KIRK v. DIXON

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION ROOSEVELT KIRK, Petitioner, v. Case No. 5:23cv105-TKW-HTC RICKY DIXON, Respondent. __________________________/ ORDER This case is before the Court based on the magistrate judge’s Report and Recommendation (Doc. 10). No objections were filed. Upon due consideration of the Report and Recommendation and the case file, the Court agrees with the magistrate judge’s determination that Petitioner’s amended judgment is not a “new judgment” for habeas purposes, see Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 (11th Cir. 2020), and, thus, his §2254 petition is “successive” and must be dismissed because he did not receive permission from the Eleventh Circuit to file it. Moreover, the Court sees nothing inequitable about this disposition because the Florida Supreme Court decision that was the basis for Petitioner’s re-sentencing hearing was subsequently overruled. See State v. Michel, 257 So. 3d 3 (Fla. 2018) (holding, contrary to Atwell v. State, 197 So. 3d 1040 (Fla. 2016), that juvenile offender’s life-with-parole sentence for murder does not violate the Eighth Amendment); Franklin v. State, 258 So. 3d 1239 (Fla. 2018) (same for Page 2 of 2 juvenile offender’s 1,000-year-with-parole sentence for non-homicide offenses). Indeed, but for the Florida Supreme Court’s now-overruled (and likely wrong-fromthe-outset) decision in Atwell, Petitioner would have never received a resentencing hearing or an amended (but materially unchanged) sentence. Accordingly, it is ORDERED that: 1. The magistrate judge’s Report and Recommendation is adopted and incorporated by reference in this Order. 2. The petition under 28 U.S.C. §2254 , challenging the resentencing in State v. Kirk, Bay County Circuit Court Case No. 1983 CF 988 is DISMISSED WITHOUT PREJUDICE as an unauthorized successive petition. 3. The Clerk is directed to enter judgment in accordance with this Order and close the file. DONE and ORDERED this 23rd day of October, 2023. □□ Wood T.KENT WETHERELL,I UNITED STATES DISTRICT JUDGE Case No. 5:23cv105-TKW-HTC