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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10747
Non-Argument Calendar
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D.C. Docket No. 6:15-cv-00093-GKS-DCI
ARCHIE L. JENKINS,
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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(October 23, 2017)
Before TJOFLAT, MARCUS, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Archie Jenkins appeals the District Court’s denial of his
28 U.S.C. § 2254
petition for a writ of habeas corpus. Jenkins originally pleaded guilty to attempted
burglary and grand theft and, pursuant to that plea agreement, was sentenced to
concurrent fifteen and five-year terms of imprisonment. He then had his plea and
sentence vacated at his behest. Thereafter, he entered into another plea agreement
and was sentenced to concurrent four-year terms without credit for time served.
The District Court granted a certificate of appealability (“COA”) as to
whether the state trial court violated his right against double jeopardy. Relying on
North Carolina v. Pearce,
395 U.S. 711,
89 S. Ct. 2072 (1969), Jenkins argues that
his sentence violated the Double Jeopardy Clause because he did not receive credit
for time served on the original conviction. He also argues that he never intended to
waive his credit for time served, and that any waiver resulted from ineffective
assistance of counsel. We find the former argument unavailing. We need not
reach the latter.
I.
We review de novo a district court’s denial of a habeas petition. Ward v.
Hall,
592 F.3d 1144, 1155 (11th Cir. 2010). We review the district court’s
findings of fact for clear error. Gilliam v. Sec’y for Dep’t of Corr.,
480 F.3d 1027,
1032 (11th Cir. 2007). Questions of law and mixed questions of law and fact
receive de novo review.
Id.
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Our appellate review is limited, however, to the issue or issues specified in
the COA. Murray v. United States,
145 F.3d 1249, 1250–51 (1998). The only way
a petitioner may raise on appeal issues outside those specified in the COA is to
have this Court expand the COA to include those issues. Tompkins v. Moore,
193
F.3d 1327, 1332 (1999). “An application to expand the [COA] must be filed
promptly, well before the opening brief is due.”
Id. The arguments in a brief that
address issues not covered in the COA “will not be considered as a timely
application for expansion of the certificate; those issues simply will not be
reviewed.”
Id.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
federal courts shall not grant habeas relief to claims that state courts adjudicated on
the merits unless the state court decision (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court,” or (2) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”
28 U.S.C. §
2254(d)(1), (2). A state court’s decision is “contrary to” federal law if “the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently than th[e] Court on a
set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412–
13,
120 S. Ct. 1495, 1523 (2000).
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A state court’s decision is an “unreasonable application” of federal law if the
state court identifies the correct legal standard but unreasonably applies it to the
facts of the petitioner’s case. Williams,
529 U.S. at 413,
120 S. Ct. at 1523. Even
if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was “objectively unreasonable.”
Parker v. Head,
244 F.3d 831, 836 (11th Cir. 2001). Thus, a state court’s
determination that a claim lacks merit precludes habeas relief unless “no
possibility” exists that “fairminded jurists could disagree” that the decision
conflicts with Supreme Court precedent. Harrington v. Richter,
562 U.S. 86, 102,
131 S. Ct. 770, 787 (2011).
A state court’s factual determinations are presumed correct, and the
petitioner retains the burden of rebutting that presumption by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1); Parker, 244 F.3d at 835–36. We will not
question a state court’s application of state law in federal habeas corpus review.
See Davis v. Jones,
506 F.3d 1325, 1332 (11th Cir. 2007).
II.
The Double Jeopardy Clause “provides that no person shall ‘be subject for
the same offence to be twice put in jeopardy of life or limb’” Brown v. Ohio,
432
U.S. 161, 164,
97 S. Ct. 2221, 2225 (1977) (quoting U.S. Const. amend. V.). The
Clause protects against (1) successive prosecution for the same offense after
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acquittal; (2) successive prosecution for the same offense after conviction; and (3)
multiple punishments for the same offense. Pearce,
395 U.S. at 711,
89 S. Ct. at
2071. 1 This appeal concerns the last protection.
In Pearce, the defendant 2 pleaded guilty to four charges of burglary and
received a ten-year prison term.
395 U.S. at 714–16,
89 S. Ct. at 2075–76. His
convictions were later vacated based on ineffective assistance of counsel.
Id.
After retrial, he was convicted and sentenced to a 25-year prison term.
Id. He then
brought a federal habeas proceeding alleging, inter alia, that the state trial court
erred when it failed to give him credit for time served on his original sentence.
Id.
The Supreme Court agreed, holding that “the constitutional guarantee against
multiple punishments for the same offense absolutely requires that punishment
already exacted must be fully ‘credited’ in imposing sentence upon a new
conviction for the same offense.”
Id. at 718–19.
But the Supreme Court has held that, in certain situations, a defendant may
waive a double jeopardy challenge as part of a plea agreement. Ricketts v.
Adamson,
483 U.S. 1, 9–10,
107 S. Ct. 2680, 2685–86 (1987). The defendant in
Ricketts entered a plea agreement specifying that, if he refused to testify, the
1
The prohibitions of the Double Jeopardy Clause apply to the States via the Fourteenth
Amendment’s Due Process Clause. Benton v. Maryland,
395 U.S. 784, 794,
89 S. Ct. 2056,
2062 (1969).
2
Pearce involved two defendant-respondents, but only one, defendant Rice, is applicable
to the issue in this case. See 395 U.S. at 713–14, 89 S. Ct. at 2074–75. All references therefore
refer to him only, and not to the other Pearce respondent.
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original charges may be reinstated, and the parties returned to the status quo ante.
Id. at 3, 9. When he refused to testify the prosecution reinstated the original,
harsher, charge pursuant to which he was tried, convicted, and sentenced. Id. at 5–
7. The Supreme Court held that the defendant had waived any double jeopardy
defense, reasoning that a “[plea] agreement specifying that charges may be
reinstated given certain circumstances is, at least under the provisions of this plea
agreement, precisely equivalent to an agreement waiving a double jeopardy
defense.” Id. at 9–10 (emphasis original). The Supreme Court did not find it
significant that double jeopardy was not expressly waived in the plea agreement.
Id. at 9. Breaching the agreement returned the defendant to the status quo, at
which point he had “no double jeopardy defense to waive.” Id. at 10 (emphasis
original); see also Dermota v. United States,
895 F.2d 1324, 1325–26 (11th Cir.
1990) (holding that defendant waived double jeopardy objection to multiple
punishments for the same offense by pleading guilty to separate offenses “freely,
voluntarily, and accompanied by his attorney”), cert. denied,
489 U.S. 837,
111 S.
Ct. 107 (1990).
Here, the plea agreement explicitly provided that Jenkins would not receive
credit for time served. 3 Jenkins represented that he had read that agreement,
3
Under Florida law, credit for time served can be waived as part of a plea agreement, as
long as the waiver is clearly shown on the record. Hines v. State,
906 So. 2d 1137, 1138 (Fla. 3d
DCA 2005); Render v. State,
802 So. 2d 512, 513 (Fla. 3d DCA 2001).
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discussed it with his attorney, and understood it. He affirmed that his attorney
answered any and all questions he had regarding the agreement, and that no one
had coerced or threatened him into entering it. At his plea hearing, both his
attorney and the Court indicated that Jenkins was not entitled to credit for time
served; Jenkins did not protest nor express any disagreement. Thus, Jenkins
knowingly, “freely, voluntarily,” and with the aid of counsel waived any right to
credit for time served, and by extension his right against double jeopardy. See
Ricketts,
483 U.S. at 9–10; Dermota,
895 F.2d at 1325–26. The Pearce defendant
entered no such plea, but was in fact re-tried, convicted, and re-sentenced. 395
U.S. at 714–18.
Under these circumstances, we cannot conclude that the state court’s denial
of this claim was contrary to, or an unreasonable application of, clearly established
federal law. See Ward,
592 F.3d at 1155;
28 U.S.C. § 2254(d)(1), (2). The Double
Jeopardy Clause “does not relieve” Jenkins “from the consequences of his
voluntary choice.” United States v. Scott,
437 U.S. 82, 99,
98 S. Ct. 2187, 2198
(1978). The facts here and those in Pearce are materially distinguishable. In light
of the record, we cannot say the state court’s conclusion—that Jenkins voluntarily
waived his right to credit for time served—was based on an unreasonable
determination of the facts.
28 U.S.C. § 2254(e)(1); Parker, 244 F.3d at 835–36.
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Finally, we decline to address Jenkins’s argument that his counsel was
ineffective for failing to advise him that he would not receive credit for time
served. This issue is outside the scope of the COA granted by the District Court.
See Murray,
145 F.3d at 1250–51. To the extent Jenkins sought to expand that
COA, he failed to promptly file an application before filing his opening brief. See
Tompkins,
193 F.3d at 1332.
AFFIRMED.
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