Daniel Rocha v. Secretary, Florida Department, et al

Filing

Opinion issued by court as to Appellant Daniel A. Rocha. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11384

Date Filed: 05/22/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11384
Non-Argument Calendar
________________________
D.C. Docket No. 8:16-cv-00523-VMC-EAJ

DANIEL A. ROCHA,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 22, 2017)

Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.

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Date Filed: 05/22/2017

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PER CURIAM:

Daniel Rocha, a Florida state prisoner proceeding pro se,1 appeals the
dismissal of his 28 U.S.C. § 2254 petition as second or successive. Reversible
error has been shown; we vacate the judgment and remand for further proceedings.
In 1999, Rocha was convicted of first-degree murder (Count I) and of
conspiracy to commit aggravated battery (Count II). Rocha was sentenced to life
imprisonment for Count I and to 13.3 years’ imprisonment for Count II, to run
consecutively. Rocha’s convictions were affirmed by the state court on direct
appeal.
In 2012, Rocha filed his first 28 U.S.C § 2254 petition, which the district
court dismissed as untimely under AEDPA. This Court denied Rocha a certificate
of appealability.
Meanwhile, Rocha continued to seek collateral relief through the Florida
state courts. In November 2014, the state court granted Rocha’s motion to correct
an illegal sentence, filed pursuant to Fla. R. Crim. P. 3.800(a), and vacated Rocha’s
13.3-year sentence on Count II. Then, in July 2015, the state court held a
resentencing hearing and resentenced Rocha to 13.4 months’ imprisonment on
Count II.
1

In his reply brief on appeal, Rocha requests appointment of counsel. Rocha’s request is
DENIED.
2

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In March 2016, Rocha filed the pro se section 2254 petition at issue in this
appeal. In pertinent part, Rocha contended that his petition was timely filed -- and
not second or successive -- because his July 2015 resentencing constituted a new
judgment for purposes of AEDPA. In support of his position, Rocha relied on our
decision in Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir.
2014). The district court summarily dismissed Rocha’s petition without prejudice
as second or successive. This appeal followed.
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).
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). A state prisoner who wishes to file a second or successive
application for a writ of habeas corpus 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, 127 S. Ct. 793, 799 (2007).
The Supreme Court has explained, however, that “the phrase ‘second or
successive’ must be interpreted with respect to the judgment challenged.”
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Magwood v. Patterson, 130 S. Ct. 2788, 2797 (2010). Thus, where there exists an
intervening judgment between the filing of two habeas petitions, the “application
challenging the resulting new judgment is not ‘second or successive’ at all.” Id. at
2802. “[T]he existence of a new judgment is dispositive.” Id. at 2800. Moreover,
“when a habeas petition is the first to challenge a new judgment, it is not ‘second
or successive,’ regardless of whether its claims challenge the sentence or the
underlying conviction.” Insignares, 755 F.3d at 1281.
Here -- as in Insignares -- the state court entered a new intervening judgment
resentencing Rocha in 2015. Because Rocha’s March 2016 section 2254 petition is
the first petition to challenge this new judgment, Rocha’s petition is not “second or
successive.” See id.
Florida agrees that -- to the extent Rocha challenges his conviction and
sentence for Count II -- Rocha’s section 2254 petition is not second or successive.
Florida contends, however, that because Rocha’s conviction and sentence for
Count I remain undisturbed, Rocha’s petition is second or successive to the extent
it challenges his Count I conviction or sentence. We disagree.
In Magwood, the Supreme Court rejected a similar approach where -- for
purposes of determining whether a habeas petition was “second or successive” -- a
single habeas petition would be bifurcated into two petitions: one comprised of
claims that “challenge[d] the new, amended component of the sentence,” and one
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comprised of claims that “challenge[d] any component of the original sentence that
was not amended.” See Magwood, 130 S. Ct. at 2795. The Supreme Court
“explained that the phrase ‘second or successive’ applies to an application as a
whole and rejected the argument that there are ‘second or successive’ claims under
§ 2244(b).” Insignares, 755 F.3d at 1279 (quotations omitted) (citing Magwood,
130 S. Ct. at 2798 & n.10).
Because Rocha’s March 2016 section 2254 petition is the first petition in
which he challenges his new 2015 judgment, the application “as a whole” is not
second or successive. The petition, thus, is not subject to dismissal under section
2244(b). Accordingly, we vacate the judgment and remand for further
proceedings.2
VACATED AND REMANDED.

2

At this stage in the proceedings, we make no determination about whether the individual claims
raised in Rocha’s section 2254 petition may be subject to dismissal on other grounds. Cf.
Magwood, 130 S. Ct. at 2802 (“procedural-default rules continue to constrain review of claims in
all applications, whether the applications are ‘second or successive’ or not.”); Insignares, 755
F.3d at 1281 n.9 (although a habeas petition is not “second or successive,” the claims raised in
the petition are still subject to other limitations under AEDPA, including procedural default rules
and the law-of-the-case doctrine).
5