[DO NOT PUBLISH]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 defendant2 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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