FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 25, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11686

Non-Argument Calendar

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D. C. Docket No. 04-02408-CV-T-27TGW

KENNETH MEYER FORTNER,

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

_________________________

(February 25, 2009)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Kenneth Meyer Fortner, a Florida state prisoner proceeding pro se, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, claiming

that his convictions violated double jeopardy principles. We have granted
Fortner’s motion for a certificate of appealability on the following issue only:

“Whether [Fortner’s] convictions and sentences on two counts of conspiracy to

traffic in cocaine violated the Double Jeopardy Clause,” pursuant to Braverman v.

United States, 317 U.S. 49 (1942). On appeal, Fortner argues that: (1) he was

entitled to a decision by a three-judge, and not a two-judge, panel concerning his

request to expand the COA; and (2) his two conspiracy convictions violated the

Double Jeopardy Clause. After careful review, we affirm.

We review de novo a district court’s denial of a § 2254 habeas corpus

petition. Conklin v. Schofield, 366 F.3d 1191, 1199 (11th Cir. 2004). Where a

claim was adjudicated on the merits in state court, federal courts may not grant

habeas relief unless the state court’s decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As we have

explained in Putman v. Head, “[t]he ‘contrary to’ and ‘unreasonable application’

clauses of § 2254(d)(1) are separate bases for reviewing a state court’s decisions.”

268 F.3d 1223, 1241 (11th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362,

404-05 (2000)).

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

if either (1) the state court applied a rule that contradicts the governing

law set forth by Supreme Court case law, or (2) when faced with

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materially indistinguishable facts, the state court arrived at a result

different from that reached in a Supreme Court case.

A state court conducts an “unreasonable application” of clearly

established federal law if it identifies the correct legal rule from

Supreme Court case law but unreasonably applies that rule to the facts

of the petitioner’s case. . . . [or] unreasonably extends, or

unreasonably declines to extend, a legal principle from Supreme Court

case law to a new context.

Id. (citations omitted).

As an initial matter, we reject Fortner’s claim that he was entitled to a threejudge, rather than a two-judge, panel to decide his motion for reconsideration and

request for expansion of the COA. “A party may file only one motion for

reconsideration with respect to the same order. Likewise, a party may not request

reconsideration of an order disposing of a motion for reconsideration previously

filed by that party.” 11th Cir. R. 27-3. Eleventh Circuit Rule 27-3 forecloses

Fortner from essentially requesting reconsideration of an order denying his original

motion for reconsideration, so we will not consider his arguments in that request.

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We also find no merit in Fortner’s argument that his two conspiracy

convictions violated the Double Jeopardy Clause, under Braverman, because they

 In addition, while Fortner cites Hodges v. Att’y Gen., State of Florida, 506 F.3d 1337 1

(11th Cir. 2007), for its suggestion that a three-judge panel would have heard the petitioner’s

motion for reconsideration of his request for expansion of a COA, that statement was only in

dicta, as the petitioner there had not in fact made such a motion. In addition, Eleventh Circuit

Rule 27-1(d) gives a single judge authority to “act upon any request for relief that may be sought

by motion, except to dismiss or otherwise determine an appeal or other proceeding.”

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were part of a single agreement. The Double Jeopardy Clause of the U.S.

Constitution provides that “[n]o person shall . . . be subject for the same offence to

be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double

Jeopardy Clause protects defendants in three situations: (1) a second prosecution

for the same offense after acquittal; (2) a second prosecution for the same offense

after conviction; and (3) multiple punishments for the same offense. Jones v.

Thomas, 491 U.S. 376, 380-81 (1989).

“Whether the object of a single agreement is to commit one or many crimes,

it is in either case that agreement which constitutes the conspiracy which the

statute punishes.” Braverman, 317 U.S. at 53. In Braverman, the defendants were

charged with seven counts of conspiracy based on violating seven different internal

revenue statutes. The Supreme Court reversed, holding that a single agreement

with multiple objectives involving separate substantive offenses is a single

conspiracy punishable only once under a single conspiracy statute. Id. at 50-54.

While “[a] single agreement to commit several crimes constitutes one

conspiracy . . . , multiple agreements to commit separate crimes constitute multiple

conspiracies.” United States v. Broce, 488 U.S. 563, 570-71 (1989). In Broce, the

defendants were charged with rigging two separate sets of bids for state highway

contracts, and pleaded guilty to two counts of conspiracy. Id. at 565-66. After

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another court, trying a different group of defendants, had ruled that the rigged bids

were part and parcel of a single conspiracy, the Broce defendants mounted a

collateral attack on their second conviction. Id. at 567. The Supreme Court

concluded that “[a] plea of guilty and the ensuing conviction comprehend all of the

factual and legal elements necessary to sustain a binding, final judgment of guilt

and a lawful sentence.” Id. at 569. Consequently, the defendants’ guilty pleas

foreclosed any opportunity to revisit the factual predicate upon which their

convictions rested. See id. at 571 (“When respondents pleaded guilty to two

charges of conspiracy on the explicit premise of two agreements which started at

different times and embraced separate objectives, they conceded guilt to two

separate offenses.”). In discussing double jeopardy the Court noted that “the gist

of the crime of conspiracy . . . is the agreement to commit one or more unlawful

acts.” Id. at 570 (alternations and quotations omitted).

Applying this case law, the Florida state court’s decision was not contrary

to, nor an unreasonable application of, clearly established federal law. Unlike in

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Braverman -- where the defendants entered into one agreement and were charged

 The state court’s decision is entitled to deference under the AEDPA because it was an 2

adjudication on the merits, even though the state court did not give an explanatory opinion. See

Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1347 (11th Cir. 2005) (“Even a summary,

unexplicated rejection of a federal claim qualifies as an adjudication entitled to deference under

§ 2254(d).”). Moreover, in his state court pleadings, Fortner identified Braverman as the

controlling law governing double jeopardy claims in a conspiracy context.

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with seven different conspiracies for violating seven different internal revenue

statutes, see 317 U.S. at 52-54 -- the evidence at Fortner’s trial demonstrated two

separate agreements for the delivery and sale of cocaine. The first agreement was

entered into on the morning of August 20, 1997, when Fortner and Tracy Gauthier

sold John Carlson two ounces of cocaine, and was completed when Carlson paid

Fortner $1,800 for those two ounces on the afternoon of August 20, 1997. The

second agreement took place when Fortner and Gauthier agreed to purchase four

additional ounces of cocaine for delivery and sale to Carlson on the afternoon of

August 20, 1997. One agreement was for the purchase of two ounces of cocaine,

and the second agreement was for the purchase of four ounces of cocaine.

Because Fortner entered into two agreements rather than one, his case is

distinguishable from Braverman, and as a result, Fortner’s conviction for two

conspiracy counts was not “contrary to” clearly established federal law. Putnam,

268 F.3d at 1241. Further, because “multiple agreements to commit separate

crimes constitute multiple conspiracies,” see Broce, 488 U.S. at 571, the state court

did not unreasonably interpret the Double Jeopardy Clause by concluding that

Fortner entered into two separate agreements to purchase and then sell two

different amounts of cocaine. In short, a deferential review of the state court’s

decision shows that the state court’s decision was neither contrary to, nor an

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unreasonable application of, clearly established federal law, and Fortner is not

entitled to relief.

AFFIRMED.

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