Jackson v. Sconyers et al (INMATE 3)

Filing 17

ORDERED that the 16 objection of Petitioner is OVERRULED, the court ADOPTS the 15 Recommendation of the Magistrate Judge, and it is hereby ORDERED that this petition for habeas corpus relief under 28 USC § 2254 is DENIED, and this case is DISMISSED with prejudice. Signed by Honorable Judge W. Harold Albritton, III on 8/19/2015. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARDELLA ANTIONNE JACKSON,
#284536,
Petitioner,
vs.
KENNETH SCONYERS, et al.,
Respondents..

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CASE NO. 1:13-cv-650-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #15),
entered on July 13, 2015, and the Petitioner’s Objection (Doc. #16), filed on July 23, 2015.
The court has conducted an independent evaluation and de novo review of the file in this
case, and, having done so, finds the objection to be without merit.
This Magistrate Judge entered a Recommendation finding that Jackson’s 28 U.S.C. §
2254 petition should be denied. In his petition, Jackson claimed that his Alabama convictions
for three separate counts of second-degree sodomy violated the prohibition against double
jeopardy because the sexual acts underlying the convictions were with the same person on the
same day and were part of a continuing course of conduct and therefore constituted a single
offense. The Recommendation found that the state court’s rejection of Jackson’s doublejeopardy claim was not an unreasonable application of federal law as determined by the Supreme
Court, because the evidence showed that Jackson engaged in three separate sexual acts
constituting separate and distinct offenses, justifying the separate counts of second-degree
sodomy, even though the criminal episode occurred during the course of a single evening.
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In his Objection, Jackson cites two Alabama sex-offense cases which were not cited to
the Magistrate Judge, King v. State, 574 So.2d 921 (Ala. Crim App. 1993), and Williams v. State,
10 So.3d 1083 (Ala. Crim. App. 2008), involving defendants who obtained relief on doublejeopardy grounds. However, those cases are factually inapposite to Jackson’s case.
The court in King found:
After evaluating the appellant's convictions in light of the above cases, we find that the
appellant could not be convicted of sexual abuse in the first degree and rape in the first
degree, since sexual abuse in the first degree is a lesser included offense of rape in the
first degree. Nor could he constitutionally be convicted of two counts of the same statute.
“The Double Jeopardy Clause ... protects against multiple punishments for the same
offense. [citation omitted]. Where consecutive sentences are imposed at a single criminal
trial, the role of the constitutional guarantee is limited to assuring that the court does not
exceed its legislative authorization by imposing multiple punishments for the same
offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187
(1977). This in no way implies that if there were more than one instance of the
complained of conduct the appellant could not be convicted under each statute.
However, the evidence in the instance case is clear that only one act took place. Thus,
the appellant could constitutionally only be convicted of one count instead of the four
counts of which he was convicted here.
574 So.2d at 929.
Thus, the evidence in King established only one unlawful sexual act, which was improperly used
to support four convictions. In Jackson’s case, however, the evidence established three distinct
unlawful sexual acts.
In the other Court of Criminal Appeals case cited in Jackson’s Objection, the court said:
Williams was indicted for two counts of first-degree rape and two counts of firstdegree sexual abuse. All charges related to a single victim, V.C. The first count of rape
charged that Williams had sexual intercourse with the victim by forcible compulsion, a
violation of § 13A-6-61(a)(1), Ala.Code 1975. The second count of rape alleged that
Williams engaged in sexual intercourse with the victim when Williams was over the age
of 16 and the victim was less than 12 years old, a violation of § 13A-6-61(a)(3),
Ala.Code 1975. The first count of sexual abuse charged that Williams subjected the
victim to sexual contact by forcible compulsion, a violation of § 13A-6-66(a)(1),
Ala.Code 1975. The second count of sexual abuse charged that Williams subjected the
victim to sexual contact when Williams was over the age of 16 and the victim was less
than 12 years old, a violation of § 13A-6-66(a)(3), Ala.Code 1975....
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All four counts were submitted to the jury, and Williams was convicted of all four
counts. On May 18, 2007, Williams was sentenced to a term of life imprisonment for
each rape conviction and to 10 years' imprisonment for each sexual-abuse conviction.
The trial court ordered the sentences to be served consecutively.
10 So. 3d at 1084.
The court found that a double-jeopardy violation had occurred, reasoning as follows:
... Based on the evidence, Williams's motion for a judgment of acquittal, and the trial
court's jury charge, the State appeared to be prosecuting Williams under alternate theories
of rape for a single incident and under alternate theories of sexual abuse for a single
incident rather than charging separate counts of rape for separate incidents and separate
counts of sexual abuse for separate incidents. As in Robey and as in Johnson, Williams
was “charged with and convicted of two counts of violating one statutory offense based
on alternative means of committing that offense.” 950 So.2d at 377. See also King v.
State, 574 So.2d 921 (Ala .Crim. App.1990).
Therefore, in accordance with Ex parte Rice, supra, and Carlisle v. State, 963
So.2d 170 (Ala.Crim.App.2006), we remand this case for the trial court to enter a new
order that adjudges Williams guilty of one count of rape and one count of sexual abuse
and sentences him for each of those single offenses.
10 So.3d at 1088.
Unlike Williams, Jackson was not improperly convicted of multiple counts based on
alternative means of committing a single offense (i.e., a single unlawful act), but instead was
convicted of committing three separate and distinct unlawful acts that took place in the course of
a single evening.
In this case, the Alabama Court of Criminal Appeals had affirmed Jackson’s convictions
and sentence, rejecting the double jeopardy claim on the basis that his convictions for second
degree sodomy involved separate and distinct sexual acts. The Recommendation cited several
earlier decisions by that court with the same effect, and went on to hold that the state court’s
rejection of Jackson’s double jeopardy claim was not an unreasonable application of federal law
as determined by the Supreme Court. The court agrees with that finding. The court also agrees

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with the Magistrate Judge that, therefore, Jackson is not entitled to federal relief and that his
petition should be denied without an evidentiary hearing.
Therefore, for the reasons stated, the objection of Petitioner is OVERRULED, the court
ADOPTS the Recommendation of the Magistrate Judge, and it is hereby
ORDERED that this petition for habeas corpus relief under 28 U.S.C. § 2254 is DENIED,
and this case is DISMISSED with prejudice.
DONE this 19th day of August, 2015.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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