Philip Mosier v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12034
Non-Argument Calendar
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D.C. Docket No. 8:16-cv-00551-SDM-MAP
PHILIP MOSIER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 21, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and NEWSOM, Circuit Judges.
PER CURIAM:
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Philip Mosier appeals the district court’s dismissal of his 28 U.S.C. § 2254
petition as second or successive and its denial of his Federal Rule of Civil
Procedure 59(e) motion to alter or amend the judgment.
Mosier pleaded no contest in Florida state court to robbery with a deadly
weapon, sexual battery using a deadly weapon, and resisting arrest without
violence. In 2004 he was sentenced to 30 years, with 476 days credited for time
served. His direct appeal and state post-conviction motions were unsuccessful. In
2011 he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, which
the district court denied.
Mosier returned to state court several years later and filed a motion under
Florida Rule of Criminal Procedure 3.801 seeking one additional day of jail time
credit. See Fla. R. Crim. P. 3.801(a) (“A court may correct a final sentence that
fails to allow a defendant credit for all of the time he or she spent in the county jail
before sentencing . . . .”). The state court granted that motion and ordered that he
was entitled to one extra day of credit. Mosier then filed a “motion to enter new
judgment and sentence” to reflect the additional day of jail time credit. The state
court denied that motion on the ground that an amended judgment was unnecessary
because its order granting the Rule 3.801 motion had the “same legal effect as an
amended judgment and sentence.”
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After the state court granted his Rule 3.801 motion, Mosier filed this § 2254
petition attacking his Florida convictions. The district court denied his petition on
the ground that it was second or successive and was filed without authorization
from this Court. 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.”). Mosier then filed a motion to alter or amend the
judgment, which the court denied. This is his appeal.
“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 second or successive, we
look to the “judgment challenged.” Id. (emphasis and quotation marks omitted).
The Supreme Court has held that where “there is a new judgment intervening
between . . . two habeas petitions, an application challenging the resulting new
judgment is not second or successive.” Magwood v. Patterson, 561 U.S. 320, 341,
130 S. Ct. 2788, 2802 (2010). That new judgment “must be a judgment
authorizing the prisoner’s confinement” to permit a second round of federal habeas
review. Patterson, 849 F.3d at 1325 (quotation marks omitted). Mosier contends
that his successful Rule 3.801 motion to correct his jail time credit had the effect of
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substantively changing his sentence and was the “functional equivalent” of a new
judgment, which means that he can pursue this second petition.
That contention fails. Mosier was never resentenced, and his Rule 3.801
motion did not result in a new judgment; indeed, the state court denied his motion
for a new judgment. Cf. Magwood, 561 U.S. at 323–27, 130 S. Ct. at 2792–94
(holding that petition was not second or successive where the petitioner was
sentenced to death, successfully petitioned for habeas corpus relief, received a new
sentence and judgment after resentencing, and then filed the second habeas
petition); Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th Cir.
2014) (concluding that petition was not second or successive where it was the first
petition challenging a new sentence and new judgment after resentencing). The
award of an additional day of jail credit left Mosier’s original 30-year sentence and
judgment of confinement unchanged. See Patterson, 849 F.3d at 1325–27 (holding
that an order granting petitioner’s motion to eliminate chemical castration
requirement from his sentence did not trigger new round of federal review, because
the state court “never issued a new prison sentence . . . to replace” his original
sentence or “issue[d] a new judgment authorizing [his] confinement”). Mosier’s
argument that he is entitled to another round of federal habeas review because the
state court’s order had the effect of amending the original judgment is
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unpersuasive, as we have rejected the argument that “any order that alters a
sentence necessarily constitutes a new judgment.” Id. at 1326.
Because the “state court did not issue a new judgment authorizing [Mosier’s]
confinement when it granted [Mosier’s] motion” for additional jail time, his 2004
“judgment remains the only order that commands the Secretary to imprison [him],”
which means that the district court correctly determined that this § 2254 petition is
second or successive. Id. at 1327; see also Wentzell v. Neven, 674 F.3d 1124,
1128 (9th Cir. 2012) (stating that petition is second or successive where it does not
challenge a “new, intervening judgment” entered by the state trial court); In re
Lampton, 667 F.3d 585, 589–90 (5th Cir. 2012) (concluding that petition was
second or successive where the “district court did not enter an amended judgment
of conviction” or impose a new sentence). And the district court did not abuse its
discretion in denying Mosier’s motion to alter or amend the judgment, which
merely rehashed the arguments he made as to why his petition was not second or
successive. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (“A Rule
59(e) motion cannot be used to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judgment.”) (alterations
and quotation marks omitted).
AFFIRMED.
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