United States District Court, N.D. Alabama, Eastern Division
K. KALLON UNITED STATES DISTRICT JUDGE
magistrate judge filed a report and recommendation on
December 11, 2018, recommending the court dismiss Jimmy Wayne
Karr's U.S.C. § 2254 petition for habeas corpus
relief. Doc. 13. Karr timely filed objections to the report
and recommendation. Doc. 14.
objections, Karr reasserts his claim that there was
insufficient evidence to support his conviction for sexual
abuse in the second degree. Doc. 14 at 1-17. He further
contends that a material variance exists between his
indictment for sexual abuse and the State's evidence
during trial. Id. at 20-27. Specifically, Karr
argues the State failed to prove the victim was less than
sixteen years old at the time of the crime and, therefore, no
reasonable jury could have convicted him of the charge.
Id. at 1-2, 9, 14. Karr also maintains the State
impermissibly “broadened” the essential elements
of the sexual abuse charge by arguing the victim was
physically helpless when the crime occurred. Id. at
the standard set forth in Jackson v. Virginia, 443
U.S. 307 (1979), and viewing the evidence in the light most
favorable to the prosecution, a rational jury could have
convicted Karr of sexual abuse by crediting the victim's
testimony that she was asleep when the sexual contact began
and that she was incapable of giving consent. Doc. 6-2 at
26-27, 32-33, 38-39. Therefore, the appellate court's
decision that sufficient evidence existed to support
Karr's conviction for sexual abuse was not contrary to or
an unreasonable application of federal law, and was not based
on an unreasonable determination of fact. See Brown v.
Payton, 544 U.S. 133, 141 (2005); 28 U.S.C. §
the appellate court expressly found that Karr's material
variance challenge was barred under Ala. R. Crim. P.
32.2(a)(5) because Karr failed to raise the claim on appeal.
Doc. 6-17 at 4. Because Karr has not shown “cause and
prejudice” excusing the procedural default and has not
made a showing of actual innocence, he is barred from
litigating his material variance claim in this proceeding.
See Murray v. Carrier, 477 U.S. 478, 488 (1986);
Sawyer v. Whitley, 505 U.S. 333, 339 (1992).
the State was not required to show that the victim was less
than sixteen years of age pursuant to Ala. Code §
13A-6-67(a)(1). Instead, the State had to show that Karr
subjected the victim to sexual contact and the victim was
“incapable of consent by reason of some factor
other than being less than 16 years
old[.]” See Ala. Code § 13A-6-67(a)(1)
(emphasis added). Stated differently, the statute does not
require that the State prove the offense by pointing to the
victim's age, as Karr argues. Instead, the State must
prove a different reason, unrelated to whether the victim was
less than sixteen years old, why the victim was incapable of
consent. As a result, the State argued that the victim was
incapable of consent because she was asleep at the time the
sexual contact began. Doc. 6-2 at 25-46. Contrary to
Karr's contentions, this did not constitute a material
variance between the statute and the State's offer of
proof during trial.
Karr argues that his convictions for sexual abuse and
burglary constitute double jeopardy. Doc. 14 at 17-19, 27-32.
In Blockburger v. United States, the Supreme Court
held that “where the same act or transaction
constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires
proof of a fact which the other does not.” 284 U.S.
299, 304 (1932). Applying Blockburger, the Alabama
Court of Criminal Appeals rejected Karr's double jeopardy
claim, finding that third degree burglary and second degree
sexual abuse each involve proof of facts not required by the
other, and the trial court did not err in rejecting
Karr's claim. Doc. 6-17 at 5-6. The appellate court's
decision was not contrary to federal law, was not an
unreasonable application of federal law, and was not based on
an unreasonable determination of fact. See Brown v.
Payton, 544 U.S. 133, 141 (2005); 28 U.S.C. §
2254(d)(2). Therefore, Karr is not entitled to relief on this
carefully considered de novo all the materials in
the court file, including the report and recommendation and
the objections thereto, the court ADOPTS the
report and ACCEPTS the recommendation. The
court ORDERS that the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the
above-styled cause is due to be denied and dismissed with
prejudice. A separate order will be entered.
court may issue a certificate of appealability “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell,537 U.S. 322, 336 ...