Miller v. Secretary, Department of Corrections et al (Hillsborough County)

Filing 11

ORDER granting the Secretary's 8 motion to dismiss and dismissing Miller's 1 petition for writ of habeas corpus as second or successive. The Clerk is directed to close this case. Signed by Judge Thomas P. Barber on 11/20/2020. (JDT)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ARSELES DEVON MILLER,
Petitioner,
v.

Case No. 8:20-cv-1130-T-60AEP

SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
_______________________________________/
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS
SECOND OR SUCCESSIVE
Before the Court is Respondent’s “Motion to Dismiss Petition for Lack of
Jurisdiction.” (Doc. 8) After reviewing the motion and Miller’s response (Doc. 10),
the Court finds as follows:
A district court may both preliminarily review a petition for writ of habeas
corpus and summarily dismiss the petition “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to relief. . . .” Rule 4,
Rules Governing Section 2254 Cases. Miller’s petition challenges his state court
convictions for cocaine trafficking and delivery of cocaine. (Doc. 1 at 1) Miller filed
an earlier petition challenging these same convictions. Petition, Miller v. Sec’y,
Dep’t Corrs., No. 8:08-cv-2530-T-17AEP (M.D. Fla.), ECF No. 1. The district court
denied the earlier petition on the merits and denied a certificate of appealability.
Order, Id., ECF No. 13.

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Because the petition in this case challenges the same state court judgment
that Miller challenged in the earlier petition and raises ineffective assistance of
counsel claims that he could have raised in the earlier petition (Doc. 1 at 5–22), the
petition is “second or successive.” 28 U.S.C. § 2244(a); Magwood v. Patterson,
561 U.S. 320, 338–39 (2010).
The district court lacks jurisdiction to review the “second or successive”
petition until the court of appeals grants Miller permission to file the petition.
28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147, 157 (2007) (“. . . Burton
neither sought nor received authorization from the Court of Appeals before filing his
2002 petition, a ‘second or successive’ petition challenging his custody, and so the
District Court was without jurisdiction to entertain it.”); Holland v. Sec’y, Fla. Dep’t
Corrs., 941 F.3d 1285, 1287 (11th Cir. 2019) (“Holland has already filed two habeas
petitions in federal court. The first of those petitions was denied on the merits.
That means any later petition — containing claims, like the ones here, that could
have been raised when Holland filed his initial Section 2254 petition — that
Holland filed is considered ‘successive’ and must meet the requirements set out in
28 U.S.C. § 2244(b).”). 1
In the new petition, Miller contends that he challenges a new amended
judgment entered on November 21, 2018. (Doc. 1 at 1) The state court granted
Miller’s motion to correct his sentence in part and awarded him additional credit for

Three times Miller moved for an order authorizing a “second or successive” petition, and the
court of appeals denied the motions. Order, In re: Miller, No. 15-11329-B (11th Cir. April 23, 2015);
Order, In re: Miller, No. 15-14201-G (11th Cir. Oct. 13, 2015); Order, In re: Miller, No. 15-15004-G
(11th Cir. Dec. 1, 2015).
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pretrial detention. (Doc. 8-2 at 104–05) In the amended judgment, the state court
corrected the award of jail credit and imposed Miller’s sentences “[e]ffective” August
1, 2005 — the date of his original judgment. (Doc. 8-2 at 20–30, 107–10) Under
state law, the correction of the award of jail credit is ministerial and the amended
judgment relates back to the date of the original judgment. Hagley v. State,
140 So. 3d 678, 679 (Fla. 5th DCA 2014) (“Florida has long recognized a court’s
inherent power to correct clerical errors such as calculation of jail credit.”); Luke
v. State, 672 So. 2d 654, 655 (Fla. 4th DCA 1996) (“[T]he court’s recitation of the
number of days’ credit for time served is merely a ministerial act requiring no
personal judgment or discretion in its performance.”); Carson v. State, 489 So. 2d
1236, 1238 (Fla. 2d DCA 1986) (“A court may correct clerical mistakes in its own
judgments and records, nunc pro tunc, even after the term of court has expired, and
such corrections generally relate back and take effect as of the date of judgment.”).
The state court did not enter the amended judgment nunc pro tunc to the
date of the original judgment but did not amend the sentences that authorize
Miller’s confinement either. Patterson v. Sec’y, Fla. Dep’t Corrs., 849 F.3d 1321,
1328 (11th Cir. 2017) (“Patterson would have us hold that any order that changes a
prisoner’s sentence is a new judgment that triggers a new round of federal review.
But the only judgment that matters is the judgment that authorizes Patterson’s
confinement . . . .”). Consequently, Miller’s amended judgment is not a new
judgment that entitles him to a second round of review on federal habeas.
Goodloe v. Sec’y, Dep’t Corrs., 823 F. App’x 801, 803 (11th Cir. 2020) (“Here, the

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2015 jail credit order did not ‘vacate [Goodloe’s] sentence and replace it with a new
one.’ By its terms, the order merely corrected the original sentence by addressing a
clerical error in Goodloe’s credit time.”) (citations omitted); Wells v. Sec’y, Dep’t
Corrs., 769 F. App’x 885, 887 (11th Cir. 2019) (“In other words, the amended
judgment corrected the record to reflect the intent of the trial court at Wells’s
sentencing to credit him for every day he had served in jail awaiting sentencing.
The amended judgment was not a new judgment because it was not the ‘judgment
that authorize[d] [Wells’s] custody.’”) (citations omitted). 2 It is therefore
ORDERED, ADJUDGED, AND DECREED:
1.

Respondent’s motion to dismiss the petition for the writ of the habeas
corpus (Doc. 8) is GRANTED. The petition for the writ of habeas
corpus (Doc. 1) is DISMISSED as an unauthorized “second or
successive” petition.

2.

The district court cannot issue a certificate of appealability. Hubbard
v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). The Clerk is
directed to CLOSE this case.

DONE and ORDERED in Chambers, in Tampa, Florida, this 20th day of
November, 2020.
____________________________________
TOM BARBER
UNITED STATES DISTRICT JUDGE

In his response, Miller cites Esty v. Jones, No. 3:14-cv-357, 2015 WL 4130108
(N.D. Fla. July 9, 2015) and Mundy v. Sec’y, Dep’t Corrs., No. 5:11-cv-71 (N.D. Fla. Apr. 18, 2012).
(Doc. 10 at 1–2) Both unpublished district court orders predate Wells and Goodloe.
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