           Case: 16-15772    Date Filed: 11/29/2017   Page: 1 of 5


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15772
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:15-cv-00222-RH-CAS



WILLIE JACKSON JOHNSON,

                                                           Petitioner-Appellant,

                                   versus

SECRETARY,
DEPARTMENT OF CORRECTIONS,

                                                          Respondent-Appellee.
                      ________________________

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

                            (November 29, 2017)



Before HULL, WILSON, and EDMONDSON, Circuit Judges.
                Case: 16-15772    Date Filed: 11/29/2017    Page: 2 of 5


PER CURIAM:



       Petitioner Willie Johnson, a Florida state prisoner proceeding pro se, appeals

the dismissal of his 28 U.S.C. § 2254 petition. The district court determined that

the petition was both second or successive and also untimely. No reversible error

has been shown; we affirm.

       In 1983, Petitioner was convicted of first-degree murder (Count 1) and of

sexual battery (Count 2). Petitioner was sentenced to life imprisonment for each of

his two convictions, to run consecutively. At the sentencing hearing, the state

court announced orally Petitioner’s sentence for Count 1: “[I]t is the judgment of

the Court and sentence of the law that you be committed to the Department of

Corrections for the period of your natural life, and pursuant to Section 775.082

Florida Statutes, you shall be required to serve twenty-five years before being

eligible for parole.” On the written judgment form, a box was checked indicating

that -- pursuant to Fla. Stat. § 947.16(3) -- the state court would “retain[]

jurisdiction over the defendant for review of any Parole Commission release order

for the period of 25 years.”

       Petitioner’s convictions and sentences were affirmed on direct appeal.

Thereafter, Petitioner made several unsuccessful attempts to obtain post-conviction

relief in state court.


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      Petitioner filed his first 28 U.S.C. § 2254 petition in 2009. The district court

dismissed the petition as untimely. Petitioner filed no appeal.

      In 2013, the state court granted in part Petitioner’s motion to correct an

illegal sentence: a motion filed pursuant to Fla. R. Crim. P. 3.800. In pertinent

part, the state court determined (and the State conceded) that the sentencing court

lacked authority under Fla. Stat. § 947.16(3) to retain jurisdiction over a life

sentence. Accordingly, the state court struck the retention-of-jurisdiction provision

from Petitioner’s written judgment. The state court entered no new judgment. On

appeal, the state appellate court affirmed. The mandate issued on 8 April 2014.

      On 7 April 2015, Petitioner filed the pro se section 2254 petition at issue in

this appeal. The district court dismissed the petition as second or successive and as

untimely. The district court explained that the state court’s 2013 order striking the

retention-of-jurisdiction provision in Petitioner’s written judgment constituted no

“new judgment” for purposes of restarting the statute of limitations or for avoiding

the restriction on filing second or successive section 2254 petitions. The district

court granted Petitioner a certificate of appealability.

      “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).




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      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

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, 549 U.S. 147, 152-53 (2007).

      In determining whether a habeas petition is second or successive, we look to

the judgment being challenged. Patterson, 849 F.3d at 1325. A petition is not

considered second or successive if (1) “it challenges a ‘new judgment’ issued after

the prisoner filed his first petition” and (2) that new judgment authorizes the

prisoner’s confinement. Id. (citing Magwood v. Patterson, 561 U.S. 320, 324, 332

(2010)).

      Here, the only judgment authorizing Petitioner’s confinement is the original

judgment entered in 1983. Although the state court later struck the retention-of-

jurisdiction provision in Petitioner’s written judgment, the state court left

undisturbed the remainder of the judgment -- including the portion of the judgment

committing Petitioner to the custody of the Department of Corrections. The state


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court issued no intervening “new judgment.” Instead, the state court simply

corrected a clerical error on the 1983 written judgment form. Cf. Patterson, 849

F.3d at 1326 (noting that an order correcting a clerical mistake creates no new

judgment for purposes of permitting a second round of habeas review); State v.

Jones, 753 So. 2d 1276, 1277 n.2 (Fla. 2000) (when “[t]he written sentencing order

is inconsistent with the oral sentencing pronouncement . . . the oral pronouncement

controls.”).

      Because Petitioner’s 2015 habeas petition is Petitioner’s second challenge to

his 1983 criminal judgment, the district court dismissed properly the petition as an

unauthorized second or successive habeas petition. See Burton, 549 U.S. at 152-

53. We also agree with the district court’s determination that the petition was

untimely filed. Petitioner filed his petition in 2015, long after the deadline for

filing a federal habeas petition had expired.

      AFFIRMED.




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