from the United States District Court for the Northern
District of Florida D.C. Docket No. 4:11-cv-00010-RH-CAS
ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
appeal requires us to decide whether a consent order that a
state prisoner not undergo chemical castration allows him to
attack his eighteen-year-old convictions a second time,
notwithstanding the statutory bar of successive petitions, 28
U.S.C. § 2244(b)(1). In 1998, a Florida jury convicted
Ace Patterson of burglary, aggravated kidnapping of a child,
and two counts of capital sexual battery. The trial court
sentenced him to life imprisonment and chemical castration.
Patterson then filed several unsuccessful collateral attacks
in state court and a petition for a writ of habeas corpus
that the district court dismissed as untimely. In 2009,
Patterson filed a motion to correct an illegal sentence, Fla.
R. Crim. P. 3.800, on the ground that the trial court failed
to comply with the statutory prerequisites for chemical
castration. After the state and the victim's guardian ad
litem consented to Patterson's motion, a Florida court
granted it and ordered that he not undergo chemical
castration. But the Florida court did not enter a new
judgment or order commanding the Secretary of the Department
of Corrections to imprison him. Patterson then filed another
federal petition that attacked his convictions. The district
court dismissed that petition as "second or
successive." § 2244(b)(1). Patterson argues that
the order that he not undergo chemical castration constitutes
a new "judgment, " 28 U.S.C. § 2254(b)(1),
that makes his latest petition not second or successive under
Magwood v. Patterson, 561 U.S. 320 (2010). But
because Patterson is not "in custody pursuant to, "
§ 2254(b)(1), the consent order that he not undergo
chemical castration, that order does not trigger a new round
of federal collateral review. See Magwood, 561 U.S.
at 332-33. We affirm the dismissal of Patterson's
petition as second or successive.
Patterson is a prisoner in the custody of the Secretary of
the Florida Department of Corrections. In 1997, he visited
his cousin and his cousin's fiancée at their home
in Madison County, Florida. There, the couple introduced
Patterson to their eight-year-old daughter before she went to
bed. Patterson ate dinner and spent time with the couple and
then left for the night. But he later returned uninvited.
middle of the night, Patterson broke into his cousin's
home and lifted his cousin's sleeping eight-year-old
daughter out of her bed. He carried her outside, brought her
to the woods, and raped her. When she tried to scream,
Patterson gagged her by sticking his fingers down her throat.
When she tried to escape, Patterson grabbed her leg, dragged
her back into the dirt, and raped her again. After the
assault, the girl found her way back home. Her parents awoke
to the sound of their eight-year-old daughter knocking on the
front door-crying, covered in dirt, missing a clump of hair,
and covered in scratches and bruises. The medical examiners
later discovered dirt in her vagina and severe vaginal
1998, a jury convicted Patterson of burglary, aggravated
kidnapping of a child, and two counts of capital sexual
battery. The Florida trial court sentenced him to 311 months
of imprisonment for the burglary and kidnapping convictions
and to consecutive sentences of life imprisonment and
chemical castration for the sexual battery convictions. The
sentencing form "committed [Patterson] to the custody of
the Department of Corrections" and directed the
Department to "keep and safely imprison" Patterson
for the remainder of his life. A state appellate court later
affirmed his convictions and sentences. Patterson v.
State, 736 So.2d 1185 (Fla. Dist. Ct. App. 1999).
then initiated a flurry of collateral attacks against his
convictions, including four petitions for writs of habeas
corpus in state court and an ethics complaint against the
prosecutor who tried his case. His efforts failed, and a
Florida appellate court warned him that "the filing of
any further successive and/or frivolous petitions or appeals
may result in the imposition of sanctions."
Patterson v. State, 788 So.2d 397 (Fla. Dist. Ct.
2006, Patterson filed his first federal petition for a writ
of habeas corpus. He alleged that his convictions were
secured in violation of the Due Process Clause of the
Fourteenth Amendment, the Self-Incrimination Clause of the
Fifth Amendment, and the right to effective assistance of
counsel under the Sixth Amendment. The district court
dismissed his petition as untimely. Ordinarily, that decision
would have brought closure to the victim of his crimes, who
was by then eighteen years old.
then pursued a different line of attack. Instead of
challenging his convictions, he challenged the portion of his
sentence that required chemical castration. Patterson filed a
motion to correct an illegal sentence, Fla. R. Crim. P.
3.800, on the ground that the trial court did not comply with
the statutory prerequisites for chemical castration. The
State of Florida and the guardian ad litem for the victim
assented to Patterson's motion. With Patterson imprisoned
for life, the prosecutor and guardian ad litem viewed
chemical castration as a "moot point" and believed
that contesting his motion was not worth "expos[ing] the
victim to the painful remembrance of the Defendant's
actions against her."
2009, the Florida trial court granted Patterson's motion
in an order that stated, "[T]he Defendant shall not have
to undergo [chemical castration] as previously ordered by the
Court at his sentencing in the above styled matter." The
2009 order did not vacate Patterson's sentence and
replace it with a new one. Nor did it direct the Department
of Corrections to hold Patterson or perform any affirmative
his success in state court, Patterson resumed his attack on
his 1998 convictions in federal court. In 2011, he filed a
second petition for a writ of habeas corpus, which again
alleged that his convictions were secured in violation of the
Fifth, Sixth, and Fourteenth Amendments. A magistrate judge
recommended dismissing Patterson's petition as second or
successive because Patterson was "not in custody
pursuant to" the 2009 order. The district court adopted
that recommendation and dismissed Patterson's petition as
second or successive.
divided panel of this Court reversed. Patterson v.
Sec'y, Fla. Dep't of Corr., 812 F.3d 885 (11th
Cir. 2016), reh'g en banc granted, opinion
vacated, 836 F.3d 1358 (11th Cir. 2016). The panel
concluded that Patterson's petition was not second or
successive because Patterson was in custody pursuant to a new
judgment-the order that he not undergo chemical castration.
We vacated the panel opinion and ordered rehearing en banc.
We appointed Professor Erica Hashimoto to represent Patterson
throughout this appeal. We thank Professor Hashimoto for her
excellent brief and oral argument in keeping with the highest
tradition of the legal profession.
STANDARD OF REVIEW
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).
state prisoner has had a trial, a direct appeal, and an
opportunity for collateral review in the state courts, he
typically gets one, and only one, chance to collaterally
attack his conviction in federal court. With exceptions not
relevant here, section 2244(b) prohibits a state prisoner
from filing a "second or successive" habeas
petition. 28 U.S.C. § 2244(b). This prohibition "is
grounded in respect for the finality of criminal
judgments." Calderon v. Thompson, 523 U.S. 538,
558 (1998). Finality, in turn, is essential to achieving the
goals of our criminal justice system: "Deterrence
depends upon the expectation that 'one violating the law
will swiftly and certainly become subject to punishment, just
punishment.' Rehabilitation demands that the convicted
defendant realize that 'he is justly subject to sanction,
that he stands in need of rehabilitation.'"
Engle v. Isaac, 456 U.S. 107, 127 n.32 (1982)
(quoting Paul M. Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 Harv. L.
Rev. 441, 452 (1963); Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38
U. Chi. L. Rev. 142, 146 (1970)). Finality also
"benefits the victim by helping [her] put the trauma of
the crime and prosecution behind [her]." Presnell v.
Kemp, 835 F.2d 1567, 1573 (11th Cir. 1988).
a petition is second or successive depends on "the
judgment challenged." Insignares v.
Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1278
(11th Cir. 2014). The judgment that matters for purposes of
section 2244 is "the judgment authorizing the
prisoner's confinement." Magwood , 561 U.S.
at 332 (emphasis omitted) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 83 (2005)). This conclusion follows
from the text of the statute. Section 2244(b) refers to
second or successive petitions "under section
2254." 28 U.S.C. § 2244(b). And section 2254
governs petitions that challenge "the judgment of a
State court" "pursuant to" which the prisoner
is "in custody." Id. § 2254.
Accordingly, the bar on second or successive petitions
ordinarily prevents a prisoner from twice contesting the
judgment authorizing his confinement. See Burton v.
Stewart, 549 U.S. 147, 153 (2007).
petition is not second or successive if it challenges a
"new judgment" issued after the prisoner filed his
first petition, Magwood, 561 U.S. at 324, but the
new judgment must be a "judgment authorizing the
prisoner's confinement." Id. at 332
(emphasis omitted) (quoting Dotson, 544 U.S. at 83).
For example, in Magwood, the district court granted
a prisoner's first habeas petition and vacated his
sentence. Id. at 326. The state court then conducted
a new sentencing hearing and entered a new judgment and
sentence of imprisonment. Id. When the prisoner
filed a second habeas petition, the Supreme Court held that
it was not second or successive because the petition was the
prisoner's first challenge to the new prison
sentence. Id. at 339. Although the prisoner's
second petition restated the same errors as his first
petition, the errors he ...