Jordan v. Thomas et al

Filing 9

MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 10/31/2014. (AHI )

FILED
2014 Oct-31 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LARRY JOE JORDAN,
Petitioner,
vs.
WARDEN WILLIE THOMAS and
the ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents.

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Case No: 2:14-cv-1386-CLS-JEO

MEMORANDUM OPINION
This case is before the court on a petition for writ of habeas corpus filed by
Larry Joe Jordan pursuant to 28 U.S.C. § 2254. Petitioner is serving a 40-year
sentence on his conviction for reckless murder, in violation of Ala. Code § 13A-62(a)(2), which arose out of a drunk-driving accident. See Ex parte Jordan, 486 So.
2d 485 (Ala. 1986). On July 31, 2014, the magistrate judge entered a report and
recommendation, recommending that habeas relief is due to be denied because this
action, filed on July 16, 2014, comes more than seventeen years after the expiration
of the statute of limitations. See 28 U.S.C. § 2244(d)(1).1 Petitioner filed an
objection to the report and recommendation.2

1

Doc. no. 5.

2

Doc. no. 8.

In his objection, petitioner expressly admits that his § 2254 application was not
filed within the limitations period, which in his case expired in April of 1997.3 He
maintains, however, that he is actually innocent, such that he is entitled, pursuant to
McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924 (2013), to have this court
address his habeas claims despite their untimeliness.4

While acknowledging

McQuiggin’s holding that a § 2254 petitioner may overcome the statute of limitations
based on actual innocence, the magistrate judge summarily rejected the applicability
of that doctrine here, stating that the petition does not contain “any allegations that
even hint” that petitioner can make the necessary showing.5
In order to pass through the actual-innocence gateway, a § 2254 petitioner must
“persuade the district court that, in light of . . . new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.”
McQuiggin, 133 S. Ct. at 1928 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
This threshold is “‘demanding’ and seldom met.” Id. (quoting House v. Bell, 547
U.S. 518, 538 (2006)). “It is important to note in this regard that ‘actual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). The
3

Id. at 3 and 7.

4

Id. at 4.

5

Doc. no. 5, at 4.
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district court considers “all of the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted under rules
of admissibility that would govern at trial.” House, 547 U.S. at 538 (quoting Schlup,
513 U.S. at 327-28 (internal quotation marks and further citation omitted)). “Based
on this total record, the court must make “a probabilistic determination about what
reasonable, properly instructed jurors would do.” Id. (quoting Schlup, 513 U.S. at
329)).
Petitioner’s claim of actual innocence set forth in his objection is utterly
without merit. Petitioner posits that he is actually innocent based on his theory that
the state trial court lacked subject-matter jurisdiction to convict him of reckless
murder under Ala. Code § 13A-6-2(a)(2),6 stemming from his operation of a motor
vehicle. He supposes that to be so because the Alabama legislature had also enacted
another, more specific statute criminalizing vehicular homicide, Ala. Code § 32-5A-

6

Alabama’s murder statute, Ala. Code § 13A-6-2, reads, in pertinent part:
(a) A person commits the crime of murder if:
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(2) Under circumstances manifesting extreme indifference to human
life, he recklessly engages in conduct which creates a grave risk of
death to a person other than himself, and thereby causes the death of
another person ....
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192.7 However, this argument is nothing more than a repackaging of petitioner’s
substantive claim for habeas relief.

His assertion that the trial court lacked

jurisdiction amounts to a claim of mere legal insufficiency, not actual innocence. See
Justo v. Culliver, 317 F. App’x 878, 880-81 (11th Cir. 2008). Moreover, boiled down
to its essence, petitioner’s argument is that he is actually innocent of reckless murder
because he was guilty of only vehicular homicide. However, a habeas petitioner who
has been convicted of a non-capital homicide offense does not establish actual
innocence by showing that he was instead guilty of a lesser degree of homicide.
Rozzelle v. Secretary, Fla. DOC, 672 F.3d 1000, 1015 (11th Cir. 2012); cf.
McQuiggin, 133 S. Ct. at 1928 (framing the issue as whether “the time bar [can] be
overcome by a convincing showing that [the petitioner] committed no crime”

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At the time of petitioner’s offense, Alabama’s vehicular homicide statute, Ala. Code § 325A-192(a), provided:
(a) Whoever shall unlawfully and unintentionally cause the death of another person
while engaged in the violation of any state law or municipal ordinance applying to
the operation or use of a vehicle or to the regulation of traffic shall be guilty of
homicide when such violation is the proximate cause of said death.
(b) Any person convicted of homicide by vehicle or vessel shall be fined not less than
five hundred dollars ($500) nor more than two thousand dollars ($2,000), or shall be
imprisoned for a term not less than one year nor more than five years, or may be so
fined and so imprisoned.
The Alabama Supreme Court subsequently invalidated the statute to the extent its text might
authorize a conviction without proof of a criminally culpable mental state. Ex parte Edwards, 816
So. 2d 98, 107 (Ala. 2001). The statute was repealed, effective July 1, 2014. See Ala. Acts 2014427, § 2.
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(emphasis added, alterations supplied)). Accordingly, his § 2254 petition remains
time barred.8
But even as a freestanding habeas claim, petitioner’s argument is plainly
meritless, regardless of any time bar or procedural default. Federal habeas relief does
not lie based upon errors of state law unless such also gives rise to a federal
constitutional violation. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). Likewise,
this court cannot review state court interpretations of state statutes unless some
federal constitutional issue is implicated. See McCoy v. Newsome, 953 F.2d 1252,
1264 (11th Cir. 1992). To that end, Alabama courts have expressly held that Ala.
Code § 32-5A-192 poses no bar to murder prosecutions under § 13A-6-2 or other
homicide sections of the Alabama criminal code. See Hammonds v. State, 7 So. 3d
1038, 1050 (Ala. Crim. App. 2006), rev’d on other grounds, 7 So. 3d 1055 (Ala.
2008); Duncan v. State, 473 So. 2d 1203, 1204-05 (Ala. Crim. App. 1985). Rather,
the Alabama courts construe vehicular homicide under § 32-5A-192 as, at least in
some circumstances, a lesser included offense of murder under § 13A-6-2, see Black
8

Petitioner also insists that his habeas petition is not subject to any limitations period
because his claim supposedly calls into question the jurisdiction of the Alabama trial court. (Doc.
no. 9). However, assuming purely for the sake of argument that petitioner’s claim is “jurisdictional”
in the sense he contemplates, such claims are still subject to the federal limitations period of §
2244(d)(1), as recognized by the magistrate judge. (See doc. no. 5, at 3-4 (citing Hatcher v. Boyd,
2014 WL 130756, at *3 (N.D. Ala. Jan. 14, 2014); Pope v. Butler, 2012 WL 4479263 at *1 (N.D.
Ala. Sep. 24, 2012); Harrell v. White, 2014 WL 1017878, at *1 (S.D. Ala. Mar. 17, 2014)); see also
Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011).
5

v. State, 586 So. 2d 968, 969 (Ala. Crim. App. 1991), indeed, as in petitioner’s own
case, see Ex parte Jordan, 486 So. 2d at 486-88, and of manslaughter under § 13A-63, see Barrett v. State, 33 So. 3d 1287, 1288-89 (Ala. Crim. App. 2009). Petitioner
offers no authority or explanation supporting the contention that the Alabama courts’
interpretation of the relationship between §§ 13A-6-2 and 32-5A-192 runs afoul of
any federal constitutional provision.
In fact, “it is well settled that ‘when an act violates more than one criminal
statute, the Government may prosecute under either so long as it does not
discriminate against any class of defendants.” United States v. Tomeny, 144 F.3d
749, 752 (11th Cir. 1998) (quoting United States v. Batchelder, 442 U.S. 114, 123-24
(1979)). There is no question of such discrimination here. Ultimately, the fact that
one criminal statute is more specific than another one is not itself sufficient to
preclude a prosecution under the latter. See Tomeny, 144 F.3d at 754 n.10; United
States v. Suggs, 755 F.2d 1538, 1542 (11th Cir. 1985); United States v. Fern, 696
F.2d 1269, 1273 (11th Cir. 1983); United States v. Anderez, 661 F.2d 404, 407 (5th
Cir. Unit B Nov. 1981)9; see also United States v. Sherman, 150 F.3d 306, 318 (3d
Cir. 1998); United States v. Hopkins, 916 F.2d 207, 218 (5th Cir. 1990); United States

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Decisions by a Unit B panel of the former Fifth Circuit are binding precedent in the
Eleventh Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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v. Hansen, 772 F.2d 940, 945-46 (D.C. Cir. 1985); United States v. Demangone, 456
F.2d 807, 810-11 (3d Cir. 1972).
Having carefully reviewed and considered de novo all the materials in the court
file, including the magistrate judge’s report and recommendation and petitioner’s
objections thereto, the court is of the opinion that the magistrate judge’s findings are
due to be, and they hereby are, ADOPTED, and his recommendation is ACCEPTED.
Petitioner’s objections are OVERRULED. Accordingly, the petition for writ of
habeas corpus is due to be DENIED and this action is due to DISMISSED WITH
PREJUDICE. Furthermore, because the petition does not present issues that are
debatable among jurists of reason, a certificate of appealability is also due to be
DENIED. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000);
Rule 11(a), RULES GOVERNING § 2254 PROCEEDINGS. A separate Final Judgment will
be entered.
DONE this the 31st day of October, 2014.

______________________________
United States District Judge

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