           Case: 17-10747   Date Filed: 10/23/2017   Page: 1 of 8


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      __________________________

                             No. 17-10747
                         Non-Argument Calendar
                      __________________________

                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.

                      __________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     __________________________

                            (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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