                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                APR 13, 2011
                               No. 10-13289                      JOHN LEY
                                                                   CLERK
                           Non-Argument Calendar
                         ________________________

                    D. C. Docket No. 1:04-cv-03467-WSD

DAVID REEDMAN,


                                                          Petitioner - Appellant,

                                    versus

COMMISSIONER, GEORGIA DEPARTMENT
OF CORRECTIONS,

                                                         Respondent - Appellee.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (April 13, 2011)

Before CARNES, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

     David Reedman, a Georgia state prisoner proceeding pro se, appeals the
denial of his federal habeas petition under 28 U.S.C. § 2254. The district court

granted Reedman a certificate of appealability on one issue:

      [W]hether the application of Renico v. Lett, No. 09-338, 130 S. Ct.
      1855 (May 3, 2010), to the facts of Petitioner’s case requires a finding
      that the Georgia Appellate Court, in evaluating the trial judge’s
      decision to declare a mistrial, did not unreasonably apply clearly
      established federal law as determined by the Supreme Court and that,
      accordingly, habeas corpus relief is not available to Petitioner on the
      ground that his right to be free from double jeopardy was violated.

This Court denied Reedman’s motion to expand the COA. Our “review is limited

to the issues specified in the COA.” Murray v. United States, 145 F.3d 1249, 1251

(11th Cir. 1998).

      Reedman contends that the state trial court erred by declaring a mistrial on

one count at his first trial. During deliberations the jury asked the trial court to

delay the lunch break because it was close to reaching a verdict. The trial court

granted that request but later released the jury for lunch when a verdict had not yet

been reached. After returning from lunch, the jury continued deliberations for

almost an hour and then sent to the court a note asking what it should do if it could

agree on only two of the three counts charged. The court declared a mistrial on the

one count on which the jury was deadlocked and entered judgment on the jury’s

guilty verdict on the other two counts. Reedman was later tried before a new jury

and convicted of the one count on which the original jury could not agree.



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Reedman argues that the jury’s note was “ambiguous” and that the trial court

should have asked the jury about the meaning of it. He contends that his rights

under the Double Jeopardy Clause were violated.

      “We review de novo the district court’s denial of habeas relief under 28

U.S.C. § 2254.” Gamble v. Sec’y, Fla. Dep’t of Corr., 450 F.3d 1245, 1247 (11th

Cir. 2006). In 1996 AEDPA “modified a federal habeas court’s role in reviewing

state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure

that state-court convictions are given effect to the extent possible under law.” Bell

v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 1849 (2002). When a state court has

already adjudicated a claim on the merits, a federal court may grant a writ of

habeas corpus only if the decision of the state court (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 [s]tate court

proceeding.” 28 U.S.C. § 2254(d)(1), (2).

      “A state court decision is contrary to clearly established federal law if it

applies a rule that contradicts the governing law set forth in Supreme Court cases

or confronts facts that are materially indistinguishable from a relevant Supreme

Court precedent and arrives at a result opposite to the Court’s.” Allen v. Secretary,



                                           3
Florida Dept. of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) (quotation marks

omitted). “A state court decision involves an unreasonable application of clearly

established federal law when it identifies the correct legal rule from Supreme Court

case law but unreasonably applies that rule to the facts of the petitioner’s case.” Id.

(quotation marks omitted). A state court’s factual determinations are presumed

correct unless the petitioner presents clear and convincing evidence to the contrary.

28 U.S.C. § 2254(e)(1).

      In United States v. Perez, 22 U.S. (9 Wheat) 579 (1824), the Supreme Court

held that when a trial court discharges a jury because the jury cannot reach a

verdict, the Double Jeopardy Clause does not bar a new trial for the defendant

before a new jury. 22 U.S. at 579–80. Trial courts may declare a mistrial

“whenever, in their opinion, taking all the circumstances into consideration, there

is a manifest necessity” for doing so. Id. at 580. “The trial judge’s decision to

declare a mistrial when he considers the jury deadlocked is . . . accorded great

deference by a reviewing court.” Arizona v. Washington, 434 U.S. 497, 510, 98

S.Ct. 824, 832(1978).

      The Supreme Court has refused to apply a “rigid formula” when reviewing a

trial court’s decision about whether a jury deadlock warrants a mistrial. Wade v.

Hunter, 336 U.S. 684, 690-91, 69 S.Ct. 834 (1949) (explaining that the guiding

principles of the Perez decision “command courts in considering whether a trial

                                           4
should be terminated without judgment to take all circumstances into account and

thereby forbid the mechanical application of an abstract formula”) (quotation

marks omitted). More recently the Court explained:

      We have also explicitly held that a trial judge declaring a mistrial is
      not required to make explicit findings of manifest necessity nor to
      articulate on the record all the factors which informed the deliberate
      exercise of his discretion. And we have never required a trial judge,
      before declaring a mistrial based on jury deadlock, to force the jury to
      deliberate for a minimum period of time, to question the jurors
      individually, to consult with (or obtain the consent of) either the
      prosecutor or defense counsel, to issue a supplemental jury
      instruction, or to consider any other means of breaking the impasse.

Renico v. Lett, 559 U.S. __, 130 S.Ct. 1855, 1863–64 (2010) (citation and

quotation marks omitted).

      Reedman basically concedes that Renico resolves the matter, and his brief to

this Court merely rants about the judicial system and judges. As judges, however,

we apply the law. And the Supreme Court has clearly established that when a

judge discharges a jury on the grounds that the jury cannot reach a verdict, the

Double Jeopardy Clause does not bar a new trial. Further, the trial court is

accorded great deference and there is no “rigid formula” that it must follow when

deciding whether a jury deadlock warrants a mistrial. The state trial court was not

required to ask questions about the jury’s note, force the jury to deliberate longer,

consult with the parties, or issue an additional jury charge before declaring a



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mistrial based on jury deadlock. See Renico, 559 U.S. __, 130 S.Ct. at 1864.

There was a reasonable basis for the trial court to conclude that the jury could not

reach a verdict on one of the three counts and that further deliberations on that

count would be useless. The state appellate court’s decision, holding that there

was no double jeopardy error, was neither contrary to nor an unreasonable

application of clearly established federal law as determined by the Supreme Court.

      AFFIRMED.




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