Petition for Writ of Certiorari — Arseles D. Miller, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.

Supreme Court briefMay 31, 2022

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Text

No:

FILED

MAY 3 1 2022

IN THE

SUPREME COURT OF THE UNITED

JUNE TERM, 2022

SUPREmToQUOTh^

Arseles Devon Miller-PETITIONER

vs.

Mark S. Inch, Secretary, Fla. Dept, of Corrs, et al.

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RECEIVED

JUN -8 2022

OFFICE OF THE CLERK

SUPREME COURT, US.

Arseles Devon Miller

7000 HC Kelley Rd.

Orlando, Florida 32831

TELEPHONE: N/A

RECEIVED

JUL 1 7 2025

ffifif.SFJflWLERK

UPREME COURT. US

RECEIVED

MAY 1 3 2025

RECEIVED

JUN 3 0 2025

IcpiCeOFTHECJ-ft

QUESTION(S) PRESENTED

Whether a 2254 application is second or successive if it

challenges a new judgment for purpose of §2244(b).

Whether a new judgment, resulting from resentencing,

triggers or restarts the statute of limitations for

purposes of §2244(d)(1)(A).

Whether a clearly erroneous decision of the court of

appeals denies procedural due process (liberty interest)

under the Fifth or Fourteenth Amendment.

LIST OF PARTIES

[X] All parties appear in the caption of the case on the

cover page.

[ ] All parties do not appear in the caption of the case

on the cover page.

A list of all parL

to the

proceeding in the court whose judgment is the subject of

this petition is as follows:

RELATED CASES

Unknown to Petitioner

TABLE OF CONTENTS

PAGES

OPINIONS BELOW....................................... 8

JURISDICTION......................................... 9

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED..... 10

STATEMENTS OF THE CASE.............................. 11

REASONS FOR GRANTING THE WRIT....................... 14

CONCLUSION.......................................... 31

INDEX TO APPENDICES

APPENDIX A: Eleventh

Opinion la-7a.

Circuit-U.S.

Court

Appeals

APPENDIX B: United States District Court-Opinion lb-4b

APPENDIX C: Florida Sentencing Court's Order lc-2c.

APPENDIX D: Florida Sentencing Court's-Amended Judgment

and Sentence ld-4d.

TABLE OF AUTHORITIES CITED

PAGE #

CASES

Army & Air Force Exchange Service v. Sheehan,

728

456 U.S.

Braen v. PFEIFER OIL TRANSP. CO., 361 U.S. 129

Brown v.

90969

Sec'y,

Dept,

of Corrs.

(11th Cir.

2014)

Burton v. Steward, 549 U.S. 147, 127 S. Ct. 793

LEXIS

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546...17

Colon v. State, 909 So. 2d 484 (Fla. 5th DCA 2005)....16

Esty v. Jones,

(11th Cir. 2015) LEXIS 89155

Ferreira v. Sec'y, Dept, of Corrs., 494 F. 3d 1286 (11th

Cir. 2007)

.......... 27

Goodloe v. Jones (11th Cir. 2018) LEXIS 964

Goodloe v. Sec'y, Dept, of Corrs. 823 F. App'x 801 (11th

Cir. 2020)

Hagley v. State, 140 So. 3d 678 (Fla. 5th DCA 2014)...12

In re

1979)

Riha ’ s

Estate,

369

So.

404

(Fla.

2nd

DCA

Insignares v. Sec'y, Dept, of Corrs., 755 F. 3d 1273 (11th

Cir. 2014)

Ivan Allen Co. v. United States, 422 U.S. 617

JJD Realty, LLC v. Artesa

4th DCA 2020)

Homeowner, 307 So. 3d 57 (Fla

Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788..22

Martinez v. State, 211 So. 3d 989 (Fla. 2017)

Montana v. Kennedy, 366 U.S. 308

Morrisey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593

Mundy v.

190202

Sec'y, Dept, of Corrs. (11th Cir. 2012) LEXIS

....................................... 19

Oregon v. Dept, of Fish and Wildlife v. Klamath Tribe,

473 U.S. 733

Osbourne v. Sec'y, Dept, of Corrs., 968 F. 3d 1261 (11th

Cir. 2020)

Patterson v. Sec'y, Dept, of Corrs., 849 F. 3d 1321 (11th

Cir. 2017) (en banc)

State v. Mancino, 714 So. 2d 429 (Fla. 1998)

Stites v. Sec'y, Dept, of Corrs., 278 F. App'x 933 (11th

Cir. 2008)

...................... 27

Thompson v. State,

(Fla. 2000).

Walker v. Sec'y, Dept, of Corrs.

68951

(11th Cir. 2014) LEXIS

Walker v. Sec'y, Dept, of Corrs.

1898 68

(11th Cir. 2018) LEXIS

Warren v. Inch (11th Cir. 2021) LEXIS 79569

Wells v. Sec'y, Dept, of Corrs., 769 F. App'x 885 (11th

Cir. 2019) ......................................... 20

Wilkinson v. United States, 365 U.S. 399

STATUTES AND RULES

28 U.S.C.S. 2244

Passim

28 U.S.C.S. 2244(b)

28 U.S.C.S. 2244 (d) (1) (A)

28 U.S.C.S. 2254

9, 30

28 U.S.C.S. 2254 (a)

Passim

OTHER

Florida Criminal Procedure Rule 3.800(a)

Passim

Florida Criminal Procedure Rule 3.801

Passim

Florida Statute Chapter 921.161(1)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

The Petitioner (Miller) respectfully petition for a

writ of certiorari to review the judgment of the United

States

Court

Appeals

for

the

Eleventh

Circuit,

affirmed the judgment of the United States District Court

(Florida-Middle division Tampa) in this case.

OPINIONS BELOW

The opinion for the court of appeals

(Appx. A,

la-

7a). unknown reporting or publishing

The opinion for the district court (Appx. B, lb-4b).

unknown reporting or publishing

JURISDICTION

The court of appeals entered to judgment on January

4th,

2022. see

(Appx. A). No petition for rehearing was

timely filed in my case. An extension of time to file

petition for a writ of certiorari was granted to and

including April 1st, 2022 to May 4th, 2022. Again another

extension was filed and granted to and including May 3rd,

2022 to May 30th, 2022 in Application No. 21A570.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254 (1) .

CONSTITUTIONS AND STATUTORY PROVISION INVOLVED

Fifth

Fourteenth

Amendment-procedural

due

process

liberty interest.

28 U.S.C.S. 2244(b)-gatekeeping provision

28 U.S.C.S. 2244(d)(1)(A)-statute of limitations

U.S.C.S.

2254-federal

habeas

prisoners

petition

for

state

STATEMENT OF THECASE

Petitioner

The

habeas

petition

filed his

federal

the United States

District

timely

(Miller)

(2254)

Court (middle district of Florida-Tampa division) in May,

2020; according to AEDPA's statute of limitations (time

clock provision) .

11/21/18,

See

(28 U.S.C.S.

2244 (d) (1) (A) ) .

the State sentencing court granted in part,

Miller's motion

illegal

correct

sentence under R.

3.800(a) and amended the sentence by awarding additional

jail credit to the Petitioner's sentence.

The original

motion was mailed out and placed in the hands of prison

officials for further processing on or about 12/16/12;

the trial court never received the original, so

a copy

was furnished and refiled with the courts on or about

8/17/18. Eventually, the motion was accepted and presumed

as properly and timely filed under R. 3.800, on 12/16/12

according to Florida law, because the motion contained a

date stamp and certificate of service, substantiated that

particular date. See Thompson v. State, 761 So. 2d 324,

326 (Fla. 2000),

("The Florida Supreme Court found that

in order to carry the intent of our decision in Hagg,

henceforth we will presume that

legal document submitted

by an inmate is timely filed if it contains

certificate

of service showing that the pleading was placed in the

for

jail

officials

particular date."))..

Id.

It must be noted, that prior

hands

prison

to the enactment of R.

3.801

mailing

(now governs motion for

correcting jail credit); Florida law recognized improper

jail credit as an illegal sentence under R.

3.800(a).

Under the current R. 3.801 the rule address improper jail

credit as a ministerial act and correction of clerical

errors. See Hagley v. State,

5th

DCA

inherent

2014) ("Florida

power

has

correct

140 So. 3d 678,

long

recognized

clerical

calculation of jail credit.").

errors

See also FN#1

Rules of Criminal Procedure 3.801,

679

(Fla.

court’s

such

("Florida

effectively July 1,

2013, now governs motion for correcting jail credit.").

Id.

Stated plainly in sentencing order, the court stated

the following:

"It

therefore

ORDERED

AND

ADJUDGED that Defendant's "Motion to

Correct Illegal Sentence" is hereby

GRANTED,

PART,

the

extent

Defendant is entitled to 870 days of

jail credit in case 03-CF-003614.

It is further ORDERED that the Clerk

of Court SHALL PREPARE an amended

judgment and sentence to reflect that

Defendant is entitled to 870 days of

jail credit in case 03-CF-003614 and

FORWARD the amended sentence to the

Department of Corrections. See (Appx. C

pg. 2). (emphasis original)

The sentencing court corrected petitioner's sentence

by award of 33 days additional jail credit to his sentence

and ordered the most recent sentence to be forward to

Dept.

Corrs.,

the

superceded

original

judgment/sentence (2005 judgment). This Court should find

that

the

state

court

never

ordered

adjudged

the

amended judgment and sentence to be entered or designated

nunc pro

tunc

judgment

under

Florida

law,

Miller's custody was modified by the new judgment (2018) .

Id. Appx C.

(PROCEEDING BELOW-United States

District Court and Court of AppealsEleventh Circuit.).

Previously

stated,

Petitioner

filed

his

habeas

petition in May, 2020. The Respondent filed a Motion to

Dismiss

(Petition for Lack of Jurisdiction). After the

district judge's ad hoc review of the Respondent's motion

and Miller's response to the motion, the judge ultimately

determined that Petitioner's application is a second or

successive petition and the amended judgment is not or

does

not

qualify anew

for the purpose

§2244.

The

district court has stated the following conclusion the

2018 judgment does not constitute a de novo review:

"In the new petition, Miller contends

that he challenges new amended judgment

entered on November 21, 2018. The state

court

granted

Miller's

motion

correct his sentence in part and awarded

him additional credit for pre-trial

detention. In the amended judgment the

state court corrected the award of jail

credit and imposed Miller's sentences

'[e]ffective' August 1, 2005-the date

of original judgment. Under state law,

the correction of the award of jail

credit is ministerial and the amended

judgment relates back to the original

judgment. The state court did not enter

the amended judgment nunc pro tunc to

the date of original judgment but did

not amend the sentences that authorize

Miller's confinement either." see (Appx

B, pgs 2-3)(emphasis added).

Thenafter, the district court of appeals, summarily

affirmed the district court's findings that the order of

the

state

court

and ensuing amended judgment did not

result in a new judgment for purposes of §2244 and stated

the following:

"Miller

argues

that,

because

the

amended judgment was not entered nunc

pro tunc, it is a new judgment. Although

the State court here did not use the

exact phrase, the amended sentences on

all

three

counts

were

'Effective

8/01/05-the

date

the

original

judgment-and did not change or modify

the sentences that Miller is currently

serving except to credit him for 870

days of jail time rather than the

previous 837. The ordered and amended

judgment merely corrected

clerical

error in Miller's sentence." see (Appx.

A, pg. 6)(emphasis added).

As it now stands, both federal court's opinions are

truly in conflict with a state court's binding decision

(sentencing

order

and amended judgment/sentence) ,

and

such ruling is unsound and contrary to principles of

Florida

law.

previously asserted,

the

state court

never ordered Miller's corrected sentence to be imposed

nunc pro tunc to relate back to the court's 2005 judgments,

so the new judgment should not be comprehended as being

such.

The trial court did order and adjudged Miller’s

motion to correct illegal sentence under R. 3.800(a). So

it is an abuse of discretion for both federal court's to

conclude that the state court did not amend the sentence

that authorize confinement and grossly apply the amended

judgment under R. 3.801, which regards the award of jail

credit

correction

clerical

errors

and

not

correction of an illegal sentence, which authorizes a new

sentence. Thus, this Court should find that both federal

courts opinions infringes the doctrine of federalism.

REASON FOR GRANTING THE PETITION

By all means,

this

the

federal

court of

last

resort, it takes this Court's supervisory power to grant

this petition to settle conflict of the lower tribunal's

decision in light federal principles the United States

Supreme Court has outlined, interpreted, and established

based upon AEDPA's restrictions and statute limitations

provisions

for

demonstrate

how principles

purposes

§2244.

and/or

Petitioner

precedents

will

this

Court are being misapprehended and grossly misapplied,

and the rather harsh impact of the Eleventh Circuit's

decision stands to undermine and corrupt those principles,

while

frustrating

petitioner.

procedural

Moreover,

their

due

process

reasoning

and

the

logics

conflicts with State Court laws and decision to grant a

new

judgment

intracircuit

well

precedents

that

holding

was

conflict

established

with

the

Supreme Court's opinions and principles that has one in

a state of perplexity. Miller looks to this Court with

no other alternative to undoctn injustice of the lower

court and restore procedural due process because this is

the ultimate arbitrator of federal law that can resolve

such conflict and overrule the Eleventh Circuit's abuse

of discretion.

I. ELEVENTH CIRCUIT'S DECISION CLEARLY ERRONEOUS

AND CONFLICT WITH STATE LAW AND IT'S DECISION.

Notably, the court of appeal's decision is in direct

conflict with state court's judgment and well-established

principles that pertains to Florida law.

Eleventh Circuit

did acknowledge as a

Foremost the

fact,

that the

Florida court never labeled or used the phrase nunc pro

tunc

the

amended

judgment.

But

yet

stated,

"the

amended sentence was, effectively imposed nunc pro tunc,

as is specified that the sentences on all three counts

were Effective 8/01/05-date of original judgment".

(Appx A pg.

See

6). Just pointing out another clear error,

the corrected judgment also reflect under the provisions

confinement

Miller's

detention

was

modified

and

resentenced by the court's amended order on 11/21/18,

which is the date that controls and/or authorize Miller's

custody. See (Appx D pg. 2 and pg. 3)

For several reasons,

crucial conflict exist with

the federal court's reasoning under Florida law. First,

in order for a corrected judgment and sentence of a state

court to relate back to it's original judgment, the judge

has to specifically order the imposition of a nunc pro

tunc judgment by means of a sentencing order and the

judgment then would be labeled nunc pro tunc to reflect

the date of initial judgment. See Colon v. State, 909 So.

2d 484,

487

(Fla.

now for then and

5th DCA 2005) (" [n]unc pro tune-means

[when]

legal order or judgment

[is

imposed] nunc pro tunc it refers, not a new or de novo

decision,

but

the

judicial

act

previously

taken,

concerning which the record was absent or defective.").

Id.

(emphasis added); also (Osbourne v. Sec'y, Dept, of

Corrs., 968 F. 3d 1261 (11th Cir. 2020)). Id. at 1266.

So it is illogical for court of appeals to construe

Miller's amended judgment and sentence-as relating back

to original judgment, with out the state court ordering

and imposing an nunc pro tunc judgment and sentence-with

just mere reflection of date of original judgment alone

would also be contrary to Florida law (without "nunc pro

tunc designated-8/1/05").

Secondly,

in Florida,

a court may enter an order

nunc pro tunc to correct the record of an order actually

made, which was either entered incorrectly in the court

records

or not entered at all.

However,

the law also

provides that when the court "wholly omits an order or

wishes to change it, the new order cannot be entered nunc

pro tunc". See (JJD Realty, LLC v. Artesa Homeowner, 307

So. 3d 51 (Fla. 4th DCA 2020) citing In re Riha 's Estate,

369 So. 2d 404,

(Fla. 2nd DCA 1979).). So according

404

to Florida law, the judge never impose Miller's new order

and judgment to be designated nunc pro tunc.

Third, the propriety of labeling a Florida judgment

nunc pro tunc is a matter of state

so when the

law,

federal court opine "the amended sentence was, effective

imposed nunc pro tunc",

the Eleventh Circuit infringes

the doctrine of comity because the state court made a

binding

decision

sentence

nunc

not

pro

tunc

impose

the

judgment

the

judgment

new

and

afforded

deference in a federal court-whether the imposition of

the amended sentence was improper,

usage

nunc

pro

proper,

designation

tunc

or correct

within

(Osbourne Supra,

province of a state court. See

the

Id. at

1267-FN#4) citing Coleman v Thompson, 501 U.S. 722, 731,

111 S. Ct. 2546 (1991).).

Another crucial conflict that war against a binding

state

court

decision

that

the

Eleventh

Circuit

adjudicated and flagrantly applied Petitioner's amended

judgment and sentence

(2018)

as a mere

correction of

clerical errors under Rule 3.801, instead of an illegal

sentence which the sentencing judge made correction under

Rule 3.800(a)

notably pursuant to the sentencing order

for the purpose of §2244. see (Appx. C).

Herein, the lower tribunal did concede to the fact,

the

state

court

motion

Petitioner's

considered

properly filed in 2012 and under Rule 3.800(a) because

Rule 3.801 did not yet exist in 2012. see

FN#

1).

decision

the federal circuit ultimate

Consequently,

changed to

(Appx A, pg.

contrary when concluded,

the

order and amended judgment merely corrected

the

clerical

error in Miller's sentence. Nevertheless, clerical errors

are associated with rule 3.801, which now governs motion

award

conclusion

additional

credit.

jail

that Miller's

order

support

it's

controlled by rule

3.801 and the state court's award was a ministerial act,

the federal court points to Hagley supra. Id.; also (Appx.

A pg. 6); and also Goodloe v. Sec’y, Dept, of Corrs., 823

F. App'x 801,

803

(11th Cir. 2020) ("Here, the 2015 jail

credit

did

not

order,

vacate

Goodloe's

sentence

and

replace it with a new one. By its terms, the order merely

corrected the original sentence by addressing a clerical

error in Goodloe ’s credit time.")). citing Haglely supra,.

Id. (emphasis added) . In Goodloe, it was decided that the

State court's order granted jail credit under rule 3.801,

correcting by the term of the rules clerical errors.. (Id.

at FN# 4).

By the holdings in the Florida Supreme Court, the

Mancino Court has setforth before the enactment of rule

3.801,

"Failure to grant proper jail

served is an illegal

3.800

since

mandates

Fla.

that

sentence under Fla.

Stat.

Chap

sentence

921.161(1)

may

for time

credit

Crim.

affirmatively

imposed

without

crediting a defendant with jail time already served. See

(State v. Mancino,

714 So. 2d 429,

432-33

(Fla. 1998);

also Martinez v. State, 211 So. 3d 989 Fla. 2017) citing

Mancino supra,

.Id. at 992).

The Eleventh Circuit and District Courts within have

long

recognized

state

court's

granting

motion

correct illegal sentence and amending sentence to award

additional

operates

jail,

and

constitute

new

judgment for purpose of section 2244. see Esty v. Jones,

LEXIS 89155 (11th Cir. 2015) (holding that petitioner was

entitled

limitation

triggering

later

due

state

date

court's

statute

granting

motion

correct illegal sentence and amending sentence to award

additional

added).;

jail

also

Id.

credit".).

(Brown v.

90969 (11th Cir. 2014)

Sec’y,

pg.

(emphasis

Dep’t of Corrs.,

LEXIS

Id. at pgs. 4-5; Walker v. Sec’y,

Dep’t of Corrs., LEXIS 68951 (11th Cir. 2014) Id. at pg.

2; Goodloe v. Jones, LEXIS 964 (11th Cir. 2018) Id. at pg.

8; Mundy v. Sec’y, Dep’t. of Corrs., LEXIS 190202

(11th

Cir. 2021) Id. at pg. 2)

whatever

extent,

the

Eleventh

Circuit

has

outlined a conclusion that distinguishes motions granted

under

Rule

3.801

and

3.800.

that

operates

new

judgment. As such,

the Wells court was faced with the

facts as in 2017,

Wells moved the state trial court to

amend its judgment to credit him for 57 additional days

under Rule 3.801,

however,

the amended judgment stated

his sentence was amended for additional credit and the

trial judge wrote "nunc pro tunc 8-16-1994". see (Wells

Sec'y, Dept,

Cir. 2019)).

of Corrs.,

769 F. App'x 885,

886

(11th

(emphasis added). The Eleventh Circuit has

stated the following:

"Wells liken his amended judgment to

the new judgment the prisoner received

in Insignares, but that precedent is

distinguishable.

The

prisoner

Insignares filed a motion to correct an

illegal sentence under R. Fla. Crim. P.

3.800 and succeeded in having his

sentence for attempted murder reduced

from 20 yrs to 10 yrs, which resulted

the

State

Court

entering

"corrected sentence and new judgment.

In contrast, Wells success in having

his jail credit corrected under R.

3.801 did not create a new judgment.

Wells did not receive "a new prison

sentence... [that replaced] [his 1994]

sentence, like the prisoner Insignares

and in Magwood, to entitle him to

another round of habeas corpus review."

Id. at 888 (emphasis original).

This

reasoning

similar

the

Petitioner's

situation, Miller filed a motion to correct an illegal

sentence

(R.

3.800(a))

and

succeeded

having

his

sentence-corrected with the award of jail credit, which

resulted

the

State

court

entering

corrected

sentence and new judgment without imposition of a nunc

pro tunc judgment.

Therefore, this Court should conclude that the court

of appeals finding are clearly erroneous and abuse of

discretion,

whereas,

the

Florida

federal

court

court's

has

refuse

judgment-flagrantly

misapplied and misconceived state laws and principles.

Such conflict thwarts procedural due process under

§2244 (d) (1) (A)

and

§2254 (a) .

evident

that

Petitioner's amended judgment (2018) not only constitutes

a new judgment, but also authorize Miller's confinement

(most recent sentence). The Walker Court has reasonably

determined the

following that's analogous

to Miller's

amended judgment; to the timeliness of a federal habeas

petition filed six years after the original judgment was

entered but within one year of the State court's amending

the sentence to award additional jail credit: "The state

court

entered

the

2011

amendment

because

the

2005

sentence failed to give Mr. Walker credit for time served.

In Florida,

sentence that fails to give credit for time

served

sentence.

illegal

When

sentence

substantively corrected, the defendant is, from that day

forward, in custody on the corrected sentence, not on the

original sentence.

2011

order

So Walker is now in custody on the

setting

out

the

only

legal

sentence;

Walker is not in custody on the 2005 orde

Mr.

out

the illegal (and now vacated) sentence." (Id. at pg. 18Esty supra).

CLEARLY

II.

ELEVENTH

CIRCUIT'S

DECISION

ERRONEOUS AND CONFLICT ESTABLISHED PRINCIPLES OF

UNITED STATES SUPREME COURT-FEDERAL LAW

previously

established,

Miller's

judgment (2018) constitutes a new judgment

amended

and reflect

the most recent sentence that authorizes his detention

as a prisoner for purposes of §2244 and §2254(a).

The

federal court's decision is clearly erroneous and abuse

of discretion when determined Miller is still confined

pursuant to the 2005 judgment (illegal sentence that was

corrected in 2018, now vacated)

and his current habeas

petition (May, 2020) challenges the same initial judgment.

See (Appx A, pgs. 6-7).

The Eleventh Circuit has failed or refused to follow

firm established principles of the United States (U.S.)

Supreme

Court

that

gives

hindsight

federal

jurisprudence of AEDPA's gatekeeping provisions and time

clock for statute of limitations. Based on this analysis,

the U.S.

Supreme Court in Magwood,

"AEDPA"

text

commands

has outlined,

that

straight-forward

rule:

"Where... there is a new judgment intervening between the

two

habeas

petitions,

application

challenging

the

resulting new judgment is not second or success." see

(Magwood v. Patterson, 561 U.S. 320, 341-42, 130 S. Ct.

2788, quoting Burton v. Steward, 549 U.S. 147, 156

127

S. Ct. 793.). Whether a petition is second or successive

depends on the judgment challenge. Id. at 332-33 (Magwood

supra). The conviction and sentence together make up the

(Id. at 156 (Burton supra)).

criminal judgment.

We look to precedents of the U.S. Supreme Court in

federal

court

guide

to what

constitutes

a new

judgment. The Supreme Court in Magwood did address this

issue.

After

being

sentence

death

for murder

and

exhausting postconviction relief in the Alabama state

courts, Magwood filed a federal 2254 petition challenging

both his conviction and sentence.

Id.

at 323

(Magwood

supra). Magwood's 2254 petition was conditionally granted

with

Magwood

that

directions

either

released

resentenced. Id. The state trial court subs equently held

full

resentencing,

sentence.

but

Id. at 323,

ultimately

imposed the same

326. After again ch allenging his

new death sentence in state court, Magwood filed another

2254

petition

raising

fair

warning

claim

and

ineffective assistance of counsel claim, both of which

directly related to the resentencing proceedings. Id. at

327-28. The district court sua sponte addressed whether

Magwood's present2254 petition was second or successive

for purposes of 2244, concluded it was not, and proceeded

to address the merits of Magwood's claims

Id. at 328.

the

Eleventh Circuit reversed in part the

district courts'

ruling as to the success ive nature of

On appeal,

the

petition,

concluding

that

Magwood's

fair-warning

claim was a prohibited second or successive claim under

2244 because it "challenged the trail court's reliance

on the same (allegedly improper) aggravating factor that

the trial court had relied upon for Magwood’s original

sentence."

Id.

329.

reversing

the

Eleventh

Circuit's decision, the Supreme Court explained that the

phrase

"second

successive"

2244 b)

"must

interpreted with respect to the judgment challenged." Id.

332-33.

Accordingly,

the Magwood Court concluded that

because a new, intervening judgment was entered following

the

resentencing,

Magwood’s

new

2254

petition

which

challenged "new errors" made at the resentencing was not

"second or successive for purposes of 2244 (b) .

Id.

339, 342. In reaching this conclusion, the Supreme Court

left open the question of whether a petitioner could

challenge the original,

undisturb conviction in a new

2254 petition where the State imposed only a new sentence.

Id. at 342.

Subsequently,

considered

the

the Eleventh Circuit m Insignares,

question

left

open

Magwood as

whether a habeas petition is "second or successive" for

purposes

conviction

2244

where

following

the

challenges

imposition

undisturbed

only

new

sentence. See {Insignares v. Sec'y, Dep't. Of Corrs., 755

F. 3d 1273, 1277-78 (11th Cir. 2014) . Specifically, after

pursing federal habeas relief,

Insignares filed a Rule

3.800 motion to correct his sentence.

State court granted the motion,

minimum

imprisonment

term

for

Id.

at 177.

The

reduced the mandatory

one

his

counts

conviction from 20 to 10 yrs., and "entered a corrected

sentence and new judgment." Id. Insignares then filed a

new 2254 petition. Id. Although the State did not contest

that a new judgment was entered within the meaning of

Magwood for purposes of 2244, it argued that Insignares’s

new petition

because

was

nevertheless

challenged

the

"second

undisturbed

successive"

conviction

and

raised the same issues as his first 2254 petition. Id.

1278.

The

court of appeals concluded that because

there is only one judgment, which is "comprised of both

the sentence and conviction," a habeas petition is not

second or successive where it follows a new judgment,

"regardless of whether its claims challenge the sentence

or the underlying conviction." Id. at 1281.

Importantly,

not

action

every

constitutes

example,

federal precedents have outlined that

that

Patterson

sentence

necessarily

for purposes of 2244.

a new judgment

the

alters

Court

emphasized

that

For

"the

judgment that matters for purposes of section 2244 is the

judgment authorizing the petitioner's confinement.

See

(Patterson v. Sec'y, Dept, of Corrs., 849 F. 3d at 1325

(en banc)(quoting Magwood supra,

at 332)). The Federal

court then reasoned that the state court's grant of a Fla

R. 3.800 motion to correct sentence and issuance of an

order

removing

sentencing

requirement

that

the

defendant undergo chemical castration did not constitute

a new judgment for purposes of 2244. Id. at 1325-28. In

reaching this

conclusion,

the

federal court explained

that Patterson's circumstances were distinguishable from

Magwood and Insignares because in Patterson’s case the

state trial court did not issue a new prison sentence.

Id. at 1325-26. Rather, the state court merely issued an

order barring the imposition of the chemical castration

condition, "but it did not otherwise address the term of

Patterson's imprisonment."

Magwood

unlike

and

Id.

1326.

Insignares,

Consequently,

there

was

intervening judgment authorizing Patterson's confinement,

and he was still in custody pursuant to his original 1998

judgment. Id. In so doing, the Eleventh Circuit rejected

the argument that the test for whether there is a new

judgment

for purposes

prisoner's

sentence

of 2244

should be whether the

"has materially changed."

Id.

1326-27. They also rejected the argument that "any order

that alters a sentence necessarily constitutes a new

judgment," noting that state court's often make many

"ameliorative

changes

sentence...

a matter of

course, such as the removal of a fine or a restitution

obligation," and to say such action results in a new

judgment every time for purposes of federal habeas review

would directly contradict the central purpose of the

AEDPA:

"to ensure finality of state and federal court

judgment

criminal

cases."

Id.

1326-27.

Again

pointing out but adding to these principles, the Eleventh

Circuit

has

held

that

Court's

Florida

corrected

sentence ["imposed"] nunc pro tunc, does not qualify as

a new judgment because the nunc pro tunc ["designation"]

relates back to the original judgment.

See

(Warren v.

Inch, LEXIS 79569 (11th Cir. 2021), pg. 13). Id. (emphasis

added).

With these principles in mind, it is settled that a

corrected judgment imposed nunc pro tunc or a corrected

judgment that address sentencing errors for requirements

and conditions but otherwise do not effect the term of

confinement,

does

not

qualify as

new

judgment

for

purposes of section 2244 and 2254.

Therefore this Court should find that Petitioner's

corrected

judgment

and

sentence

operates

new

judgment and comports with the reasoning in Magwood; and

the Eleventh Circuit's decision is an abuse of discretion

(clearly wrong) and conflicts with the Magwood principle.

The

Magwood

precedent

compels

the

conclusion

that

Miller's new judgment (2018) intervened between his first

habeas petition

(2008),

so the present habeas petition

(2020) is the resulting new judgment and consistent with

this Court's opinion, that a habeas petition challenges

a new judgment is not deemed second or successive.

Also, the same erroneous decision conflicts with U.S.

Supreme Court's interpretations and principles (AEDPA's

statute of limitations begins to run from the date both

the conviction and the sentence the petitioner is serving,

becomes final)

in Burton supra.

Id.

at 156-57. By the

holding in Burton, the Eleventh Circuit failed or refused

to apply what they call in the federal lower tribunal-

the

Ferreira

{Ferreira v.

1292-93

mandate-to

Miller's

new

of Corrs.,

Sec 'y, Dept',

judgment.

494 F.

See

3d 1286,

(11th Cir. 2007)); also {Walker v. Sec'y Dep't.

of Corrs.,

LEXIS 189868

(11th Cir.

2018) ("In Ferreira,

the Eleventh Circuit concluded that "AEDPA"'s statute of

limitations

begins

run

from

the

date

both

the

conviction and the sentence the petitioner is serving at

the

time

files

his

application become

judgment to which section 2254 (a)

final.

The

refers is underlying

conviction and most recent sentence that authorizes the

petitioner's

current

detention.

where

Thus,

resentencing results in a new judgment, the new judgment

[restarts] the statute of limitations, and [it is error]

for

district

court

[fail]

calculate

the

limitations period from the date of the resentencing

judgment as mandate by Ferreira. The Eleventh Circuit has

reaffirmed the holding in Ferreira, concluding that even

when a resentencing does not alter a habeas petitioner's

original

convictions,

purposes

convictions

the

§2244(d)(1)(A),

and

for

the

comprises

both

the

Id.

5.;

also

amended

sentences.")).

judgment,

pg.

(Stites v. Sec’y, Dep't. of Corrs, 278 F. App'x 933 (11th

Cir. 2008)("holding that district court [erred] when it

calculated start of limitations period based on date

state appellate court originally affirmed petitioner's

convictions; holding that statute of limitations ran from

date petitioner's [modified] sentence became final.). Id.

(emphasis added)

Thus,

this

Court

should

find

that

the

Eleventh

Circuit

failed

refused

start

the

statute

limitations period from the date of Petitioner's modified

sentence

final

become

the

because

provision

the

confinement demonstrates that the confinement was revised

due to the amended order on 11/21/18, which that sentence

became final on 2/21/19 (this is the date that controls

the

limitation

conflicts

with

period);

this

clear

interpretation

Court's

error

and

Burton

(supra). See (Appx D pg. 2).

Stating again,

conflicts

and

setforth

the court of appeals harsh decision

contrary

Burton

with

supra

and

this

Court's

Magwood

opinions

supra,

which

violates Petitioner's procedural due process rights under

the Fifth or Fourteenth Amendment; condemns him to suffer

a grievous

loss

under

liberty interest.

"Whether any

procedural protections are due depends on the extent to

which an individual will be condemned to suffer grievous

loss." see

(Morrissey v. Brewer,

92 S. Ct. 2593.).

408 U.S.

471,

481-82,

Id. at HN# 8 also. "Consideration of

what procedure due process may require under any given

set of circumstances must begin with a determination of

the precise nature of the government function involved

as well as of the private interest that has been affected

by governmental action." Id. at HN# 11.

Just as a reminder, the U.S. Supreme Court history

has granted certiorari review where the court of appeals

decisions and/or rulings have been unduly harsh and stand

to corrupt statutory principles.

misconceived,

misapprehended,

this

opinions,

Court's

Also,

and

when they have

grossly

interpretations,

misapplied

and precedent

authority. Moreover, these are the analogous reasons and

conflicts

that

appear

the

instant

certiorari

support granting review to correct manifest injustice.

See the following authorities of the U.S. Supreme Court

for granted review:

It would be considered unduly harsh impact ruling of

the Eleventh Circuit's opinion when failed or refused to

recognized Miller's amended judgment and sentence as a

new

judgment

Kennedy,

for purposes

366 U.S. 308,

§2244.

see

{Montana

309).; Ivan Allen Co. v.

United

States,

422

claimed

conflict

U.S.

617,

623-24

principle

opinion that had been

granted on

("Certiorari

with

district

court

summarily affirmed by court of

appeals.") .; Oregon Dept, of Fish and Wildlife v. Klamath

Tribe,

473

U.S.

principle.").;

733,

764

("Appeared

Air

Force

Army

conflict

Service

Exchange

Sheehan, 456 U.S. 728, 733 ("Because this ruling appeared

conflict

our

with

precedents,

grant

certiorari.").; Wilkinson v. United States, 365 U.S. 399,

401

("We grant certiorari to consider the petitioner's

claim the Court of Appeals had misconceived the meaning

of the

Barenblatt decision.").;

Braen

PFEIFER OIL

TRANSP. CO., 361 U.S. 129, 130 ("We granted the petition

for certiorari because that decision seemed to be out of

line with the authorities.").; The results reached below

is unduly harsh in its impact. Id. at 309-Montana supra.

CONCLUSION

The petition

for

a writ

certiorari

granted.

Arseles Devon Miller #530846

Executed on <3/^ day of

2022.

should be

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