Thomas v. Myers

          MEMORANDUM OPINION

          L. Scott Coogler United States District Judge

         Petitioner Eric Scott Thomas filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The magistrate judge filed a report on February 22, 2019, recommending that the petition be denied. (Doc. 15). Thomas filed objections to the report and recommendation on March 6, 2019. (Doc. 16). Upon consideration, the court finds that the objections are due to be overruled, his request for relief denied, and this action dismissed with prejudice.

         Thomas initially argues in his objections that the magistrate judge and the Alabama Court of Criminal Appeals (“ACCA”) “overlooked or misapprehended several issues” and that the report omits “several facts” with regard to his first claim - the conviction on the assault charge operated as an acquittal on the murder charge. (Id. at 2-6). He also argues that Claim 5 - ineffective assistance of counsel - is “viable, ” but only to the extent the ineffective assistance of trial and appellate counsel claims therein “are directly tied to Claim 1.” (Id. at 1, 6-7).

         I. DISCUSSION

         A. Claim 1

         The magistrate judge recommended that Claim 1 be denied as procedurally defaulted or, in the alternative, on the merits. (Doc. 15 at 28-31).^[1] Thomas declares Claim 1 raises a viable jurisdictional double jeopardy claim because his conviction for the lesser-included offense of first degree assault as to victim Debra Holley operated as an acquittal on the greater offense of murder of Dickey Holley.^[2]However, as explained by the magistrate judge, “[t]he jury convicted Thomas of two distinct crimes against two individuals: the first degree assault of Debra Holley and the murder of Dickey Holley. As such, the two-count indictment against Thomas was not multiplicitous and his prosecution and conviction for both offenses does not implicate any double jeopardy concerns.” (Doc. 15 at 30) (citing Iannelli v. United States, 420 U.S. 770, 786 n. 17 (1975); Blockburger v. United States, 284 U.S. 299, 304 (1932)). Further, Ala. Code “§§ 13A-1-8(b)^[3] and 15-3-8^[4] allow for more than one prosecution and conviction when more than one person is injured as a result of a single criminal act.” McKinney v. State, 511 So.2d 220, 225 (Ala. 1987) (footnote alterations supplied). This objection is without merit.

         Next, Thomas agrees with the magistrate judge that his “argument concerning the transferred intent doctrine and multiplicitous indictment are disjointed” and “the indictment is of little or no issue.” (Doc. 16 at 2). Despite this concession, Thomas declares his transferred intent argument is a way to “explain[]” why his conviction for the assault of Debra Holley results in an acquittal of the murder of Dickey Holley. (Id. at 2-3). In so doing, he relies on Carter v. State, 843 So.2d 807 (Ala.Crim.App.2001), a case the Alabama Supreme Court reversed, see 843 So.2d 812 (Ala. 2002).

         Thomas cannot bootstrap his transferred intent argument into a viable jurisdictional double jeopardy claim. Indeed, under the facts of his case, the transferred intent argument is no more than a procedurally defaulted due process claim wholly distinct from the jurisdictional double jeopardy claim.

In his report, the magistrate judge correctly noted that

Thomas's transferred intent argument does not implicate double jeopardy concerns. To the extent it could be argued that due process concerns are implicated, the trial court effectively found that the doctrine applied during jury charge discussions. (Doc. 8-20 at 100). Transferred intent involves solely a question of state law. “A state court's interpretation of state law . . . binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)).

(Doc. 15 at 30-31 n. 7).

         Addressing Thomas's objection, it is true that the Alabama Supreme Court resolved a transferred intent question in Carter v. State, 843 So.2d 812 (Ala. 2002); regardless, the decision is based on legal and factual circumstances wholly distinct from Thomas's case. Furthermore, the Carter decision did not involve a jurisdictional double jeopardy question at all, much less a double jeopardy claim that necessarily intersected with a separate due process claim involving transferred intent.

         The pertinent facts underlying Carter are as follows. Carter, her boyfriend, and her good friend Johnson became involved in an altercation with several individuals, including Marcus Cephas. Id. at 813. Carter hit Cephas as her boyfriend fought him and Cephas knocked her to the ground. Id. Carter picked up a gun lying on the ground and began firing. Id. She shot and killed Cephas and her friend Johnson and wounded her boyfriend. Id. A jury convicted Carter of the provocation manslaughter of Cephas and the intentional murder of Johnson. Id. The Alabama Court of Criminal Appeals reversed the convictions, holding that “under the doctrine of transferred intent, a defendant can[not] be convicted of an offense as to the unintended victim that is greater than the offense the convicted of with respect to the intended victim.” 843 So.2d at 813. Thomas specifically points to the following excerpt from the appellate court's opinion: “when the intent was transferred from Cephus to Johnson so did the degree of the offense and any available defenses.” (Doc. 16 at 3 (quoting Carter, 843 So.2d at 811) (holding that Carter's culpability for the death of Johnson was limited to provocation manslaughter)). The State appealed and the Alabama Supreme Court reversed, holding that provocation under Alabama law did not negate Carter's specific intent to kill Cephas, but instead lessened or excused Carter's guilt in the eyes of the law. Carter, 843 So.2d at 815-816. Because “[n]o provocation existed to lessen the guilt” as to Johnson's murder, the Alabama Supreme Court found no inconsistency in the jury's verdicts and directed the Alabama Court of Criminal Appeals to affirm Carter's conviction for the intentional murder of Johnson. Id. at 816.

         Unlike Carter, Thomas's convictions do not involve transferred intent in the context of two murders prosecuted under the same statutory provision. See Ala. Code § 13A-6-2(a)(1) (“A person commits the crime of murder if . . . [w]ith intent to cause the death of another person, he or she causes the death of that person or of another person.”). Instead, his convictions arise from the separate statutory provisions of murder (id.) and assault (see § 13A-6-20(a)(1) (“A person commits the crime of assault in the first degree if. . . [w]ith intent to cause ...