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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12957
Non-Argument Calendar
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D.C. Docket No. 6:18-cv-00831-PGB-KRS
TAYLOR GLENN WELLS,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 26, 2019)
Before WILSON, WILLIAM PRYOR and HULL, Circuit Judges.
PER CURIAM:
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Taylor Wells, a Florida prisoner, appeals the sua sponte dismissal of his
second petition for a writ of habeas corpus.
28 U.S.C. §§ 2254, 2244(b)(2). Wells
filed his second petition after obtaining from a Florida court an amended judgment
crediting him for additional time that he had spent in jail awaiting trial. See Fla. R.
Crim. P. 3.801. The district court dismissed Wells’s petition for lack of jurisdiction
because he failed to obtain leave to file a second or successive petition. See
28
U.S.C. § 2244(b)(3)(A). We affirm.
In 1994, a Florida jury found Wells guilty of first-degree murder, armed
burglary, two counts of armed robbery, conspiracy, and attempted armed robbery,
and the trial court sentenced him to imprisonment for life and credited him for 416
days that he had served in the Brevard County Jail. Wells appealed and, in 1995, a
Florida appellate court affirmed his convictions and sentence. Wells v. State,
658
So. 2d 1005 (Fla. Dist. Ct. App. 1995). In 2000, Wells filed a federal petition for a
writ of habeas corpus,
28 U.S.C. § 2254, which the district court dismissed as
untimely,
id. § 2244(d). We affirmed summarily. Wells v. Moore,
254 F.3d 1084
(11th Cir. 2001).
In 2017, Wells moved the state trial court to amend its judgment to credit
him for 57 additional days that he served in jail before sentencing. See Fla. R.
Crim. P. 3.801 (“A court may correct a final sentence that fails to allow a defendant
credit for all of the time he . . . spent in the county jail before sentencing . . . .”).
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The trial court granted Wells’s motion and ordered the clerk of court to “amend the
Judgment and Sentence to reflect that [Wells was] entitled to a total of 473 days
jail credit.” The amended judgment listed Wells’s original convictions and sentence
and stated his sentence was “amended as to additional credit for [473 days of] time
serve[d].” On the signature lines of the amended judgment, the trial judge wrote,
“nunc pro tunc 8-16-1994.”
On May 28, 2018, Wells filed his second federal petition for a writ of habeas
corpus. Wells argued that his sentence to life imprisonment constituted cruel and
unusual punishment in violation of the Eighth Amendment; that his convictions
were obtained in violation of Miranda v. Arizona,
384 U.S. 436 (1966); that
insufficient evidence supported his convictions; that trial counsel was ineffective;
and that his codefendants had supplied newly-discovered evidence of his
innocence. The district court dismissed Wells’s petition as successive without
requesting a response from the state. See
28 U.S.C. § 2244(b)(2), (b)(3)(A). Wells
moved to alter or amend the judgment, Fed. R. Crim. P. 52(b), 59(e), but the
district court denied the motion.
“We review de novo whether a petition for a writ of habeas corpus is second
or successive.” Patterson v. Sec’y, Fla. Dep’t of Corr.,
849 F.3d 1321, 1324 (11th
Cir. 2017) (en banc). To determine whether a petition is successive, we examine
the “judgment challenged.”
Id. at 1325 (quoting Insignares v. Sec’y, Fla. Dep’t of
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Corr.,
755 F.3d 1273, 1277 (11th Cir. 2014)). “The judgment that matters for
purposes of section 2244 is ‘the judgment authorizing the prisoner’s
confinement.’”
Id. (quoting Magwood v. Patterson,
561 U.S. 320, 332 (2010)). To
be entitled to another round of federal habeas corpus review, the prisoner must
have obtained “a new judgment intervening between [his] two habeas petitions.”
Magwood,
561 U.S. at 339 (discussing Burton v. Stewart,
549 U.S. 147 (2007)).
The district court correctly interpreted the order granting Wells’s motion and
the ensuing amended judgment as a correction of a clerical error rather than as a
“new judgment.” To be a “new judgment,” an amended judgment has to be “the
judgment ‘pursuant to’ which the prisoner is ‘in custody.’” Patterson, 849 F.3d at
1326 (quoting
28 U.S.C. § 2254). It follows that “not all changes to a sentence
create a new judgment,” such as when “a court corrects a clerical mistake . . . .”
Id.
(citing United States v. Portillo,
363 F.3d 1161 (11th Cir. 2004)). A mistake is
clerical when the error is “minor and mechanical in nature” or when, as provided in
Federal Rule of Criminal Procedure 36, there is an “error in the record arising from
oversight or omission.” Portillo,
363 F.3d at 1165. The order of the Florida court
and its amended judgment that awarded Wells “additional credit” for “a total of
473 days jail credit” corrected a clerical error in Wells’s sentence. See Hagley v.
State,
140 So. 3d 678, 679 (Fla. Dist. Ct. App. 2014) (“Florida has long recognized
a court’s inherent power to correct clerical errors such as calculation of jail
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credit.”); Luke v. State,
672 So. 2d 654, 655 (Fla. Dist. Ct. App. 1996) (“[T]he
court’s recitation of the number of days’ credit for time served is merely a
ministerial act . . . .”); Simari v. State,
309 So. 2d 183, 184 (Fla. Dist. Ct. App.
1975) (classifying a judgment used to revise the amount of jail credit as “corrective
in nature”). And the state court entered its amended judgment nunc pro tunc, which
meant that the judgment “function[ed] . . . to correct the record to reflect a prior
ruling made in fact but defectively recorded,” De Baun v. Michael,
333 So. 2d 106,
108 (Fla. Dist. Ct. App. 1976). 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.” See Patterson, 849 F.3d at 1326.
The district court correctly dismissed Wells’s second petition as successive
under section 2244(b). Section 2244(b) provides that “[a] claim presented in a
second or successive habeas corpus application under section 2254 . . . shall be
dismissed,”
28 U.S.C. § 2244(b)(2). Wells cannot avoid the prohibition against
successive petitions because there was no “new judgment intervening between
[his] two habeas petitions” to entitle him to a second round of federal habeas
corpus review. See Magwood,
561 U.S. at 339. The amended judgment that the
Florida court entered “imposes no sentence and gives the Department no
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authority,” to imprison Wells. Patterson, 849 F.3d at 1326. The “judgment that
authorizes [Wells’s] confinement,” which is “[t]he judgment that matters for
purposes of section 2244,” is “the sentence entered in [1994]” that “‘committed
[him] to the custody of the Department of Corrections.” Id. at 1325. That 1994
“judgment remains the only order that commands the Secretary to imprison
[Wells].” Id. at 1327. Wells’s second petition, which collaterally attacks his 1994
convictions and sentence, is a successive petition. Because Wells “neither sought
nor received authorization from the Court of Appeals before filing . . . [his] ‘second
or successive’ petition challenging his custody, . . . the District Court was without
jurisdiction to entertain it.” Burton,
549 U.S. at 157.
Wells likens his amended judgment to the new judgment the prisoner
received in Insignares, but that precedent is distinguishable. The prisoner in
Insignares filed a motion to correct an illegal sentence under Florida Rule of
Criminal Procedure 3.800 and succeeded in having his sentence for attempted
murder reduced from 20 years to 10 years, which resulted in the state court
entering a “corrected sentence and new judgment.” 755 F.3d at 1277. In contrast,
Wells’s success in having his jail credit corrected under Rule 3.801 did not create a
new judgment. Wells did not receive “a new prison sentence . . . [that] replace[d]
[his 1994] sentence,” Patterson, 849 F.3d at 1326–27, like the prisoner in
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Insignares, 755 F.3d at 1277, and in Magwood,
561 U.S. at 323–24, 338–39, to
entitle him to another round of federal habeas corpus review.
We AFFIRM the dismissal of Wells’s petition.
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