Karr v. Stewart et al

Filing 15

MEMORANDUM OPINION the court ADOPTS the report and ACCEPTS the recommendation. The court ORDERES that the petition for a writ of habeas corpus in the above-styled case is due to denied and dismissed with prejudice. Signed by Judge Abdul K Kallon on 1/14/2019. (AFS)

FILED
2019 Jan-14 PM 02:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JIMMY WAYNE KARR,
Petitioner,
v.
MARY COOKS and THE
ATTORNEY GENERAL OF THE
STATE OF ALABAMA,
Respondents.

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Case No.: 1:16-cv-00421-AKKJHE

MEMORANDUM OPINION
The 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.
In his 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
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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 21.
Under 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. § 2254(d)(2).
Additionally, 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).
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Moreover, 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.
Finally, 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
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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 ground.
Having 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.
The 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.”
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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This
court finds petitioner’s claims do not satisfy either standard.
DONE the 14th day of January, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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