Cummings v. Secretary, Florida Department of Corrections et al

Filing 33

ORDER dismissing case without prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 8/29/2024. (JND)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
HORACE B. CUMMINGS,
Petitioner,
vs.

Case No. 3:21-cv-711-TJC-LLL

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER OF DISMISSAL WITHOUT PREJUDICE
I.

Status
Petitioner, Horace B. Cummings, an inmate of the Florida penal system,

initiated this case by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus (Doc. 1). Respondents filed a response asking that this case be
dismissed because the Petition is second or successive and is otherwise
untimely filed. See Doc. 30 (Resp.).1 Petitioner, with help from counsel,2 replied.

Attached to the Response are various exhibits (Docs. 30-1 to 30-87). The Court
refers to the exhibits as “Resp. Ex.”
1

On October 21, 2021, W. Charles Fletcher, Esquire, filed a Notice of
Appearance on Petitioner’s behalf. See Doc. 12. Counsel filed several requests to
amend, but his requests were denied without prejudice as procedurally deficient. See
Docs. 18, 20, 22. Although given time and several opportunities to do so, he never filed
an amended petition. Instead, on July 6, 2022, he filed a Notice advising of his intent
to proceed on the Petition as filed. See Doc. 28.
2

See Doc. 31. This case is ripe for review.3
II.

Procedural History4
On December 18, 1997, a jury found Petitioner guilty of one count of first

degree murder (count one); one count of armed kidnapping (count two); four
counts of armed robbery (counts four, five, six, and eight); two counts of
attempted armed robbery (counts nine and ten); and one count of armed
burglary, a lesser included offense (count eleven). Resp. Ex. 6. On January 16,
1998, the trial court sentenced Petitioner to a mandatory life term of
incarceration for count one and a thirty-year term for each remaining count.
Resp. Ex. 7. The trial court also ordered that the sentences imposed on counts
two, four, five, six, eight, nine, ten, and eleven run concurrently with one
another, but consecutively to the sentence imposed on count one. Id. The First
District Court of Appeal per curiam affirmed Petitioner’s judgment and

“In a habeas corpus proceeding, the burden is on the petitioner to establish
the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,
1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court
must consider whether such a hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Id. The Court finds that
“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
3

The Court summarizes only the procedural history necessary for purposes of
this Order.
4

2

sentences on September 2, 1999, and denied Petitioner’s motion for rehearing
on October 15, 1999. Resp. Exs. 19, 21.
On August 15, 2001, Petitioner, with help from counsel, filed with the
trial court a Florida Rule of Criminal Procedure 3.850 motion. Resp. Ex. 25 at
1-32. The trial court summarily denied the Rule 3.850 motion on October 11,
2002, id. at 33-36; and the First DCA per curiam affirmed the denial without a
written opinion, Resp. Ex. 26.
On October 6, 2003, Petitioner filed in this Court his first federal habeas
petition challenging his January 16, 1998, judgment of conviction. Resp. Ex. 80;
see also Cummings v. Crosby, No. 3:03-cv-860-J-25HTS (M.D. Fla). On
February 4, 2004, the Court entered an Order dismissing Petitioner’s first
habeas petition with prejudice as untimely filed. Resp. Ex. 82. On June 4, 2004,
the Eleventh Circuit Court of Appeals denied Petitioner’s motion for a
certificate of appealability. See Cummings v. Sec’y, Dep’t of Corr., No. 04-11383D (11th Cir. June 4, 2004).
On February 27, 2012, Petitioner filed with the trial court a Florida Rule
of Criminal Procedure 3.800(a) motion challenging his thirty-year sentences for
counts nine and ten. Resp. Ex. 55 at 1-15. On July 20, 2012, the trial court
denied the Rule 3.800(a) motion as untimely filed. Id. at 12-14. On January 30,
2013, the First DCA reversed the denial and remanded the issue to the trial
court to determine whether Petitioner should be resentenced on the challenged
3

convictions, because attempted armed robbery is a second degree felony
carrying a maximum sentence of fifteen years. Resp. Ex. 57; see also Cummings
v. State, 106 So. 3d 33 (Fla. 1st DCA 2013).
On January 15, 2014, on remand, the trial court vacated its July 20, 2012,
order; granted Petitioner’s 3.800(a) motion; and ordered that Petitioner be
resentenced on counts nine and ten.5 Resp. Ex. 60 at 81-84. Before the
resentencing hearing, the state filed a sentencing memorandum indicating that
Petitioner’s thirty-year sentence for count six was also illegal and stated
Petitioner’s sentences for counts six, nine, and ten should be reduced to fifteenyear terms.6 Id. at 94.
On May 9, 2014, the trial court conducted a resentencing hearing, during
which Petitioner appeared in person with appointed counsel. Resp. Ex. 60 at
227-43. During the hearing, Petitioner testified about mitigating factors related
to both the circumstances of the crimes and his work with juvenile prisoners
during the seventeen years Petitioner spent in prison following his convictions.

The trial court found that Petitioner’s sentences for counts nine and ten were
illegal because the use of a firearm is an essential element of attempted armed
robbery; and thus the counts should not have been reclassified from a second degree
felony to a first degree felony. See Resp. Ex. 60 at 81-84.
5

As to count six, the state explained that the trial court granted Petitioner’s
motion for judgment of acquittal as to the allegation that Petitioner took property
during the robbery, and thus the verdict form submitted to the jury was for attempted
armed robbery, a second degree felony with a maximum sentence exposure of fifteen
years, not armed robbery as included on Petitioner’s written judgment and sentence.
Resp. Ex. 60 at 95.
6

4

Id. at 234-42. The trial court then sentenced Petitioner to a fifteen-year term of
incarceration as to counts six, nine, and ten, and ordered that each new
sentence run concurrent to Petitioner’s life sentence and that all other
sentences remain unchanged. Id. at 242-43. Petitioner’s May 20147 written
judgment and sentence designated Petitioner’s new sentences as being entered
nunc pro tunc to Petitioner’s January 16, 1998, judgment.8 Id. at 214. Petitioner
appealed the new sentences and appellate counsel filed an initial brief pursuant
to Anders v. California, 386 U.S. 738 (1967), representing that no good faith
argument of reversible error could be made. Resp. Ex. 61. With the First DCA’s
permission, Petitioner filed a pro se initial brief arguing the trial court erred
because he was not resentenced by the original sentencing judge; it improperly
reclassified counts four, five, and eleven; it improperly ordered that counts two,
four, five, eight, and eleven run consecutive to count one; it did not award
Petitioner earned prison and jail credit; and it did not have a de novo
resentencing hearing. Resp. Ex. 62. The First DCA per curiam affirmed
Petitioner’s May 2014 revised judgment and sentence without a written opinion
on October 29, 2015. Resp. Ex. 63 at 2. And it denied Petitioner’s motion for

Petitioner’s revised written judgment and sentence is dated May 13, 2014.
Resp. Ex. 60 at 214.
7

The revised written judgment and sentence also corrected several scrivener
errors discussed at the resentencing hearing. Resp. Ex. 60 at 230-31.
8

5

rehearing on December 17, 2015. Id. at 3.
Thereafter, Petitioner began filing a series of postconviction motions with
the state trial and appellate courts. He filed a Florida Rule of Criminal
Procedure 3.800(c) motion on January 25, 2016, which the trial court denied on
July 12, 2016.9 Doc. 31-1 at 40-43, 45. Petitioner then filed a Florida Rule of
Criminal Procedure 3.801 motion to correct jail credit on April 25, 2016, which
the trial court denied in part and granted in part on December 29, 2016. See
Resp. Ex. 68 at 1-2, 61-64. And he filed another Rule 3.850 motion on June 21,
2016, which the trial court dismissed with prejudice as untimely filed and as
second or successive on November 22, 2017. Resp. Ex. 73 at 1-25, 46-50.
On February 2, 2018, Petitioner filed a second federal habeas petition
with this Court along with a request to stay and hold in abeyance his petition
while he appealed the trial court’s denial of his Rule 3.801 and Rule 3.850
motions. Resp. Ex. 84; see also Cummings v. Sec’y, Dep’t of Corr., No. 3:18-cv207-BJD-JRK (M.D. Fla.). This Court denied the request to stay and dismissed
the petition without prejudice.10 Resp. Ex. 87.

Respondents do not reference or include Petitioner’s January 25, 2016, Rule
3.800(c) motion or the trial court’s July 2016 denial order in their exhibits, but
Petitioner provided a copy of those documents when he filed his Reply.
9

The Court acknowledged Petitioner’s pending state court postconviction
appeals and reasoned that “in recognition of the nature of comity between the national
and state sovereignties of our federal system, the Court should give the state courts
an opportunity to rule on Petitioner’s unexhausted claims.” Resp. Ex. 87.
10

6

The First DCA per curiam affirmed the trial court’s dismissal of
Petitioner’s successive Rule 3.850 motion on April 13, 2018. Resp. Ex. 74. And
on September 18, 2019, the First DCA issued a written opinion affirming in part
and reversing in part the trial court’s April 25, 2016, order on Petitioner’s Rule
3.801 motion and remanded for entry of modified jail credit on all sentences.
Resp. Ex. 69. The trial court revised Petitioner’s written judgment and sentence
to reflect the corrected jail credit on March 24, 2021. Resp. Ex. 71. Petitioner
filed the Petition here on July 15, 2021. Doc. 1.
III.

Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a

state prisoner’s federal habeas corpus petition. See Ledford v. Warden, Ga.
Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). AEDPA
bars the filing of a second or successive habeas petition, absent approval from
the appropriate court of appeals. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second
or successive application permitted by this section 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.”); see also Insignares
v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278 (11th Cir. 2014) (finding that
“[s]ubject to [certain] exceptions[,] . . . a district judge lacks jurisdiction to decide
a second or successive petition filed without [the Eleventh Circuit’s]
authorization”). This standard was meant to be high because
7

[t]he statutory bar against second or successive
motions is one of the most important AEDPA
safeguards for finality of judgment. . . . “The central
purpose behind the AEDPA was to ensure greater
finality of state and federal court judgments in
criminal cases, and to that end its provisions greatly
restrict the filing of second or successive petitions.”
In re Hill, 715 F.3d 284, 290 (11th Cir. 2013) (quoting Gilbert v. United States,
640 F.3d 1293, 1311 (11th Cir. 2011)).
Here, Respondents argue the Petition should be dismissed because it is
successive. Resp. at 20-23. This Court agrees. The Court previously adjudicated
Petitioner’s federal habeas claims challenging this judgment of conviction. See
Resp. Ex. 82; see also Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (holding
“dismissal of a § 2254 petition for failure to comply with the one-year statute of
limitations constitutes an adjudication on the merits that renders future
petitions under § 2254 challenging the same conviction ‘second or successive’
petitions . . . .”). Thus, this Court has no authority to consider the claims raised
by Petitioner without prior authorization from the Eleventh Circuit. See 28
U.S.C. § 2244(b)(3)(A) (requiring a petitioner to “move in the appropriate court
of appeals for an order authorizing the district court to consider” the filing of “a
second or successive application”); Insignares,755 F.3d at 1278 (finding that
“[s]ubject to [certain] exceptions[,] . . . a district judge lacks jurisdiction to decide
a second or successive petition filed without [the Eleventh Circuit’s]
authorization”). A review of the Eleventh Circuit’s docket does not show that
8

Petitioner has filed a request to file a second or successive habeas petition.
Petitioner argues that his Petition is not successive because his May 9,
2014, “resentencing was de novo and resulted in a new judgment and sentence.”
Doc. 31 at 9-23. But as Respondents correctly note, the Eleventh Circuit’s
Osbourne decision dictates the outcome here. See Resp. at 18-19 (citing
Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1266 (11th Cir. 2020)). In
Osbourne, the Eleventh Circuit held that the trial court’s 2014 “amended
sentence,” which deleted a ten-year mandatory minimum on one count, “was
not a ‘new judgment’ for purposes of § 2244” because it was imposed nunc pro
tunc to the date of the original 2003 judgment, and thus the district court lacked
jurisdiction over the petitioner’s unauthorized second or successive habeas
petition. 968 F.3d at 1263, 1266-67. The court emphasized that “not every action
that alters a sentence necessarily constitutes a new judgment” and “the test for
whether there is a new judgment . . . [is not] whether the prisoner’s sentence
‘has materially changed.’” Id. at 1265-66 (summarizing Patterson v. Sec’y, Fla.
Dep’t of Corr., 849 F.3d 1321, 1325-28 (11th Cir. 2017)). Cf. Thompson v. Fla.
Dep’t of Corr., 606 F. App’x 495, 505 (11th Cir. 2015) (summarizing the court’s
relevant precedents and holding the petitioner’s resentencing resulted in a new
judgment where the trial court held “a de novo resentencing hearing [and]
expressly vacated” his original sentences). Instead, the court found the
“determining factor” was the nunc pro tunc designation, which, under Florida
9

law “means ‘now for then’ and 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.”

Id.

at

1266

(internal

quotation

marks

omitted)

(distinguishing Magwood v. Patterson, 561 U.S. 320 (2010); Insignares, 755
F.3d at 1273).
This Court has applied the Osbourne rule when determining whether a
petition is second or successive following a resentencing hearing. See Merritt v.
Sec’y, Dep’t of Corr., No. 8:20-cv-3109-SDM-AEP, 2024 WL 229421, at *3 (M.D.
Fla. Jan. 22, 2024) (finding amended judgment applied nunc pro tunc to the
original sentencing and thus the petition was second or successive); see also
Baldwin v. Sec’y, DOC, No. 2:18-cv-320-JES-NPM, 2021 WL 2315004, at *4-5
(M.D. Fla. June 7, 2021) (finding that the petition was an unauthorized second
or successive petition because the petitioner’s confinement was authorized only
under the original judgment that was already challenged, and the “corrected
judgment” was entered nunc pro tunc to the original judgment).
This Court has also found that the Osbourne rule applies when
conducting a timeliness analysis, even when a trial court substantively changes
the petitioner’s sentence upon resentencing. See, e.g., James v. Secy’, Fla. Dep’t
of Corr., 499 F. Supp. 3d 1169, 1174 (M.D. Fla. 2020). For instance, in James,
the court concluded that the petitioner’s “corrected sentence[s] [did] not qualify
as . . . new judgment[s] for purposes of § 2244” because they were imposed nunc
10

pro tunc. Id. at 1174 (citing Osbourne, 968 F.3d at 1266-67). In that case, the
trial court resentenced the petitioner twice and ultimately reduced the
petitioner’s life sentence to a fifty-five-year term, in accordance with the
purviews of Miller v. Alabama, 567 U.S. 460 (2012), and Falcon v. State, 162
So. 3d 954 (Fla. 2015). See James, 499 F. Supp. 3d at 1171-72. See also
Richardson v. Sec’y, Fla. Dep’t of Corr., No. 8:20-cv-489-TPB-CPT, 2023 WL
4419731, at * 1 (M.D. Fla. July 10, 2023) (finding the nunc pro tunc designation
controlled even though the state court substantively amended the petitioner’s
sentence after holding a resentencing hearing, reducing his sentence from fiftyfive years to forty); Heiser v. Secy’, Fla. Dep’t of Corr., No. 8:18-cv-1365-TPBAEP, 2021 WL 4295270, at *1, 3-4 (M.D. Fla. Sept. 21, 2021) (concluding the
trial court’s amended sentence to include a three-year mandatory minimum
term, entered nunc pro tunc, was not a new judgment that re-started the
petitioner’s limitation period under AEDPA). Likewise, the Southern and
Northern Districts have reached the same conclusion. See Cuffy v. Dixon, No.
23-cv-61582-RAR, 2023 WL 6307794, at * 3 (S.D. Fla. Sept. 28, 2023) (finding
that Osbourne controls even though the trial court held a resentencing hearing
and reduced the petitioner’s sentence from thirty years to twenty-five years
because the judgment that authorized the petitioner’s confinement was the
original one by virtue of the nunc pro tunc designation); Kirk v. Dixon, No. 5:23cv-105-TKW-HTC, 2023 WL 6976921, at *4 (N.D. Fla. Sept. 21, 2023) (“Since
11

Osbourne was decided, all three federal district courts in Florida . . . have relied
on Osbourne, in finding amended judgments entered nunc pro tunc do not
constitute new judgments restarting the AEDPA.”), rep. & recommendation
adopted by 2023 WL 697779, at *1 (N.D. Fla. Oct. 23, 2023).11
Petitioner argues that the trial court erroneously included a “nunc pro
tunc” designation on the revised May 2014 written judgment and sentence, and
this Court should disregard that scrivener’s error. Doc. 31 at 18-23. But bound
by Osbourne, the Court finds Petitioner’s May 2014 revised judgment is not a
new judgment under AEDPA, even if the nunc pro tunc designation arguably
was incorrect under Florida law. See Osbourne, 968 F.3d at 1266 n.4 (noting
that “the propriety of labeling a Florida judgment ‘nunc pro tunc’ is a matter of
state law,” and the state court should have an opportunity to decide whether
the designation was made in error); see also Richardson, 2023 WL 4419731, at
*1-2 (finding that “[e]ven though the amended judgment did not ministerially
correct the earlier judgment and instead substantively amended the judgment,
whether a judgment is properly entered nunc pro tunc raises an issue of state
law).

The Court notes that although decisions of other district courts are not
binding, they may be cited as persuasive authority. See Stone v. First Union Corp.,
371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would
not be bound to follow any other district court’s determination, the decision would have
significant persuasive effects.”).
11

12

Also, of import, the only “judgment that matters for purposes of Section
2244 is ‘the judgment authorizing the prisoner’s confinement.’” Patterson, 849
F.3d at 1325 (quoting Magwood, 561 U.S. at 332). See also Ferreira v. Sec’y,
Dep’t of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007) (addressing what
constitutes a judgment for purposes of § 2244(d)(1)(A) and explaining that “the
writ and AEDPA, including its limitations provisions, are specifically focused
on the judgment which holds the [applicant] in confinement”). Under the
revised 2014 judgment, Petitioner’s thirty-year terms of imprisonment on
counts six, nine, and ten were reduced to fifteen-year terms. But because
Petitioner was originally sentenced in January 1998, he had served more than
fifteen years toward all three of the new sentences when the 2014 revised
judgment was entered. Thus, Petitioner had already completed the fifteen-year
terms imposed for counts six, nine, and ten when the trial court entered the
2014 revised judgment and the only judgment that authorizes Petitioner’s
imprisonment both now and when the revised judgment was entered is the
original judgment and life sentence entered in 1998.
Because this Court has already adjudicated Petitioner’s claims
challenging his 1998 judgment, this Court has no authority to consider the
claims raised by Petitioner. Therefore, this case will be dismissed without
prejudice to Petitioner’s right to file a new petition if he obtains the required
authorization from the Eleventh Circuit.
13

Accordingly, it is
ORDERED AND ADJUDGED:
1.

This case is DISMISSED without prejudice.

2.

The Clerk shall enter judgment dismissing this case without

prejudice, terminate any pending motions, and close the case.
3.

If Petitioner appeals the dismissal of the case, the Court denies a

certificate of appealability.12 Because this Court has determined that a
certificate of appealability is not warranted, the Clerk shall terminate from the
pending motions report any motion to proceed on appeal as a pauper that may
be filed in this case. Such termination shall serve as a denial of the motion.
4.

The Clerk shall send Petitioner an Application for Leave to File a

Second or Successive Habeas Corpus Petition. If he desires to file a second or
successive habeas petition in this Court, he must complete the application and
file it in the Eleventh Circuit Court of Appeals which will decide whether to
allow it.

This Court should issue a certificate of appealability only if Petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make this substantial showing, Petitioner “must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable
or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve
encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of
the record as a whole, a certificate of appealability is not warranted.
12

14

DONE AND ORDERED at Jacksonville, Florida, this 29th day of
August, 2024.

Jax-7
c:
Horace Cummings, #303027
counsel of record

15