment. Patterson’s focus on the magnitude and type of change to the

sentence is beside the point. The only question is whether the 2009 order

authorizes his confinement.

      The dissent argues that, in the wake of our ruling, “all Florida prisoners who

obtain a favorable Rule 3.800(a) order striking or vacating part of their initial

sentence . . . will simply have the state trial court enter a new judgment,”

Dissenting Op. at 23, but the dissent cites no authority for this proposition. And it

is unclear that Florida law would entitle every prisoner to that remedy. Rule



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3.800(a) allows a court to correct an illegal sentence “at any time” if the “records

demonstrate on their face an entitlement” to relief. This rule encompasses clerical

errors, Carson v. State, 489 So. 2d 1236, 1238 (Fla. Dist. Ct. App. 1986), which

“generally relate back” to the date of initial judgment. R. R. Ricou & Sons Co. v.

Merwin, 113 So. 745, 746 (Fla. 1927). An 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. That Rule 3.800(a)

encompasses clerical errors, which relate back, suggests that other modifications

under Rule 3.800(a) may also relate back to the original sentencing and would not

require a judge to vacate the original sentence and issue a new one. And we know,

of course, that the judge in Patterson’s case did not do so.

      As a practical matter, Patterson’s proposed resolution of this appeal might

hurt prisoners more than it helps. To be sure, if any change to a sentence triggers

another opportunity for federal review, state prisoners would potentially have

greater access to the federal writ of habeas corpus. But then state officials would be

less willing to agree to sentencing changes that benefit prisoners, and state courts

would be more hesitant to approve them. Courts have the discretion to accept a

prosecutor’s concession, in lieu of reaching the merits, in close cases and in cases

where no error occurred. See Casey v. United States, 343 U.S. 808, 808 (1952);

Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015). But Florida’s courts



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“have a constitutional and statutory duty not to accept an inappropriate concession”

when it “might be to the detriment of the victims of crime and/or to the people of

the State of Florida,” Reed v. State, 783 So. 2d 1192, 1196 n.2 (Fla. Dist. Ct. App.

2001), quashed on other grounds, 837 So. 2d 366 (Fla. 2002), a possibility that

would arise more often if a merciful concession required prosecutors to defend and

victims to endure a new round of federal habeas review.

      The dissent contends that we “seem[] to be saying” that prosecutors and

state courts would refuse to correct illegal sentences under clear state law to avoid

additional federal habeas review, see Dissenting Op. at 26, but that contention

constructs a straw man. Nothing in our analysis suggests that prosecutors and state

courts would refuse to modify an illegal sentence. Instead, our analysis recognizes

that prosecutors may sometimes consent to motions under Rule 3.800(a) even

when the prisoner’s sentence may not be illegal. Here, the record establishes that

the prosecution assented to Patterson’s motion to remove chemical castration from

his sentence because it viewed chemical castration as a “moot point” in the light of

Patterson’s life sentence and because contesting the motion was not worth

“expos[ing] the victim to the painful remembrance of [Patterson’s] actions against

her.” But we doubt that the prosecution would have so readily assented to

Patterson’s motion had it known that the resulting order would subject Patterson’s

victim to a second round of lengthy habeas review.



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      The Antiterrorism and Effective Death Penalty Act gives state prisoners only

one opportunity to challenge their sentence in federal court. Patterson wasted that

opportunity ten years ago when he filed his first petition late. Patterson would have

us hold that any order that changes a prisoner’s sentence is a new judgment that

triggers a new round of federal review. But the only judgment that matters is the

judgment that authorizes Patterson’s confinement—the very judgment that

Patterson has been attacking for eighteen years and that he wants to attack again.

The Act requires that we say “no more.” The district court correctly dismissed

Patterson’s petition as second or successive.

                               IV. CONCLUSION

      We AFFIRM the dismissal of Patterson’s petition for a writ of habeas

corpus.




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ED CARNES, Chief Judge, concurring:

      I fully concur in the well-reasoned majority opinion, and write separately

only to make clear that this Court does not reach the two questions contained in the

second issue that we asked the parties to brief. We stated those questions as

follows:

            Should Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014),
      and Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007),
      be overruled insofar as either of them [1] allows a non-detrimental
      change in a prisoner’s sentence to constitute a new judgment under
      Magwood, or [2] allows a prisoner who obtains a non-detrimental
      change in his sentence to also challenge his original, undisturbed
      conviction as though the conviction had occurred at the date of the
      change in the sentence?

      Regardless of the first question, we know from the Magwood opinion itself

that the second question was not decided in that case because the Supreme Court’s

opinion tells us it was not. The Court expressly stated: “This case gives us no

occasion to address” whether its reasoning “would allow a petitioner who obtains a

conditional writ as to his sentence to file a subsequent application challenging not

only his resulting, new sentence, but also his original, undisturbed conviction.”

Magwood v. Patterson, 561 U.S. 320, 342, 130 S. Ct. 2788, 2802 (2010). In his

second or successive application, Magwood had not attempted to challenge his

undisturbed conviction, only his new sentence. Id. The Supreme Court did note

that “[s]everal Courts of Appeals have held that a petitioner who succeeds on a


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first habeas application and is resentenced may challenge only the portion of a

judgment that arose as a result of a previous successful action.” Id. at 342 n.16,

130 S. Ct. at 2802 n.16 (quotation marks omitted) (citing decisions of the Second,

Sixth, and Seventh Circuits).

      Because Patterson’s second or successive habeas application does challenge

his conviction, this case might have presented the undisturbed conviction/new

sentence issue that Magwood reserved, allowing us to decide whether to overrule

our Insignares and Ferreira decisions. It does not, however, because there was no

new judgment in this case. As a result, that issue is one for another day.




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JORDAN, Circuit Judge, joined by WILSON, MARTIN, ROSENBAUM and
JILL PRYOR, Circuit Judges, dissenting:

      There are legitimate questions about whether Insignares v. Secretary,

Florida Department of Corrections, 755 F.3d 1273 (11th Cir. 2014), correctly

applied Magwood v. Patterson, 561 U.S. 320 (2010), as to when there is an

intervening judgment under 28 U.S.C. §§ 2244(b) & 2254(b). But if we are going

to leave Insignares undisturbed, I “do not see how [that case] and [the majority’s

decision here] can coexist.” United States v. Bryan, 339 U.S. 323, 343 (1950)

(Jackson, J., concurring). As explained in the now-vacated panel opinion:

      A “basic principle of justice [is] that like cases should be decided
      alike,” Martin v. Franklin Capital Corp., 546 U.S. 132, 139, 126 S.Ct.
      704, 163 L.Ed.2d 547 (2005), and [there is] no meaningful distinction
      between Mr. Insignares’ case and Mr. Patterson’s case. Just as
      Mr. Insignares’ initial § 2254 petition was dismissed for untimeliness,
      so too was Mr. Patterson’s initial § 2254 petition. Just as
      Mr. Insignares filed a motion with the state trial court to correct his
      illegal sentence under Rule 3.800, so too did Mr. Patterson. Just as the
      state trial court granted Mr. Insignares’ motion to correct,
      substantively amending a part of the sentence but leaving
      Mr. Insignares’ remaining convictions and total custodial sentences
      intact, so too did the state trial court here grant Mr. Patterson’s motion
      to correct, substantively vacating a portion of the sentence but leaving
      Mr. Patterson’s remaining convictions and total custodial sentences
      intact. Just as Mr. Insignares benefitted from the new sentence, so too
      did Mr. Patterson benefit from the new sentence. And just as the
      second habeas petition filed by Mr. Insignares asserted claims related
      to his underlying convictions (and not to the new sentence), so too did
      the second habeas petition filed by Mr. Patterson assert claims related
      to his underlying convictions (and not to the new sentence). As in
      Insignares, the state trial court’s grant of Mr. Patterson’s Rule 3.800
      motion and its vacatur of the punishment of chemical castration from
      the original sentence constituted a resentencing that resulted in a new

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      judgment, even though Mr. Patterson’s total custodial term (life in
      prison) remained the same, and even though the current habeas corpus
      petition challenges only the underlying convictions.

Patterson v. Sec’y, Fla. Dep’t of Corr., 812 F.3d 885, 888–89 (11th Cir. 2016)

(some language in brackets added). The majority tries valiantly to explain why

Insignares does not govern, but its reasons—to the extent one can ascertain them—

are unconvincing.

                                     *******

      The majority says that, under Magwood, the only judgment that authorizes

Mr. Patterson’s confinement is the original 1998 judgment, which has never been

vacated or replaced. See Maj. Op. at 9. That, I think, is wrong on a number of

levels.

      A criminal judgment (even under AEDPA) consists of the conviction and the

sentence. See Burton v. Stewart, 549 U.S. 147, 156–57 (2007); Ferreira v. Sec’y,

Dep’t of Corr., 494 F.3d 1286, 1292–93 (11th Cir. 2007). Not only has the

Supreme Court emphasized the critical role that the sentence plays in a judgment,

dictionaries from the time of AEDPA’s enactment confirm this understanding. See

Barron’s Law Dictionary 271 (4th Ed. 1996) (defining “judgment of conviction” as

“the sentence in a criminal case formally entered in the clerk’s records”); Black’s

Law Dictionary 842 (6th Ed. 1990) (stating that “‘sentence’ and ‘judgment’ are

synonymous in a criminal action”).



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      Chemical castration is a criminal punishment under Florida law, see Tran v.

State, 965 So. 2d 226, 229 (Fla. 4th DCA 2007) (holding that chemical castration,

which has been characterized by the Florida Legislature as a penalty, “is part of the

defendant’s punishment and sentence”), and the Rule 3.800(a) order (however one

wants to characterize it) eliminates that punishment from Mr. Patterson’s sentence.

That order constitutes part of Mr. Patterson’s sentence because it substantively

changes the way that the Department of Corrections can execute the initial

judgment. Everyone but the majority recognizes this reality.

                                      *******

      Apparently sensing that this first reason is insufficient, the majority pivots,

and says that Insignares is distinguishable because the state trial court in that case,

in addition to issuing a Rule 3.800(a) order, also entered a new judgment. See Maj.

Op. at 9–10.    This, essentially, mirrors the position that Florida took at oral

argument:

       Member of the Court: . . . I want to know why you think—and there
       are various possible answers—but I want to know why you think this
       is not a new judgment. First, you told me it didn’t change his
       confinement, and we talked about that. Now you say that Insignares
       was different and you started on confinement grounds, but now, you
       say that there was a new piece of paper called a judgment in
       Insignares, which made all the difference in the world. What is the
       difference between Insignares and this case in your opinion?

       Counsel for the State: In my opinion, in Insignares, a new judgment
       and sentence, that is required by the Florida Department of



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       Corrections to have in order to lawfully have someone in their
       custody exists in Insignares. . . .

       Member of the Court: So it’s . . . the piece of paper called a
       judgment?

       Counsel for the State: It is the piece of paper that complies with
       Florida law that says this is the judgment that gives you the authority
       to hold this person in custody.

       Member of the Court: Under that theory . . . even if Mr. Patterson
       doesn’t get relief in this case, someone who is in Mr. Patterson’s
       exact situation tomorrow, gets a sentence of chemical castration
       vacated pursuant to a 3.800 order, asks the judge to resentence him or
       her, gets a full resentencing, gets a new judgment minus the sentence
       of chemical castration—that person has a new judgment?

       Counsel for the State: That is a new judgment.

       Member of the Court: So it’s the piece of paper that matters?

       Counsel for the State: It is a piece of paper. It really is.

       Member of the Court: Got it. Okay. That is your answer? It is the
       piece of paper that matters.

       Counsel for the State: That is my answer.

Audio of En Banc Oral Argument at 27:59–29:27.

      It is true that there was a new formal judgment in Insignares, but that, it

seems to me, is irrelevant. First, Florida law does not require that a criminal

judgment be in writing. See Patterson, 812 F.3d at 890; Flowers v. State, 351 So.

2d 387, 389 (Fla. 1st DCA 1977); Fla. R. Crim. P. 3.700. Second, Florida law

indicates that Rule 3.800(a) orders can be tantamount to judgments and have the



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force of law when—as here—they impose a new sentence and end judicial labor.

See Adams v. State, 949 So. 2d 1125, 1126–27 (Fla. 3d DCA 2007); State v.

Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002); State v. Delvalle, 745 So. 2d

541, 542 (Fla. 4th DCA 1999). Accord De La Osa v. Wells Fargo Bank, N.A., No.

3D14–1455, 2016 WL 7232272, at *3 (Fla. 3d DCA Dec. 14. 2016) (en banc)

(explaining the interchangeability of the terms “order” and “judgment” under

Florida law).

         This, of course, is why the Florida Department of Corrections acknowledges

that it cannot chemically castrate Mr. Patterson. If state officials admit that the

Rule 3.800(a) order affects and modifies Mr. Patterson’s initial sentence, i.e.,

judgment, one is left to wonder why the majority thinks that the order amounts to

nothing more than the ineffectual and legally insignificant musings of a state trial

court.

         We have been told, time and again, that AEDPA—in both text and spirit—is

meant to respect the way that states administer their criminal justice systems.

Here, however, the majority is not concerned about the way that Florida law

operates. It ignores Florida law holding that chemical castration is a criminal

punishment, and refuses to recognize that under Florida law a Rule 3.800(a) order

like the one here can have the force of law. And it relegates to the dustbin the




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Department of Corrections’ concession that, due to the state trial court’s order, it

cannot chemically castrate Mr. Patterson. So much for respect.

                                    *******

      If this case is all about a piece of paper, then we have wasted valuable time

and resources in convening en banc. If what matters is a formal paper called a

judgment, then all Florida prisoners who obtain a favorable Rule 3.800(a) order

striking or vacating part of their initial sentence—i.e., their initial punishment—

will simply have the state trial court enter a new judgment setting out the current

sentence and incorporate the terms of the Rule 3.800(a) order in the new judgment.

That sort of a judgment, apparently, will suffice under Magwood.

      The majority nevertheless suggests that Florida law may not entitle every

prisoner who obtains Rule 3.800(a) relief to a new paper judgment. See Maj. Op.

at 12–13. But this suggestion should not be taken seriously, for the majority does

not identify a principle of Florida law to support its theory. It offers only that the

correction of a clerical error is an example of a situation in which a change “relates

back” to the original sentence so as to not require the court to enter a new

judgment. This case, of course, does not involve the correction of a clerical error,

so the majority’s example is not helpful.

      Even the majority does not really believe that this case turns on whether

there is a new piece of paper called a judgment, for it provides yet another reason



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for its holding. According to the majority, the Rule 3.800(a) order does not affect

Mr. Patterson’s confinement because it “does not authorize anything.” Maj. Op. at

10. The majority says this confidently, even though it recognizes that the Florida

Department of Corrections must read the 1998 judgment together with the Rule

3.800(a) order to “determine the scope of [Mr.]Patterson’s confinement.” Id. In

Magwood, the Supreme Court rejected the state’s argument that custody is the

critical concept in determining whether a habeas corpus petition is second or

successive, see 560 U.S. at 333–34 (explaining that the “judgment” is what

matters), yet here the majority seems to give primacy to custody, and bases its

decision on whether the Rule 3.800(a) order gives the Department of Corrections

the power to confine Mr. Patterson. I do not know why the majority thinks that the

rationale in Magwood can be jettisoned like driftwood.

                                     *******

      The majority analogizes to an order which corrects a clerical error, see Maj.

Op. at 10–11, which we have indicated does not constitute a new judgment under

the Federal Rules of Appellate Procedure. See United States v. Portillo, 363 F.3d

1161, 1165–66 (11th Cir. 2004). But the majority is setting up the proverbial straw

man, because there is no way anyone can say that an order which prohibits the

substantive punishment of chemical castration is in any way clerical.




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      Indeed, it is the majority’s position that may one day cause a conflict with

cases like Portillo. Imagine a case in which a Florida court sentences a defendant

to a term of 10 years, but then issues a judgment which mistakenly states that the

sentence is 100 years. No one notices the error until the defendant has been in

custody for 6 years. If the state court issues a new judgment which corrects the

clerical error and commits the defendant to the custody of the Department of

Corrections for (the correct) 10 years, that will, according to the majority’s

apparent rationale, constitute a new judgment under Magwood. There will be a

new piece of paper—the amended judgment—which will be affirmatively worded,

i.e., it will give the Department of Corrections the authority to keep the defendant

in custody, and that judgment will set out the length of his confinement.

      I prefer the panel’s approach, which looks to see whether the state court

corrects a legal error and enters a new sentence that is substantively different than

the original sentence. See Patterson, 812 F.3d at 891. It may not be perfect, but it

is more faithful to Insignares than what the majority is offering.

                                    *******

      The majority closes by telling us that, “as a practical matter,” the approach

taken by the panel, and endorsed by Mr. Patterson, “might hurt prisoners more than

it helps.” Maj. Op. at 13. In and of itself, the majority’s prediction about the

consequences of today’s decision is neither surprising nor inappropriate. Courts



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often have to consider the practical effects of the principle they are adopting. What

is remarkable is the reason the majority believes its decision is prisoner-friendly.

      According to the majority, if the panel approach prevails, “then state

officials would be less willing to agree to sentencing changes that benefit

prisoners, and state courts would be more hesitant to approve them.” Id. I do not

understand. Here, for example, the prosecution conceded error (and the state trial

court granted Rule 3.800(a) relief) because Florida law makes it clear that the

punishment of chemical castration was improperly imposed. See Houston v. State,

852 So. 2d 425, 428 (Fla. 5th DCA 2003).

      What the majority seems to be saying is that, in order to preclude a new

round of federal habeas corpus proceedings for state prisoners under Magwood,

state prosecutors may not concede that a sentence has been illegally imposed even

though state law on the subject is clear, and that state courts may decline to correct

a sentence that is undoubtedly illegal under state law even though it is their duty to

do so. In other words, state prosecutors and state courts will bend (or ignore) state

law in order to achieve the purportedly desirable goal of limiting the access of state

prisoners to further federal habeas corpus review.

      The majority’s underlying assumption—which I do not share—is as odd as it

is disconcerting. See Patterson, 812 F.3d at 895 (Haikala, J., concurring) (“The

notion that a trial judge would refrain from correcting a sentencing error that all of



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the parties have acknowledged . . . to avoid a potential habeas petition is repugnant

to the judicial office.”). If the majority is right, however, then the trust we place in

state courts to adjudicate issues of federal law (both statutory and constitutional) is

completely misplaced, and the deference we give them under AEDPA is a colossal

and unjustified mistake.




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