Thomas v. Myers et al

Filing 17

MEMORANDUM OPINION - Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation and the objections thereto, Thomass objections are OVERRULED and the magistrate judges report is hereby ADOPTED and the recommendation is ACCEPTED. Accordingly, the court FINDS that Thomass claims for habeas corpus relief pursuant to 28 U.S.C. ' 2254 are due to be DENIED and this action is due to be dismissed. DISMISSED WITH PREJUDICE. A certificate of appealability is due to be DENIED. An order consistent with these findings will be entered. Signed by Judge L Scott Coogler on 6/28/2019. (KEK)

FILED
2019 Jun-28 AM 11:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERIC SCOTT THOMAS,
Petitioner,
v.
WARDEN WALTER MYERS and
THE STATE OF ALABAMA,
Respondents.

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Case No.: 2:16-cv-00960-LSC-JEO

MEMORANDUM OPINION
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

1

The recommendation refers to claim 2, but the context of the report shows that to be a
scrivener’s error.

2

Thomas asserts “assault can be a lesser included offense of murder” and that “conviction of a
lesser included offense is express acquittal of the greater offense.” (Doc. 16 at 2) (citing Johnson
v. State, 675 So. 2d 85 (Ala. Crim. App. 1995), reversed 843 So. 2d 812 (Ala. 2002), and Heard
v. State, 999 So. 3d 992 (Ala. 2007), respectively). However, neither the facts nor the holdings
in these cases pertain to first degree assault as a lesser included offense of murder in a multivictim case.

2

States, 284 U.S. 299, 304 (1932)). Further, Ala. Code “§§ 13A-1-8(b)[3] and 15-38[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.
3

Section13A-1-8(b) reads, “When the same conduct of a defendant may establish the
commission of more than one offense, the defendant may be prosecuted for each such offense.”

4

Section 15-3-8 reads, in pare materia, “Any act or omission declared criminal and punishable
in different ways by different provisions of law shall be punished only under one of such
provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or
omission under any other provision.”

3

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
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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
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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 serious physical
injury to another person, he . . . causes serious physical injury to any person by
means of a deadly weapon or dangerous instrument.”).
Each of these statutory provisions contains ‘transferred intent’ language. Id.
As pertains to Thomas, the indictment charged that he “did intentionally cause the
death of another person, Dickey Holley, by shooting him with a pistol, in violation
of Section 13-6-2” and that he “did, with intent to cause serious physical injury to
another person, cause serious physical injury to Debra Holley by means of a deadly
weapon, or a dangerous instruction, to wit: a pistol, in violation of Section 13-620.” (Doc. 8-1 at 3)(emphasis supplied). Thus, the State prosecuted only the first
degree assault charge under a transferred intent theory.
The “culpable mental state” for both murder and first degree assault is
“intentionally.” See § 13A-2-2(a)(“A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense, when his purpose is
to cause that result or to engage in that conduct.”); §13A-2-1(6) (defining
“culpable mental state” as meaning “intentionally, or knowingly, or recklessly, or
with criminal negligence, as these terms are defined in Section 13-2-2”). Under
Alabama law, intent to commit murder or first degree assault can be inferred from
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the use of a deadly weapon, such as a pistol. Henderson v. State, 248 So. 3d 992,
1006 (Ala. Crim. App. 2017) (citing Sparks v. State, 75 So. 2d 103 (Ala. 1953)).
True to the language in the indictment, the trial court only provided the
transferred intent instruction with regard to the assault charge stating as follows:
As to the assault charge involving Debra Holley, the State is
proceeding under the theory of what is called ‘transferred intent,’
okay? Generally, in every case, the State must prove the defendant
acted with intent. However, in this case, the State, or the prosecution,
maintains that, while the defendant did not necessarily have the intent
to assault Debra Holley, he did have the intent to harm [Dickey]
Holley, and then the law allows the State to prove the intent to harm
one person, even though his intent was, perhaps, to harm another.
Stated another way, if I intend to harm Roy, my bailiff, but I’m a bad
shot, and I harm someone else, instead, out in the audience, the law
does not excuse that simply because I’m a poor shot.
(Doc. 8-21 at 7). The jury found Thomas guilty of both counts as charged in the
indictment. Thomas has not pointed to any Alabama precedent that prohibits or
rejects transferred intent in a case involving the same factual and statutory
provisions at issue. The trial court’s interpretation of transferred intent as applied
to the circumstances in Thomas’s case is supported by the statutory provision
previously discussed. To the extent Carter has any application to Thomas’s case
whatsoever within the transferred intent context, it is this: “Alabama appellate
courts have repeatedly held that the defendant’s liability for the unintended
consequences of a criminal act is in the same degree as it would have been had his
aim been true and the intended target been injured or killed.” 843 So. 2d at 814
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(emphasis supplied). Because the culpable mental state for both of Thomas’s
charges was intentional conduct, the trial court correctly applied the transferred
intent doctrine to the first degree assault charge. The jury did not render mutually
exclusive and inconsistent verdicts,5 much less mutually exclusive or inconsistent
verdicts that would also intersect with and offend jurisdictional double jeopardy
principles.
For all of the foregoing reasons, Thomas’s objections to the report and
recommendation as to Claim 1 are due to be overruled.
B.

Claim 5

Thomas objects to the magistrate judge’s report and recommendation that
the ineffectiveness claims against trial and appellate counsel for failure to object or
raise the multiplicitous indictment and his subjection to double jeopardy as an
issue are procedurally defaulted, or in the alternative, meritless. (Doc. 16 at 3)
(citing Doc. 15 at 46-47, 49). As to ineffective trial counsel, Thomas takes issue
with the magistrate judge’s report that “the ACCA did not unreasonably determine
the petition contained no specific facts to show a reasonable probability that the

5

Compare Martinez v. State, 989 So. 2d 1143, 1145 (Ala. Crim. App. 2006) (holding that jury
returned mutually exclusive and inconsistent verdicts when it found the defendant guilty reckless
assault in the second degree of one victim and criminally negligent homicide of three victims
predicated on motor vehicle accident that occurred when intoxicated defendant ran stop sign and
hit another vehicle).

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outcome of his trial would have been different had counsel objected to the
indictment as multiplicitous.” (Id.) (citing Doc. 15 at 47).
Thomas claims that the supporting allegation for this claim – that he had
fired five shots and the murder victim had five entry wounds and two exit wounds
so the assault victim had to be injured by a bullet fired at the murder victim – were
the only facts he had to support this claim. (Id. at 3-4). He declares that the
ACCA should also have considered the following allegation he raised in the single
‘transferred intent’ claim he made in his amended Rule 32 petition: “by finding
Thomas guilty of first degree assault by transferred intent, lessened his intent to
kill to intent to cause serious physical injury.” (Id. at 4 (Doc. 27-8 at 16)). He asks
this court to review his trial testimony where he testified that he did not know how
Debra had been wounded. (Id.). Finally, he states that the magistrate judge’s
examination of the underlying substantive claim should be considered. (Id. at 4-5
(citing Doc. 15 at 29-31)).
Thomas’s objections are due to be overruled. First and foremost, neither the
trial transcript, the

magistrate judge’s examination of the substantive

‘multiplicitous indictment’ ‘double jeopardy’ claim, nor Thomas’s Rule 32 claim
concerning ‘transferred intent’ can be included among the allegations considered in
support of his discrete ineffective trial counsel claim. For purposes of federal
habeas review, this court can only examine “the contours” of the ineffective trial
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counsel claim as alleged in Thomas’s Rule 32 petition. Cullen v. Pinholster, 563
U.S.170, 181 (2011) (“We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the
merits.”); Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010)(when the state
court dismisses a claim as insufficiently specific under Rule 32, a habeas court
may “look only to the allegations in [petitioner’s] Rule 32 petition and whether
those allegations sufficiently state a claim for ineffective assistance of counsel).
Thomas supported this ineffective trial counsel claim in his Rule 32 petition
by asserting, “If a person does a single act which results in the injury or death or
more than one person only one offense can be fastened on him. Thomas fired five
times. Mr. Holley had five entry wounds and 2 exit wounds. If Debra Holley was
struck by a bullet it had to pass through Dickey Holley first.” (Doc. 8-27 at 41-42
(case law citation omitted)). The Alabama Court of Criminal Appeals’ denial of
the claim on the merits as insufficiently specific was not contrary to or
unreasonable application of clearly established federal law.
As for his ineffective assistance of appellate counsel claim, Thomas points
to no factual or legal errors undercutting the magistrate judge’s report that the
claim is procedurally defaulted.

The Alabama Court of Criminal Appeals

determined that he had failed to properly raise the claim before the trial court as

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required by Alabama procedural rules. Thus, he could not raise the claim for the
first time during his collateral appeal. (Doc. 15 at 46).
III.

CONCLUSION
Having carefully reviewed and considered de novo all the materials in the

court file, including the report and recommendation and the objections thereto,
Thomas’s objections are OVERRULED and the magistrate judge’s report is
hereby ADOPTED and the recommendation is ACCEPTED. Accordingly, the
court FINDS that Thomas’s claims for habeas corpus relief pursuant to 28 U.S.C.
' 2254 are due to be DENIED and this action is due to be dismissed.
DISMISSED WITH PREJUDICE. A certificate of appealability is due to be
DENIED. An order consistent with these findings will be entered.
DONE and ORDERED on June 28, 2019.

_____________________________
L. Scott Coogler
United States District Judge
160704

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