United States District Court, N.D. Alabama, Southern Division
Scott Coogler United States District Judge
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.
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
magistrate judge recommended that Claim 1 be denied as
procedurally defaulted or, in the alternative, on the merits.
(Doc. 15 at 28-31). 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.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) and 15-3-8 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
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).
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).
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.
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.
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 ...