Cox v. Secretary, FL DOC, No. 13-15718 (11th Cir. 2016)Annotate this Case
Petitioner was convicted by a jury of three counts and he received prison sentences on Counts 1 and 2, but his sentence was suspended for Count 3. A Florida state court dismissed Count 3 from petitioner's judgment on the grounds that his convictions for Counts 1 and 3 violated double jeopardy. Petitioner subsequently filed a habeas petition, arguing that the state court’s 2013 dismissal of Count 3 created a “new judgment” under Magwood v. Patterson, thereby permitting him to avoid the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2254, bar on second or successive habeas petitions. The court concluded that, because petitioner was never sentenced on Count 3, he has never been held in custody pursuant to Count 3. Accordingly, because the state court’s dismissal of Count 3 did not affect the judgment pursuant to which petitioner is in fact being held in custody, the dismissal did not create a new judgment under Magwood and the district court properly dismissed petitioner's habeas petition as second or successive. The court affirmed the district court's dismissal of the habeas petition as second or successive.
The court issued a subsequent related opinion or order on September 13, 2016.