Baldwin v. Secretary, DOC (Charlotte County)

Filing 38

ORDER OF DISMISSAL dismissing re 1 Petition for Writ of Habeas Corpus without prejudice as successive. The Clerk shall enter judgment accordingly, send Petitioner an "Application for Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) by a Prisoner in State Custody" form, and close the case. Signed by Judge John E. Steele on 6/7/2021. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KENNETH BALDWIN,
Petitioner,
v.

Case No. 2:18-cv-320-JES-NPM

SECRETARY, DOC,
Respondent.
ORDER OF DISMISSAL
This cause is before the Court for consideration of Kenneth
Baldwin’s (“Petitioner’s”) 28 U.S.C. § 2254 petition for writ of
habeas

corpus.

(Doc.

1,

filed

May

7,

2018).

Petitioner

challenges the convictions and sentences entered by the Twentieth
Judicial Circuit Court in and for Charlotte County, Florida on
November 16, 1998 and October 15, 2012.

(Id. at 1).

Upon consideration of the state court record and the pleadings
filed by both Petitioner and Respondent, the Court concludes that
the petition must be dismissed without prejudice as a successive
habeas corpus petition.
I.

Background and Procedural History

On May 16, 1996, the State of Florida charged Petitioner in
a three-count information with first-degree burglary with assault
or battery (count one); sexual battery with a deadly weapon or
great force (count two); and battery on a person 65 years or older

(count three).

(Doc. 15-2 at 44–45).

On October 6, 1998,

Petitioner proceeded to trial on an amended information (id. at
144–45), and a jury found him guilty as charged.

(Doc. 15-3 at

28–30).

as

The

trial

court

sentenced

Petitioner

a

violent

habitual felony offender to concurrent terms of life in prison for
burglary and sexual battery (counts one and two) and to ten years
for battery (count three).

(Doc. 15-3 at 93–100).

On April 10,

2002, Florida’s Second District Court of Appeal (“Second DCA”)
affirmed Petitioner’s convictions and sentences per curiam without
a written opinion.

(Doc. 15-3 at 293).

On February 4, 2004, Petitioner filed a motion to correct an
illegal sentence under Rule 3.800(a) of the Florida Rules of
Criminal Procedure (“Rule 3.800 motion”).

(Doc. 15-3 at 297–313).

Petitioner urged that the trial court had erred by sentencing him
as a habitual felony offender and by providing an invalid reason
for departing from the sentencing guidelines.

(Doc. 15-3 at 298).

The trial court denied the Rule 3.800 motion in a written order
(Doc. 15-5 at 2–4), and Florida’s Second DCA affirmed per curiam.
(Doc. 15-5 at 195).
On September 25, 2006, Petitioner filed a 28 U.S.C. § 2254
petition

in

this

court

(MDFL

Case

No.

2:06-cv-513-UA-D_F)

challenging his convictions on all counts, but the Court dismissed

2

the petition with prejudice as time-barred on November 19, 2008.
(Doc. 15-5 at 260–65).
On January 4, 2011, Petitioner filed a state petition for
writ of habeas corpus. (Doc. 15-6 at 39–45).

Petitioner argued

that

the

his

sentence

was

illegal

because

at

time

of

his

convictions, the habitual violent felony offender (HVFO) statute
did not apply to life felonies.

He also argued that his sentence

was illegal because the Florida Supreme Court invalidated the
sentencing guidelines for offenses that occurred between October
1, 1995 and May 24, 1997 under Heggs v. State, 759 So. 2d 620 (Fla.
2000).

(Id.)

In response, the State argued that Petitioner was

not entitled to relief on his claims, but agreed that he should be
resentenced on count two, the sexual battery with great force life
felony (although not de novo):
Although not raised in the motion before the
Court, case law suggests that the defendant is
entitled to resentencing on count two, the
life felony. The Supreme Court in State v.
Thompson, 750 So. 2d 643 (Fla. 1999), held
that chapter 95-182, Laws of Florida, is
unconstitutional as violative of the single
subject rule. In so holding, the court found
that the imposition of a habitual felony
offender sentence may be challenged if the
life felony was committed between October 1,
1995, and May 24, 1997. Id. at 649; see also
Cooper v. State, 884 So. 2d 286 (Fla. 2d DCA
2004); Kinsey v. State, 831 So. 2d 1253 (Fla.
2d DCA 2002).
While case law suggests that
the defendant's habitual offender sentence on
count two should be corrected, the length of
the sentence is permissible because the court
3

stated reasons aside from the HVFO designation
for the upward departure from the guidelines.
(State's Exhibit M, Transcript of Proceedings,
pg. 93, line 25-pg. 94, line 12; State's
Exhibit F, Scoresheet).
Therefore, the only correction needed in this
case
is
on
count
two
regarding
the
mandatory/minimum provisions on the judgment
and sentence, where the court adjudicated the
defendant a HVFO. (State's Exhibit E, Judgment
& Sentence). This correction applies only to
count two. Count one, the first degree felony
punishable by life, should have the HVFO
designation, and at resentencing, the court
should amend the judgment and sentence so it
reflects this correction.
At most, this correction to the judgment and
sentence will only have a ministerial impact,
as
the
defendant
maintains
his
HVFO
designation on count one and remains obligated
to serve a term of natural life in DOC. So
while the sentence on count two should be
corrected, in effect, there will not be any
real impact on the length of time that the
defendant will serve in DOC. Since all that is
required in this case is a ministerial act of
sentence correction, it is not necessary that
the defendant be present at the resentencing
hearing. Dougherty v. State, 785 So. 2d 1221,
1223 (Fla. 4th DCA in his or her absence ....
An exception is made in resentencing cases
where all that is required on remand is a
ministerial act of sentence correction."); see
also Frost v. State, 169 So. 2d 443, 444 (Fla.
1st DCA 2000); Williams v. State. 697 So.2d
584 (Fla. 4th DCA 1997).
(Doc. 15-6 at 58).

The trial court treated the petition for writ

of habeas corpus as a Rule 3.800 motion and directed the clerk to
“correct page one of the Defendant’s November 16, 1998 judgment
and sentence to reflect that burglary with a battery, count one,
4

is a first-degree felony punishable by life imprisonment (i.e.,
not a life felony).” (Doc. 15-6 at 171).

The court also directed

the clerk to “forward a copy of the correction to the Florida
Department of Corrections.”
determined

that

Petitioner

(Id. at 172).
was

actually

The trial court

entitled

to

de

novo

resentencing under the 1994 sentencing guidelines on count two
only.

(Id.) 1

Thereafter, on April 28, 2011, the clerk entered a

corrected judgment noting that count one was amended to reflect
that it was a first-degree felony, punishable by life.
7 at 159).

(Doc. 15-

The amendment was specifically entered nunc pro tunc

to November 16, 1998—the date of the original sentencing.

1

Specifically, the court determined:

Before the enactment of chapter 95-182 [of the
Florida Statutes], a defendant convicted of a
life felony was not subject to an enhanced
punishment as a habitual offender . . .
However, in State v. Thompson, 750 So. 2d 643
(Fla. 1999), the Florida Supreme Court
declared chapter 95-182 unconstitutional. The
imposition of a habitual offender sentence for
a life felony can be challenged under Thompson
if the defendant committed the life felony
between October 1, 1995, and May 24, 1997.
Cooper v. State, 884 So. 2d 286 (Fla. 2d DCA
2004); see Kinsey. Here, because the Defendant
committed count two on or about March 20,
1996, he is entitled to Thompson relief on
that count. Cooper; see Kinsey. The remedy
is a de novo resentencing on count two.
Childers v. State, 861 So. 2d 1194 (Fla. 2d
DCA 2003 ).

(Doc. 15-6 at 171).
5

(Id.)

Petitioner sought rehearing, arguing that, because counts one
and two were ordered to run concurrently, and adjudicated as HVFO
offenses, both counts needed to be vacated.
63).

(Doc. 15-6 at 161–

The trial court denied the motion, but once again ordered

the clerk to correct the judgment and sentences to properly reflect
the degree of each count.

(Doc. 15-7 at 174).

2011, Florida’s Second DCA affirmed.

On December 28,

(Doc. 15-8 at 230).

The trial court held a resentencing hearing on count two on
October 15, 2012 and sentenced Petitioner to 179.5 months on count
two, but left everything else the same.

(Doc. 15-8 at 181–221). 2

On appeal, counsel for Petitioner filed an initial brief under
Anders v. California, 386 U.S. 738 (1967).

(Doc. 15-8 at 234–47).

Thereafter, Petitioner filed a pro se brief on appeal, arguing
that the re-sentencing court erred by using his HVFO sentence in
count one to compute his guideline sentence in count two.
at 254–67).

(Id.

On December 27, 2013, Florida’s Second DCA affirmed

without a written opinion.

(Id. at 269).

On May 14, 2014, Petitioner filed a state petition for writ
Because Petitioner had already served more than 179.5 months
in prison, the sentence was effectively a sentence of “time
served,” but Petitioner was still subject to the life sentence on
count one. The judge specifically noted that he was re-sentencing
Petitioner only on count two, explaining that he did not “know of
any requirement to have to resentence on all counts when the order
only addressed one.” (Doc. 15-8 at 202). After the resentencing
a separate judgment was entered addressing count two only. (Doc.
15-8 at 316).
2

6

of habeas corpus, arguing that appellate counsel was ineffective
for filing an Anders brief and for failing to argue that the 179.5month sentence he received on re-sentencing was vindictive.
15-8 at 283–369).

(Doc.

On July 24, 2014, Florida’s Second DCA denied

the petition without opinion and without ordering the state to
respond.

(Id. at 393).

On August 12, 2014, Petitioner filed another Rule 3.800
motion,

raising

resentencing.

four

claims

of

trial

(Doc. 15-9 at 2–29).

court

error

during

his

The trial court denied the

motion (id. at 217–54) and Florida’s Second DCA affirmed.

(Id.

at 277).
On September 23, 2015, Petitioner filed a motion under Rule
3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850
motion”).

(Doc. 37-1).

It was denied on May 18, 2017.

(Id. at

302).
On October 19, 2015, while the Rule 3.850 motion was still
pending, the State filed a motion to have Petitioner designated as
a

sexual

Statutes.

predator

under

section

(Doc. 15-10 at 205).

775.21(4)(a)

the

Florida

The trial court found that

Petitioner qualified as a sexual predator.
II.

of

(Id. at 217).

Discussion

Petitioner ultimately attacks the convictions and sentences
imposed by the Twentieth Judicial Circuit Court in Charlotte

7

County, Florida on October 9, 1998.

(Doc. 1).

Petitioner already

filed a 28 U.S.C. § 2254 petition attacking these same convictions
on September 27, 2006, but it was dismissed as untimely.
Case No. 2:06-cv-513-UA-D_F at docket entry 20.

See MDFL

Accordingly, this

is a second, or successive petition, and Petitioner does not state
that

he

obtained

leave

successive petition.

from

the

Eleventh

Circuit

to

file

a

See 28 U.S.C. § 2244(b)(3)(“Before a second

or successive application . . . is filed in the district court,
the applicant shall move in the appropriate court of appeals for
an

order

authorizing

the

district

court

to

consider

the

application.”); Rule 9, Rules Governing Section 2254 Cases in the
United States District Court.

Without authorization from the

Eleventh Circuit, this Court is without jurisdiction to consider
a second or successive petition.

See Burton v. Stewart, 549 U.S.

147, 157 (2007) (finding that, because the petitioner “never sought
nor received authorization from the Court of Appeals” before filing
a successive petition challenging his custody, “the District court
was without jurisdiction to entertain it”).
Petitioner urges that this is not a successive petition
because “where the State Court corrected a legal error in the
initial sentence, and resentencing that imposed a New Sentence
that is substantively different than the one originally imposed.
There is a New Judgment under the Eleventh Circuit and Supreme

8

Court(s) case law.” (Doc. 18) (emphases in original).
The Court recognizes that the term “second or successive” is
not self-defining and that not all habeas applications filed after
the first are per se successive.

Panetti v. Quarterman, 551 U.S.

930, 943-44 (2007); Stewart v. United States, 646 F.3d 856, 860
(11th Cir. 2011).
intervening

between

challenging
successive.”
(quoting

For example, where there is a “new judgment

the

the

two

resulting

habeas
new

petitions,

judgment

is

an

application

not

second

or

Magwood v. Patterson, 561 U.S. 320, 341–42 (2010)

Burton,

549

U.S.

at

156

(internal

quotation

marks

omitted)).
It is undisputed that Petitioner’s judgement as to count one
was amended and that he was resentenced on count two.

However,

despite Petitioner’s arguments otherwise, not every adjustment to
a judgment results in a “new judgment” sufficient to overcome
section 2244(b)’s jurisdictional bar.

See Osbourne v. Sec'y, Fla.

Dep't of Corr., 968 F.3d 1261, 1265–66 (11th Cir. 2020) (discussing
this

principle

with

respect

successive habeas petitions).

to

the

restriction

on

second

or

Moreover, the Eleventh Circuit has

emphasized that “[t]he judgment that matters for purposes of
section

2244

confinement.”

is

the

judgment

authorizing

the

petitioner’s

Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F. 3d

1321, 1325 (11th Cir. 2017).

Therefore, before this Court may

9

consider Petitioner’s successive petition, it must first find
that: (1) the adjustments to Petitioner’s sentences resulted in a
new judgment; and (2) his present confinement is authorized under
the

new

judgment.

In

other

words,

if

Petitioner’s

current

confinement is authorized only under the original judgment (that
was already challenged in his original section 2254 petition), his
instant habeas petition must be dismissed as successive.
Petitioner was originally sentenced to concurrent terms of
life in prison on counts one and two.
amend

the

sentence.

judgment

on

count

one

The state court’s order to

did

not

change

Petitioner’s

Rather, the court merely changed the listed “Degree of

Crime” from a “life felony”, to a “felony punishable by life.” 3
After amendment, Petitioner remained subject to a life sentence on
count one, and this is the sentence he is presently serving. 4

The

Specifically, the court direct 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 punishable by life imprisonment (i.e.,
not a life felony).” (Doc. 15-6 at 171). The corrected judgment
was entered nunc pro tunc to November 16, 1998.
(Doc. 15-7 at
159).
3

That Petitioner was not resentenced on count one was
explained to Petitioner by the trial court in the order denying
his Rule 3.850 motion. (Doc. 37-1 at 300–01). The postconviction
court explained to Petitioner that he “was resentenced as to Count
2 only” and that “[t]he Court corrected the written judgment and
sentence [on count one] by order rendered June 8, 2011 to indicate
that the Defendant’s conviction was for a felony punishable by
life. No resentencing was required as to Count 1[.]” (Id.)
4

10

“correction” to the judgment on count one is akin to the type of
“clerical

error”

described

in

Patterson

and

“generally relate back to the original judgment.”
F.3d at 1327.

determined

to

Patterson, 849

Moreover, the state court specifically entered the

“corrected judgment” nunc pro tunc to November 16, 1998—the date
of

Petitioner’s

Therefore,

under

original
Florida

judgment.
law,

the

(Doc.
amendment

15-7
of

at

159).

Petitioner’s

sentence on count one related back to the date of the initial
judgment and was not a new judgment for purposes of 28 U.S.C. §
2244(b).

See Osbourne, 968 F.3d at 1266(recognizing that “under

Florida law, nunc pro tunc means now for then [thus] when a legal
order or judgment is imposed nunc pro tunc it refers, not to a new
or de novo decision, but to the judicial act previously taken,
concerning which the record was absent or defective”). 5

The facts in Osbourne parallel those in this petition. In
Osbourne, the trial court ordered an amended sentence to reflect
the deletion of a ten year minimum mandatory sentence as to a
single count in a multi-count judgment.
968 F.3d at 1263.
Otherwise, Mr. Osbourne’s sentence remained unchanged. Id. The
judgment was corrected nunc pro tunc to the date of the original
sentence.
After the amendment, Mr. Osbourne filed a second
section 2254 petition, and maintained that he could do so because
he was resentenced and a new judgment entered. Id. at 1264. The
district court dismissed as an unauthorized second or successive
petition.
Id.
The Eleventh Circuit affirmed because Mr.
Osbourne’s amended sentence had been imposed nunc pro tunc to the
date of the original judgment. Id. at 1266–67. The court found
that “there ]was] no intervening new judgement here authorizing
Osbourne’s confinement” and as a result, his second section 2254
petition “was an unauthorized second or successive petition over
5

11

A new judgment was issued as to count two of the information
on October 25, 2012.

(Doc. 15-8 at 316).

However, the new

judgment on count two does not confer section 2241(b) jurisdiction
because it is not the judgment that authorizes Petitioner’s present
confinement and is not the judgment being challenged.
petition

is

second

or

successive

depends

on

“Whether a

‘the

judgment

challenged.’ ” Patterson, 849 F.3d at 1325 (quoting Insignares v.
Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278 (11th Cir. 2014)).
The new judgment “must be a ‘judgment authorizing the prisoner’s
confinement.’ ” Id. (quoting Magwood, 561 U.S. 332).

The sentence

on count two (a reduction from life to 176.5 months) had already
expired when it was imposed, and Petitioner was never “held” on
that

judgment.

Petitioner’s

Therefore,

present

the

confinement

only
(and

judgment
the

authorizing

only

judgment

authorizing his confinement on the day he filed this petition) is
the life sentence entered nunc pro tunc to November 16, 1998.
However, Petitioner has already challenged that judgment in his
first section 2254 petition.

When the district court dismissed

the first federal habeas petition as untimely, Petitioner lost his
one chance to obtain federal habeas review of the 1998 judgment. 6

which the district court lacked jurisdiction.”

Id.

Petitioner cannot avoid section 2244(b) by arguing that he
actually attacks the conviction and sentence on count two under
the new judgment. A federal district court has jurisdiction to
6

12

III. Conclusion
This

case

will

be

dismissed

without

prejudice

to

allow

Petitioner an opportunity to seek authorization from the Eleventh
Circuit for a second challenge to his incarceration.

Petitioner

is advised that section 2244(b)(2) limits the circumstances under
which the appellate court will authorize a second or successive
habeas

corpus

petition,

and

section

2244(d)

imposes

a

time

limitation on filing a habeas corpus petition.
Finally,

no

certificate

of

appealability

is

required

to

appeal a district court’s dismissal for lack of subject matter
jurisdiction of a successive habeas petition because such orders
are not “a final order in a habeas corpus proceeding.”

See Hubbard

v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004).
Accordingly, it is now ORDERED:
1.

This

petition

is

DISMISSED

without

prejudice

as

successive.

consider a section 2254 habeas corpus petition only from a
petitioner “in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2254(a); Unger v. Moore, 258 F.3d 1260, 1263 (11th
Cir. 2001) (recognizing that whether a petitioner is in custody
pursuant to the judgment of a state court is a jurisdictional
question). Petitioner was not in custody pursuant to the judgment
on count two when he filed this petition because that sentence had
already fully expired.
See Maleng v. Cook, 490 U.S. 488, 490
(1989) (recognizing that the Supreme Court has “interpreted the
statutory language [of section 2254(a)] as requiring that the
habeas petitioner be ‘in custody’ under the conviction or sentence
under attack at the time his petition is filed”).
13

2.

The Clerk of Court is directed to terminate any pending
motions,

close

this

case,

and

enter

judgment

accordingly.
3.

The Clerk shall also send Petitioner an “Application for
Leave to File a Second or Successive Habeas Corpus
Petition 28 U.S.C. § 2244(b) by a Prisoner in State
Custody” form.

DONE AND ORDERED in Fort Myers, Florida on this

7th

of June, 2021.

SA:
Encl:

FTMP-2
Application for Leave to File Second or Successive
Habeas Corpus Petition 28 U.S.C. s 2244(b) by a
Prisoner in State Custody

14

day