The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11686 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 25, 2009
________________________ THOMAS K. KAHN
CLERK
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.
________________________
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
2
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 three-
judge, 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.1
We also find no merit in Fortner’s argument that his two conspiracy
convictions violated the Double Jeopardy Clause, under Braverman, because they
1
In addition, while Fortner cites Hodges v. Att’y Gen., State of Florida, 506 F.3d 1337
(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.”
3
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
4
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.2 Unlike in
Braverman -- where the defendants entered into one agreement and were charged
2
The state court’s decision is entitled to deference under the AEDPA because it was an
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.
5
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
6
unreasonable application of, clearly established federal law, and Fortner is not
entitled to relief.
AFFIRMED.
7