Kenneth Baldwin v. Secretary, DOC

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12829
Non-Argument Calendar
____________________
KENNETH BALDWIN,
Petitioner-Appellant,
versus
SECRETARY, DOC,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:18-cv-00320-JES-NPM
____________________
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2 Opinion of the Court 21-12829
Before LUCK, BRASHER, and EDMONDSON, Circuit Judges.
PER CURIAM:
Kenneth Baldwin, a Florida state prisoner proceeding
pro se,
appeals the dismissal of his
pro se 28 U.S.C. § 2254 petition as sec-
ond or successive.* No reversible error has been shown; we affirm.
In 1998, Baldwin was convicted in state court of three of-
fenses: (1) first-degree burglary with assault or battery (Count 1);
(2) sexual battery with a deadly weapon or great force (Count 2);
and (3) battery on a person at least 65 years of age (Count 3). On
16 November 1998, the state court sentenced Baldwin to terms of
life imprisonment for Counts 1 and 2 and to a ten-year term of im-
prisonment for Count 3, all to run concurrently. Baldwin’s convic-
tions and sentences were affirmed on direct appeal.
Baldwin filed his first 28 U.S.C. § 2254 petition in 2006. The
district court dismissed with prejudice the petition as time-barred.
In 2011, the state court denied Baldwin’s motion to correct
an illegal sentence: a motion filed under Fla. R. Crim. P. 3.800. The
state court noted, however, that the 16 November 1998 written
judgment stated erroneously that Baldwin’s conviction for first-de-
gree burglary with battery constituted a “life felony.” The state
* We read liberally briefs filed by
pro se litigants.
See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008). We also construe liberally
pro se pleadings.
See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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21-12829 Opinion of the Court 3
court thus ordered the clerk of court to “correct page one of the
Defendant’s November 16, 1998 judgment and sentence to reflect
that burglary with a battery, count one, is a first-degree felony pun-
ishable by life imprisonment (i.e., not a life felony).” The state
court also determined -- based on intervening changes in Florida
law -- that Baldwin was entitled to be resentenced on Count 2.
On 28 April 2011, the clerk entered a “Corrected Judgment”
designating Count 1 as a first-degree felony, punishable by life. The
Corrected Judgment was stamped “Nunc Pro Tunc” to 16 Novem-
ber 1998: the date of the original judgment.
On 15 October 2012, the state court resentenced Baldwin to
179.5 months’ imprisonment for Count 2: a sentence that was
shorter than the time Baldwin had already served in prison. The
15 October 2012 written judgment reflected only the new sentence
for Count 2.
In May 2018, Baldwin filed
pro se the section 2254 petition
at issue in this appeal. The district court dismissed without preju-
dice the petition as second or successive. The district court ex-
plained that the Corrected Judgment related back to the date of the
original 16 November 1998 judgment and, thus, constituted no
“new judgment” for purposes of avoiding the restriction on filing
second or successive section 2254 petitions. The district court also
recognized -- although the state court issued a new judgment re-
sentencing Baldwin for Count 2 -- that judgment conferred no ju-
risdiction because the Count 2 sentence had already expired and
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4 Opinion of the Court 21-12829
did not authorize Baldwin’s present confinement. The district
court also denied Baldwin’s motion for reconsideration.
“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).
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 suc-
cessive, 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 pris-
oner’s confinement.
Id. (citing
Magwood v. Patterson, 561 U.S.
320, 324, 332 (2010)).
Here, the only judgment authorizing Baldwin’s present con-
finement is the Corrected Judgment on Count 1. The Corrected
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21-12829 Opinion of the Court 5
Judgment -- entered nunc pro tunc to 16 November 1998 -- consti-
tutes no intervening “new judgment” for purposes of section 2244.
See Obsourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1266-67
(11th Cir. 2020) (concluding that, under Florida law, the defend-
ant’s corrected sentence imposed nunc pro tunc related back to the
date of the original judgment and was no “new judgment” under
section 2244). Instead, the Corrected Judgment simply corrected a
clerical error in the original written judgment.
Cf. Patterson, 849
F.3d at 1326 (noting that an order correcting a clerical mistake cre-
ates no new judgment for purposes of permitting a second round
of habeas review).
Because the 2018 habeas petition underlying this appeal rep-
resents Baldwin’s second challenge to his original criminal judg-
ment, the district court dismissed properly the petition as an unau-
thorized second or successive habeas petition.
See Burton, 549 U.S.
at 152-53. The district court abused no discretion in denying Bald-
win’s motion for reconsideration of that dismissal.
AFFIRMED.
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