                Case: 13-15718       Date Filed: 09/13/2016       Page: 1 of 9


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-15718
                               ________________________

                         D.C. Docket No. 1:13-cv-22703-KMW



CAMERON COX,
                                                                    Petitioner-Appellant,

                                            versus

SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                     Respondent-Appellee.

                               ________________________

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


                                   (September 13, 2016)


Before TJOFLAT, MARCUS and ROGERS, * Circuit Judges.

ROGERS, Circuit Judge:



*
 Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      The Court hereby vacates its prior opinion, filed August 26, 2016, and

substitutes this corrected opinion.

      When a Florida jury convicted Cameron Cox in 1998 of three counts, he

received prison sentences on Counts 1 and 2 but a suspended sentence on Count 3.

Between 1998 and 2013, Cox filed several federal habeas corpus petitions, some of

which were denied on the merits. In 2013, upon motion by Cox, a Florida state

court dismissed Count 3 from his judgment on the grounds that his convictions for

Counts 1 and 3 violated double jeopardy.        Cox then filed the instant habeas

petition, arguing that the state court’s 2013 dismissal of Count 3 created a “new

judgment” under Magwood v. Patterson, 561 U.S. 320 (2010), thereby permitting

him to avoid AEDPA’s bar on second or successive habeas petitions. Under the

federal habeas statute as modified by AEDPA, a petitioner may challenge only the

state-court judgment “pursuant to” which the petitioner is being held “in custody.”

28 U.S.C. § 2254(a). Because Cox was never sentenced on Count 3, he has never

been held in custody pursuant to Count 3. Accordingly, because the state court’s

dismissal of Count 3 did not affect the judgment pursuant to which Cox is in fact

being held in custody, the dismissal did not create a new judgment under Magwood

and the district court properly dismissed Cox’s habeas petition as second or

successive.




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      In 1998, Cox was convicted of three felony counts: first-degree murder with

a firearm (Count 1), attempted first-degree murder with a firearm (Count 2), and

unlawful possession of a firearm while engaged in a criminal offense (Count 3).

Cox was sentenced to life imprisonment without the possibility of parole on Count

1 and eighty-eight months’ imprisonment with a three-year mandatory minimum

sentence on Count 2, to run consecutively to Count 1. The trial judge suspended

Cox’s sentence as to Count 3. On direct appeal, the state appellate court concluded

that Cox’s conviction on Count 2 should be reduced to attempted murder in the

second degree. Cox v. State, 745 So.2d 1127, 1127–28 (Fla. Dist. Ct. App. 1999).

The sentence for Count 2 was not affected, and the state appellate court remanded

the case for the trial court to correct Cox’s conviction on Count 2. Id.

      In 2000, Cox filed his first federal habeas petition, which was dismissed

without prejudice. In 2003, Cox filed his second habeas petition, which was

dismissed as untimely.     In 2008, Cox realized that the state trial court had

neglected to correct his Count 2 judgment on remand. He filed a motion seeking

the entry of judgment to reflect the reduction of Count 2 to attempted second-

degree murder. In 2009, the state trial court vacated Cox’s original judgment as to

Count 2 only and corrected Count 2 in a separate order, leaving Cox’s sentence

unchanged. In 2011, Cox filed his third habeas petition, which was dismissed as

time barred.


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      In March 2013, Cox filed a motion in Florida state court, pursuant to Fla. R.

Crim. P. 3.800, to correct an illegal sentence on the ground that his convictions for

first-degree murder with a firearm (Count 1) and for unlawful possession of a

firearm while engaged in a criminal offense (Count 3) violated double jeopardy. In

May 2013, the state court granted Cox’s motion, stating: “The Judgment shall only

be amended to reflect the Defendant was convicted of First Degree Murder and

Attempted Second Degree Murder. The Defendant was not sentenced to Count

Three and the Judgment will stand. Count Three will be dismissed.” Cox then

filed his fourth federal habeas petition—the one presently before us—in July 2013,

raising a number of claims related to his 1998 convictions for Counts 1 and 2 and

arguing that AEDPA’s bar on second or successive petitions does not apply,

because the 2013 state-court order created a “new judgment.” The district court

dismissed Cox’s petition as successive, reasoning that “the judgment and sentence

that Petitioner is attacking here is the judgment and sentence as to Count 1, which

has not been amended and which Petitioner has already attacked in three prior

petitions to this Court,” and granted a certificate of appealability.

      Cox’s petition was properly dismissed as successive. Because Cox was

never held in custody pursuant to Count 3, the 2013 state-court order dismissing

Count 3 did not create a new judgment that would permit Cox to collaterally attack

his remaining convictions anew. In Magwood v. Patterson, 561 U.S. 320 (2010),


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the Supreme Court held that a federal habeas petition is not “second or successive”

if it challenges a “new judgment” that was issued after the prisoner filed his first

habeas petition. Id. at 331–33. In Magwood, a new judgment was created when

the state court resentenced the petitioner but left the petitioner’s underlying

conviction intact. Id. at 330–31. The Supreme Court held that the petition, which

challenged the sentence that was imposed at the resentencing, was not successive.

Id. Subsequently, in Insignares v. Secretary, Florida Department of Corrections,

755 F.3d 1273 (11th Cir. 2014), we answered a question left open by Magwood by

holding that a petitioner may challenge his or her undisturbed conviction after the

state imposed only a new sentence. Id. at 1280–81. We explained that a habeas

petition is not second or successive when it is the first to challenge a new

judgment, regardless of whether the petition challenges the sentence or the

underlying conviction. Id.

      Under the federal habeas statute as modified by AEDPA, a habeas petition

may challenge only the state-court judgment “pursuant to” which the petitioner is

being held “in custody.” 28 U.S.C. § 2254(a). Due to this restriction, the federal

habeas statute is “specifically focused on the judgment which holds the petitioner

in confinement.” Ferreira, v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1293 (11th Cir.

2007). Consequently, “the judgment to which [the federal habeas statute] refers is

the underlying conviction and most recent sentence that authorizes the petitioner’s


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current detention.” Id. at 1292 (emphasis added). In this case, Cox is being held

(and always has been held) in custody pursuant to the 1998 convictions for Counts

1 and 2 and their accompanying sentences of life imprisonment without the

possibility of parole and eighty-eight months’ imprisonment with a three-year

mandatory minimum sentence. Because a sentence was never imposed for Count

3, Count 3 never authorized Cox’s detention, and its dismissal changed neither the

length nor the nature of the confinement that Florida is permitted to impose on

him, nor the conviction on which his confinement was based. In short, Cox’s

petition is second or successive because Count 3’s dismissal had no effect on the

judgment holding him in custody.

      At oral argument, Cox argued that because “custody” in the context of

habeas relief is not limited to physical custody but also includes any “significant

restraint on . . . liberty that is not shared by the general public,” Howard v.

Warden, 776 F.3d 772, 775 (11th Cir. 2015) (citing Jones v. Cunningham, 371

U.S. 236, 240–43 (1963)), it is a concept broad enough to encompass the collateral

effects caused by the fact of having a felony conviction on one’s record, such as

the potential to incur criminal history points and career-criminal status under the

Sentencing Guidelines. However, as the Supreme Court has explained, a habeas

petitioner is not held “in custody” by a conviction “merely because of the

possibility that the prior conviction will be used to enhance the sentences imposed


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for any subsequent crimes of which he is convicted.” Maleng v. Cook, 490 U.S.

488, 492 (1989). Just as the fact of conviction is not sufficient to constitute

“custody” under § 2254 when the state imposes only a fine with no provision for

incarceration, see Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir. 1982), the fact

of conviction cannot constitute “custody” when the state imposes no punishment at

all.   To permit the simple fact of a felony conviction without any form of

accompanying punishment to constitute “custody” under the federal habeas statute

would be to eliminate the custody requirement altogether.

       Cox also argues that because our cases define “judgment” as including both

the conviction and the sentence, see Ferreira, 494 F.3d at 1292; Insignares, 755

F.3d at 1281, invalidating one count of a multi-count conviction creates a new

judgment under Magwood even if the petitioner’s overall sentence does not

change. Essentially, Cox argues that a non-clerical change to either component of

a judgment—i.e., a change either to the conviction or to the sentence—results in a

new judgment, even if the other component is left untouched. The problem with

Cox’s argument is that Count 3 never constituted a judgment as defined by

Ferreira and Insignares in the first place. “[T]here is only one judgment, and it is

comprised of both the sentence and the conviction.” Insignares, 755 F.3d at 1281.

When a conviction is not attached to any type of sentence—such as the case here

with Count 3—it is not a judgment within the meaning of the federal habeas


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statute. Because Count 3 was never part of Cox’s judgment for purposes of the

federal habeas statute, its dismissal did not create a new one under Magwood.

      Finally, in deciding that the 2013 state-court order dismissing Count 3 did

not create a new judgment, we need not take sides in a split between the Fifth and

Second Circuits. The Fifth Circuit in In re Lampton, 667 F.3d 585 (5th Cir. 2012),

and the Second Circuit in Johnson v. United States, 623 F.3d 41 (2d Cir. 2010),

dealt with materially indistinguishable facts. In both cases, the petitioners were

convicted on multiple counts and sentenced to multiple prison terms to run

concurrently. Lampton, 667 F.3d at 587; Johnson, 623 F.3d at 42. In each case, as

a result of the petitioner’s first 28 U.S.C. § 2255 motion, one of the convictions

and sentences was vacated on double jeopardy grounds but the other convictions

and sentences were left intact. Lampton, 667 F.3d at 587; Johnson, 623 F.3d at 43.

Because in both cases the vacated conviction’s sentence was the same length as or

shorter than the sentence of the remaining convictions, the total amount of time the

petitioner would be imprisoned ultimately did not change. Lampton, 667 F.3d at

587; Johnson, 623 F.3d at 43. When the petitioner in Johnson filed his second

§ 2255 motion, the Second Circuit concluded that the motion challenged a new

judgment under Magwood and therefore was not second or successive. 623 F.3d at

45–46.   Conversely, when the petitioner in Lampton filed his second § 2255

motion, the Fifth Circuit rejected his Magwood arguments and reasoned that the


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petitioner “is still serving the same life sentence on the same . . . conviction” that

was originally imposed. Id. at 588–89. We need not delve into this divide,

because Cox’s Count 3 is materially distinguishable from the situation of

concurrent sentences.     Unlike Johnson and Lampton, in which the vacated

convictions carried sentences that were part of the petitioner’s original total

sentencing holding him in custody, here, Count 3 never carried a sentence that was

part of Cox’s original total sentencing.

      For the foregoing reasons, the district court’s dismissal of Cox’s habeas

petition as second or successive is affirmed.




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