PATTERSON v. BUSS

Filing 20

ORDER DENYING THE PETITION AND GRANTING A CERTIFICATE OF APPEALABILITY, ACCEPTING 15 REPORT AND RECOMMENDATION. "The petition is DENIED withprejudice." A certificate of appealability is GRANTED on this issue: whether t he state-court order deleting from the petitioners sentence the term requiring administration of medroxyprogesterone acetate constitutes a new judgment, so that the current petition is not second or successive. Signed by JUDGE ROBERT L HINKLE on 04/18/2012. (krb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

ACE PATTERSON,
Petitioner,
v.

CASE NO. 4:11cv10-RH/CAS

SECRETARY KENNETH S. TUCKER,
Respondent.
_________________________________/

ORDER DENYING THE PETITION AND
GRANTING A CERTIFICATE OF APPEALABILITY

This petition for a writ of habeas corpus under 28 U.S.C. § 2254 is before
the court on the magistrate judge’s report and recommendation, ECF No. 15, and
the objections, ECF No. 19. I have reviewed de novo the issues raised by the
objections. The report and recommendation correctly concludes that the petition
should be dismissed as an unauthorized second or successive petition. The report
and recommendation is adopted as the court’s opinion on this issue. I also
conclude, however, that a certificate of appealability should be granted on this
issue.

Case No. 4:11cv10-RH/CAS

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Rule 11 of the Rules Governing § 2254 Cases requires a district court to
“issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting
out the standards applicable to a § 2254 petition on the merits). As the Court said
in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing that reasonable
jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were “ ‘adequate to deserve encouragement to proceed
further.’ ”
Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in
order to obtain a certificate of appealability when dismissal is based on procedural
grounds, a petitioner must show, “at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. at 484.

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The petitioner has made the required showing. A petition challenging a new
judgment is not “second or successive” even if the new judgment carries forward
the substance of a decision that was part of an original judgment that was attacked
through an earlier petition. See Magwood v. Patterson, 130 S. Ct. 2788 (2010);
Campbell v. Sec’y, Dep’t of Corr., 447 F. App’x 25 (11th Cir. 2011) (unpublished);
cf. Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1292-93 (11th Cir. 2007).
The law of the circuit is unsettled on whether the state court’s order deleting a term
of the original sentence—the term requiring administration of
medroxyprogesterone acetate—constituted a new judgment, so that the current
petition was not second or successive. See also Wentzell v. Neven, No. 10-16605,
2012 WL 1071638 (9th Cir. April 2, 2012); Johnson v. United States, 623 F.3d 41
(2d Cir. 2010); Martin v. Bartow, 628 F.3d 871 (7th Cir. 2010).
For these reasons,
IT IS ORDERED:
1. The report and recommendation is ACCEPTED.
2. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
3. A certificate of appealability is GRANTED on this issue: whether the
state-court order deleting from the petitioner’s sentence the term requiring

Case No. 4:11cv10-RH/CAS

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administration of medroxyprogesterone acetate constitutes a new judgment, so that
the current petition is not second or successive.
4. The clerk must close the file.
SO ORDERED on April 18, 2012.
s/Robert L. Hinkle
United States District Judge

Case No. 4:11cv10-RH/CAS