Daniel v. Gordy et al
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/13/18. (SAC )
2018 Mar-13 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BRYAN LEE DANIEL,
WARDEN CHRISTOPHER GORDY,
This habeas corpus case was filed on or about January 2, 2017, pursuant to 28
U.S.C. § 2254 by Petitioner Bryan Lee Daniel, an Alabama state prisoner acting pro
se. (Doc.1 1 (“Petition” or “Pet.”)). Incarcerated at the Limestone Correctional
Facility in Harvest, Alabama, Daniel challenges his 1989 guilty-plea convictions on
two counts of intentional murder, in violation of Ala. Code § 13A-6-2(a)(1), for which
he is serving two consecutive life sentences. (Id.) The magistrate judge to whom the
case was referred entered a report and recommendation (“R&R”) concluding that
Daniel’s habeas petition is barred by the one-year statute of limitations, 28 U.S.C. §
References to “Doc(s)___” are to the documents number of the pleadings, motions, and
other materials in the court file, as compiled and designated on the docket sheet by the Clerk of
the Court. Pinpoint citations are to the page of the electronically filed document in the court’s
CM/ECF system, which may not correspond to pagination on the original “hard copy” of the
document presented for filing.
2244(d). (Doc. 4). Daniel has filed a 32-page objection (Doc. 9), which includes a
declaration from the fellow inmate who has prepared Daniel’s filings in this court.
(Id. at 32). The court discerns Daniel’s objection to contain arguments that can be
broken down into four sections. They are addressed in turn below.
Daniel first objects to the magistrate judge’s having raised the statute of
limitations sua sponte, without having the State respond to the petition. (Doc. 9 at 58). However, the court has discretion to address issues where, as here, the State has
not waived the defense. See Day v. McDonough, 547 U.S. 198, 207-11 (2006);
Jackson v. Secretary for DOC, 292 F.3d 1347, 1349 (11th Cir. 2002). Indeed, raising
the timliness issue is particularly appropriate here given that, under 28 U.S.C. §
2244(d)(1)(A), the limitations period on Daniel’s claims only extended one year past
the date his murder convictions became final in April 1996,2 and Daniel did not file
this action until January 2017, or more than 19 years too late absent tolling of the
limitations period. Further, Daniel has suffered no unfair prejudice because he has
Under traditional habeas doctrine, Daniel’s murder convictions became final in 1989,
upon the expiration of his deadline for filing a timely direct appeal under state law. See Griffith
v. Kentucky, 479 U.S. 314, 321 n. 6 (1987). However, for purposes of 28 U.S.C. §
2244(d)(1)(A), his convictions are deemed not to have become final until April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which contains
the relevant statute of limitations. See Wilcox v. Florida DOC, 158 F.3d 1209, 1211 (11th Cir.
been afforded notice and an opportunity to challenge the time bar in his objections to
the R&R, prior to any final adjudication by the court. See Day, 547 U.S. at 210-11;
Campos v. United States, 2016 WL 6821134, at *1 n. 5 (N.D. Ga. Aug. 10, 2016),
report and recommendation adopted, 2016 WL 6805305 (N.D. Ga. Nov. 15, 2016).
This objection lacks merit.
Daniel next disputes the magistrate judge’s determination that the petition is not
saved by equitable tolling of the limitations period. (Doc. 9 at 8-19). A habeas
petitioner is “‘entitled to equitable tolling’ only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling,
however, is “an extraordinary remedy” that “is typically applied sparingly.” Arthur v.
Allen, 452 F.3d 1234, 1252 (11th Cir. 2006). At the pleading stage, the petitioner has
the burden to allege facts that are “specific and not conclusory” and that, if true,
would justify tolling for a period sufficient to render the petition timely filed.
Hutchinson v. Florida, 677 F.3d 1097, 1099 (11th Cir. 2012); see also Lugo v.
Secretary, Fla. DOC, 750 F.3d 1198, 1209 (11th Cir. 2014); Chavez v. Secretary, Fla.
DOC, 647 F.3d 1057, 1073 (11th Cir. 2011).
Daniel’s claim of equitable tolling is based on an alleged mental impairment.
The magistrate judge acknowledged that, under Hunter v. Ferrell, 587 F.3d 1304
(11th Cir. 2009), equitable tolling may apply where a petitioner pleads and proves
specific facts supporting both (1) that he suffers from a substantial mental impairment
and (2) that such impairment actually prevented him from being able to file his federal
habeas petition within the statute of limitations. Id. at 1308; see also Lawrence v.
Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), aff’d, 549 U.S. 327 (2007). The
magistrate judge concluded, however, that Daniel’s “generalized allegations that he
suffers from a mental impairment for which he has been prescribed Xanax” fall far
short of establishing equitable tolling, particularly for long enough to overcome the
fact that his petition is otherwise untimely by over 19 years. (R&R at 8). Daniel
disputes that determination on both substantive and procedural grounds.
As to substance, Daniel first claims that he is entitled to equitable tolling based
on repeated assertions that, both at the time of the killings in April 1989 and when he
pled guilty in September 1989, he was allegedly under the influence of Xanax, a brand
name for the prescription anti-anxiety drug Alprazolam. (See Doc. 9 at 4, 10, 15-19,
21). Daniel says that since before he committed the crimes, he had been taking the
medication for “mental problems” that caused him to “hav[e] delusions, hear[ ] voices
and [be] depressed.” (Id. at 10; see also id. at 4 (“Daniel was prescribed and under the
influence of Xanax while incarcerated in the Dekalb County Jail [awaiting trial]
because of hi[s] hearing voices, and seeing thing[s] which were not there.”)). Daniel
further argues that the magistrate judge’s rejection of his equitable tolling claim
“overlooks” the fact that, at the time of the killings, Daniel was not only taking Xanax
but also had been “consuming alcohol in substantial amounts.” (Id. at 15). Citing
expert testimony discussed in Lucas v. Warden, Ga. Diagnostic & Classification
Prison, 771 F.3d 785, 796 (11th Cir. 2014), and Pitonyak v. Stephens, 732 F.3d 525,
528-30 (5th Cir. 2013), Daniel posits that consuming Xanax and alcohol together
“literally drives [people] insane, it almost destroys a person[’]s reasoning, judgment,
and can cause the person to commit violent crimes.” (Doc. 9 at 16).
Such allegations, however, miss the mark because Daniel’s claim of equitable
tolling does not depend on his level of intoxication, criminal culpability, or mental
status in 1989 when he committed the murders or when he pled guilty. Rather, under
Hunter, Daniel must establish that he suffered from a substantial mental impairment
that prevented him from being able to file a timely federal habeas corpus petition. As
such, the relevant time frame for his claim of equitable tolling is the period after the
statute of limitations would have commenced running on April 24, 1996, AEDPA’s
effective date, up through, at the latest, when Daniel filed this federal habeas corpus
action on or about January 2, 2017. See Peterson v. Secretary, Fla. DOC, 631 F.
App’x 664, 666 (11th Cir. 2015) (“The only period of time relevant to our equitable
tolling analysis is ... while the statute of limitations clock was still running and there
was time left to be tolled.”); Moore v. Frazier, 605 F. App’x 863, 866-67 (11th Cir.
2015) (circumstances occurring before the limitations began to run could not justify
equitable tolling); Lugo, 750 F.3d at 1209-10 (events occurring after the limitations
period expired were not probative of the petitioner’s diligence before the limitations
So, Daniel’s burden is a heavy one because he must allege specific facts
reasonably supporting that, because of a substantial mental impairment, during no one
year period of untolled time in the 20-plus years between April 24, 1996 and January
2, 2017 could he have filed a § 2254 petition. To that end, Daniel’s claim that he was
under the influence of Xanax, alone or along with alcohol, when he killed the victims
and when he pled guilty in 1989 means little to nothing. See Smith v. Jones, 2015 WL
521067, at *10 (N.D. Fla. Feb. 9, 2015) (petitioner’s allegations that he was under the
influence of “‘heavy doses’ of antipsychotic and psychotropic medications” for
several years prior to the effective date of AEDPA could not support equitable
Rather, only allegations that bear on the time period after April 24, 1996 are
relevant. In that vein, Daniel does assert in his habeas application that, since
sometime before committing the murders in April 1989, he had suffered from “mental
problems of having delusions, hearing voices, and being depressed,” for which he had
been prescribed Xanax. (Doc. 1 at 9). That circumstance could have some probative
value, but only insofar as it might further be reasonably found both (1) that Daniel
continued to experience such mental problems into and well beyond 1996, and (2) that
his associated symptoms were so severe they materially limited his ability to file a
federal habeas petition. However, nothing in Daniel’s petition might even arguably
support either inference.
Nevertheless, the court recognizes that Daniel’s objection to the R&R does
include some allegations to the effect that he has a persistent mental impairment and
that he has experienced other obstacles to filing since going to prison. Those
allegations are as follows:
Daniel is cognitively challenged, suffers from mental disease or
defect, he is incarcerated, indigent and has been without counsel since his
convictions in State Court, and [he] is totally and completely incapable of
preparing his own petitions and pleadings pro-se (sic). Daniel has had to
rely solely and entirely upon another inmate, who out of the goodness of
his heart, agreed to prepare Daniel’s petitions and pleadings for him in
the State and Federal Courts in his case.
(Doc. 9 at 19).
In addition, the inmate who prepared Daniel’s filings, Timothy J. Richards, has
submitted a declaration under 28 U.S.C. § 1746, that similarly states in relevant part:
I am the [inmate] law clerk who has prepared Daniel’s pleading for him,
because Daniel has a mental impairment. Daniel has been in the past
prescribed with Xanax to help him cope with his mental impairment, of
having delusions and hearing voices. Daniel is also not capable of
understanding the Alabama law, [and] Daniel cannot prepare his own
pleadings.... Daniel has a hard time understanding time, moreless (sic)
(Doc. 9 at 32).
Looking at the above allegations, however, it must be recognized at the outset
that Daniel’s being “incarcerated, indigent and ... without counsel since his
convictions” are plainly not extraordinary circumstances that might support equitable
tolling. See Wakefield v. Railroad Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997);
DeLeon v. Florida DOC, 470 F. App’x 732, 734 (11th Cir. 2012); Melton v. Frazier,
2009 WL 2634114, at *6 (S.D. Ga. Aug. 26, 2009). Nor are his lack of legal training
or that he was generally ignorant of his legal rights or applicable legal procedures.
See Perez v. Florida, 519 F. App’x 995, 997 (11th Cir. 2013); Rivers v. United States,
416 F.3d 1319, 1323 (11th Cir. 2005); Cutts v. Jones, 2009 WL 230091, *6 (M.D.
Ala. Jan. 30, 2009).
Once such claims are appropriately discounted, Daniel’s remaining allegations
are conclusory and vague, particularly given that they have to plausibly support an
application of some 19-plus years of equitable tolling. That is, Daniel says that he is
“cognitively challenged” to some unspecified degree, and that he has some “mental
disease or defect” or “mental impairment” unattached to any named diagnosis or
condition. Daniel nonetheless claims that such impairment has led him, on otherwise
unspecified occasions, to have “delusions” and “hear voices,” causing some
unidentified health care provider(s) to prescribe Xanax, both at sometime prior to the
killings in April 1989 and while he was in jail awaiting trial in September 1989. But,
as the magistrate judge observed, that Daniel was prescribed Xanax does not itself
reasonably support that he suffers from a substantial mental impairment that would
have prevented him from filing a federal habeas petition for over 19 years. See
Robinson v. Director, TDCJ-CID, 2015 WL 2394096, at *4 (E.D. Tex. May 18, 2015)
(“The fact that Robinson was one of the millions of people who take Zoloft or Xanax
is not an extraordinary circumstance [necessary for equitable tolling of the limitations
period].”); United States v. Campellone, 2008 WL 4889542, at *5 (E.D. Pa. Nov. 12,
2008) (denying equitable tolling, explaining, “There is no indication that simply
because [the petitioner] was taking prescription Xanax and was ‘stressed’ that she was
unable to timely file her petition.”).
Moreover, neither Daniel nor Richards specifically alleges that in the 28-or-so
years since Daniel pled guilty that he has been prescribed Xanax or any other
medication, received treatment, or even been evaluated for the alleged problem. In
fact, Richards’s statement that Daniel “has been in the past prescribed with Xanax”
clearly implies that, to Richards’s knowledge, it is no longer prescribed and that
Daniel does not continue to take any medication otherwise for the issue.
Finally, Daniel and Richards also allege in rather cursory fashion that Daniel is
not capable of understanding the law or preparing legal filings on his own. But again,
the fact that a habeas petitioner is unaware of his legal rights or has trouble following
legal procedures by himself is not generally cause for equitable tolling. See Perez,
519 F. App’x at 997; Rivers, 416 F.3d at 1323; Cutts, 2009 WL 230091, at *6.
Furthermore, Daniel and Richards’s allegations on this score are largely belied by the
fact that Daniel evidently has been able to recount and articulate to Richards the
details not only of Daniel’s crimes as he ostensibly remembers them but also of the
procedural history of his entire case in the Alabama state trial and appellate courts,
from arrest and indictment through his unsuccessful collateral appeal. Indeed, it is
clear that Daniel was capable of having filed this federal habeas action more than one
year before he actually did so on or about January 2, 2017.
That is so because Daniel acknowledges that, on October 15, 2015, he filed a
pro se petition in the state trial court seeking post-conviction relief under Rule 32,
ALA. R. CRIM. P., raising the same claims as in this federal habeas action. (Doc. 1 at
10-11). When that application was summarily denied, he timely appealed to the
Alabama Court of Criminal Appeals. (Id. at 11-12). And after that appeal failed, he
filed an application for rehearing and then a certiorari petition in the Alabama
Supreme Court, which denied review on October 14, 2016. (Id. at 12).
These circumstances demonstrate that Daniel cannot establish that his alleged
mental impairment prevented him from being able to timely file a federal habeas
action. See Fox v. McNeil, 373 F. App’x 32, 34 (11th Cir. 2007) (holding that alleged
mental incompetence did not warrant equitable tolling where petitioner was able to
file several pro se motions in state court for post-conviction relief and he ultimately
filed a federal habeas petition); Bell v. Secretary, DOC, 248 F. App’x 101, 104 (11th
Cir. 2007) (holding that the petitioner failed to establish equitable tolling based on an
alleged inability to access the prison law library where he had been able to file three
pro se motions for post-conviction relief in state court during the relevant time
Daniel also argues that the R&R’s rejection of his equitable tolling claim is
flawed on procedural grounds. First, Daniel contends that the magistrate judge failed
to acknowledge that, under the Supreme Court’s decision in Holland, “§ 2244(d)’s
statute of limitation is normally subject to a presumption in favor of equitable tolling.”
(Doc. 9 at 9 (emphasis original)). However, Daniel’s stated premise does not
accurately reflect the law. The burden to plead and then prove specific facts
establishing the elements of equitable tolling lies squarely with the petitioner. Lugo,
750 F.3d at 1209. While Holland recognizes “that there is a general presumption that
non-jurisdictional federal statutes of limitations are subject to equitable tolling...,
Holland does not suggest that federal courts should presume that a specific petitioner
is entitled to equitable tolling.” Spears v. Warden, 605 F. App’x 900, 903 n. 2 (11th
Daniel also argues that the magistrate judge’s determination of the equitable
tolling issue is premature on procedural grounds because it was made (1) without an
evidentiary hearing, (2) without the State being ordered to answer or provide relevant
portions of the state court record, and (3) without affording Daniel an opportunity to
amend his petition. (Doc. 9 at 10-15). None of these objections is valid. Again,
Daniel bears the burden to plead specific facts sufficient to indicate that equitable
tolling is not only warranted but also for a long enough period to render his federal
habeas petition timely. And at this stage of the proceedings, Daniel’s well-pled, i.e.,
non-conclusory, factual allegations are simply accepted as true; he need not yet
support them with evidence, from the state court record or otherwise. See Bundy v.
Wainwright, 808 F.2d 1410, 1414-15, 1421 (11th Cir. 1987).
So unless and until Daniel alleges facts that would warrant equitable tolling that
would save him from a statute-of-limitations dismissal, he is not entitled to an
evidentiary hearing on the issue. See Hutchinson, 677 F.3d at 1099; Chavez, 647 F.3d
at 1060-61; Spears, 605 F. App’x at 905. Nor is he entitled, in the absence of having
made such factual allegations, to a copy of the state court record in the mere hope that
it will contain documentation supporting his claim. See Bundy, 808 F.2d at 1414-15
(recognizing that, under Rule 4 of the Rules Governing § 2254 Habeas Proceedings, a
district court is authorized to summarily dismiss a petition that is facially deficient
without requiring the State to respond or provide the state court record); Hansen v.
United States, 956 F.2d 245, 248 (11th Cir. 1992) (“[A] prisoner is entitled to access
to the court files [in his criminal case] only after he has made a showing that such files
are necessary to the resolution of an issue or issues he has presented in a non-frivolous
pending collateral proceeding.”); Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir.
1975)3 (“Appellant is not entitled to a free copy of his transcript and record to search
for possible trial defects merely because he is an indigent”).
Daniel also complains that he was not given a chance to amend his habeas
petition to include additional facts in support of equitable tolling before the magistrate
judge made his recommendation. However, Daniel has been given a full and fair
opportunity to allege any such facts as he can in his objections to the R&R, which
have been considered here by the court. See Day, 547 U.S. at 210-11; Campos v.
The decisions of the United States Court of Appeals for the Fifth Circuit handed down
before October 1, 1981 are binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981) (en banc).
United States, 2016 WL 6821134, at *1 n. 5 (N.D. Ga. Aug. 10, 2016), report and
recommendation adopted, 2016 WL 6805305 (N.D. Ga. Nov. 15, 2016). All of
Daniel’s equitable tolling arguments are without merit.
Daniel next objects to the R&R’s determination that he is not entitled to have
his time-barred claims heard on their merits on the ground that he is allegedly
innocent. (Doc. 9 at 19-22). AEDPA’s statute of limitations is subject to a
“fundamental-miscarriage-of-justice” exception, whereby the time-bar can be
overcome by a credible showing by the petitioner that he is actually innocent.
McQuiggin v. Perkins, 569 U.S. 383, 392-94 (2013).
Under that exception, “prisoners asserting innocence as a gateway to defaulted
claims must establish that, in light of new evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”
House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513 U.S. 298,
327 (1995)). The district court considers all of the evidence in the case, new and old,
exculpatory and inculpatory, to make “a probabilistic determination about what
reasonable, properly instructed jurors would do.” Id. (quoting Schlup, 513 U.S. at
329)). The timing of the submission of new evidence offered by the petitioner is
relevant, as is the likely credibility of the affiants. Sibley v. Culliver, 377 F.3d 1196,
1206 (11th Cir. 2004).
To open a gateway to consideration of his substantive claims, Daniel says he is
actually innocent of one or both of the murder counts to which he pled guilty. In
support, Daniel now claims he did not intentionally kill anyone. In particular, he
recounts that he was driving on the date in question, highly intoxicated on a cocktail
of Xanax and alcohol when he became agitated. He says he stopped his vehicle, took
out a shotgun he had with him and fired a blast into what he thought was an
abandoned cave. It was not until days later, he says, that he found out he had killed
two people in the cave with that single blast. In addition to telling that story of his
incredibly bad luck, he says that, at a minimum, he was so under the influence of the
Xanax and alcohol that he was prevented from forming the specific intent to kill, a
necessary element of intentional murder under Ala. Code § 13A-6-2(a). (Doc. 9 at
21). Finally, he asserts that since he killed both victims with a single shotgun blast,
“even if by some stretch of the imagination [he] had the intent to kill one of the people
..., he is actually innocent of intentionally killing the second person who happened to
be hit by the spread of the shot ....” (Id. at 21-22 (emphasis original)).
These arguments are unconvincing. First, the only proof that Daniel cites in
support of his claim of innocence is extremely weak on its face, amounting merely to
his own self-serving, uncorroborated assertions, made more than 25 years after the
fact, that he lacked an intent to kill. See Anderson v. Mitchem, 2012 WL 6186340, at
*1 (N.D. Ala. Dec. 12, 2012) (“Anderson’s mere denial that he ‘intentionally’ killed
the victim is insufficient to show that he is actually innocent of the murder charge to
which he pled guilty.”); Kuenzel v. Allen, 880 F. Supp. 2d 1162, 1181 (N.D. Ala.
2009) (“In short, a petitioner’s own insistence on his innocence should not sway the
habeas court.”), aff’d sub nom. Kuenzel v. Commissioner, Ala. DOC, 690 F.3d 1311
(11th Cir. 2012).
Second, even if it were otherwise factually plausible, Daniel’s claim of
intoxication based on his misuse of alcohol and prescription medication is legally
insufficient to establish the miscarriage-of-justice exception in this Circuit. Under
Alabama law, voluntary intoxication is not a complete defense to a criminal charge,
but it can mitigate culpability, authorizing a conviction for manslaughter rather than
intentional murder, where the jury finds that the defendant’s intoxication prevented
him from forming the specific intent to kill. See Ex parte McWhorter, 781 So. 2d 330,
340–41 (Ala. 2000); Lam Luong v. State, 199 So. 3d 173, 199-200 (Ala. Crim. App.
2015). However, as the magistrate judge recognized, under the law of this circuit,
Daniel cannot establish McQuiggin’s actual innocence exception by showing merely
that he is guilty of only a lesser degree of homicide. See Rozzelle v. Secretary, Fla.
DOC, 672 F.3d 1000, 1015 (11th Cir. 2012); Sims v. Carter, 2014 WL 5419328, *4
(M.D. Ala. Oct. 22, 2014).
Daniel’s suggestion that he must be actually innocent of at least one of the
murder charges since he killed both victims with a single gunshot is also specious.
That is, under the doctrine of transferred intent, if Daniel was found to have intended
to kill only one victim, he would be guilty of murder not only as to that victim but also
as to any bystander killed inadvertently. See Ala. Code § 13A-6-2(a)(1) (“A person
commits the crime of murder if he ..., [w]ith intent to cause the death of another
person, he ... causes the death of that person or of another person.” (emphasis added);
Living v. State, 796 So. 2d 1121, 1131 (Ala. Crim. App. 2000) (“Under the doctrine of
transferred intent, ... if [the defendant] intended to kill [one victim] he would be
criminally culpable for murder with regard to the unintended death of [the other
victim].”); McKinney v. State, 511 So. 2d 220, 225 (Ala. 1987) (Alabama state law
authorizes multiple convictions based on a single act that results in injury or death to
multiple victims); Brooks v. State, 973 So. 2d 380, 406 (Ala. Crim. App. 2007) (“Both
robbery and murder are crimes against the person, and they both ... allow multiple
convictions [under McKinney] when multiple victims are involved.”); Lewis v.
Richards, 2017 WL 2539836, at *5 (N.D. Ohio Apr. 17, 2017), report and
recommendation adopted, 2017 WL 2538582 (N.D. Ohio June 9, 2017); Miller v.
Clarke, 2017 WL 2313011, at *3 (E.D. Va. Apr. 28, 2017), report and
recommendation adopted, 2017 WL 2312939 (E.D. Va. May 26, 2017); Devine v.
Diguglielmo, 2004 WL 945156, at *4 (E.D. Pa. Apr. 30, 2004). This objection is due
to be overruled.
In his final set of arguments, Daniel challenges statements in the R&R
recognizing that, even assuming that his Fifth Amendment double-jeopardy claim and
an associated ineffective-assistance-of-counsel claim were not time barred, they are
meritless. (Doc. 9 at 22-29). In short, Daniel insists that his two murder convictions
violate double jeopardy because he allegedly killed both of his victims with a single
shotgun blast. The magistrate judge disagreed, explaining that Daniel’s double
jeopardy claim was foreclosed because Alabama state law authorizes multiple murder
convictions based on a single act that results in death to multiple victims. (See R&R
at 11 (citing McKinney, 511 So. 2d at 225; Missouri v. Hunter, 459 U.S. 359, 366
(1983); Arrowood v. McNeil, 2008 WL 817074, at *20–21 (N.D. Fla. Mar. 25, 2008),
report and recommendation adopted, 2008 WL 1735387 (N.D. Fla. Apr. 15, 2008)).
As a threshold matter, the court would note that even assuming for the sake of
argument that Daniel were correct that these claims are meritorious, he still would not
be entitled to relief based on them because they are untimely, as explained above.
Nevertheless, Daniel, not the magistrate judge, is wrong in his estimation of the these
claims. Daniel first argues that the magistrate judge erred because his rejection of the
double jeopardy claim purportedly relied only upon Alabama state law, rather than
federal law. (See Doc. 9 at 23). True, the “federal courts, and not the state courts, are
the final arbiters of the scope of federal constitutional rights,” and that state courts
“may not derogate federal protection for double jeopardy based on [state law].” Mars
v. Mounts, 895 F.2d 1348, 1352 (11th Cir. 1990). However, the R&R’s brief
discussion of double jeopardy cited not only the Alabama Supreme Court’s opinion in
McKinney but also federal court decisions, including one from the United States
Supreme Court. (See R&R at 11).
In any event, “the question of what punishments are constitutionally permissible
is not different from the question of what punishments the Legislative Branch
intended to be imposed.” Albernaz v. United States, 450 U.S. 333, 344 (1981); see
also United States v. Davis, 656 F.2d 153, 157 (5th Cir. Sept. 14, 1981) (“[I]f we find
that Congress intended multiple sentences to be imposed for simultaneous possession
of different types of drugs, any question of violation of the double jeopardy clause is
foreclosed.”). To that end, the magistrate judge correctly recognized that Alabama
law authorizes multiple murder convictions and punishments where a single criminal
act kills two or more victims. See McKinney, 511 So. 2d at 223-25; Brooks, 973 So.
2d at 406 (“Both robbery and murder are crimes against the person, and they both ...
allow multiple convictions [under McKinney] when multiple victims are involved.”).
Contrary to Daniel’s suggestion, the Double Jeopardy Clause of the Fifth Amendment
does not prohibit the States from so construing their criminal statutes. See Miller v.
Turner, 658 F.2d 348, 350 (5th Cir. Unit B Oct. 5, 1981)4; Hall v. Wainwright, 493
F.2d 37, 38-39 (5th Cir. 1974); Gentry v. MacDougall, 685 F.2d 322, 323 (9th Cir.
1982); Arrowood, 2008 WL 817074 at *20-21.
Daniel also insists that his double jeopardy rights were violated on the theory
that his two murder convictions are for a greater offense and a lesser-included offense
based on the same conduct. Daniel highlights that he was originally indicted for
capital murder under Ala. Code § 13A-5-40(a)(10), which applies where “two or more
persons are murdered by the defendant by one act or pursuant to one scheme or course
of conduct.” Daniel says that the prosecutor subsequently “took it upon himself to
change Daniel’s charges by splitting up a single crime” into two counts of intentional,
non-capital murder under Ala. Code § 13A-6-2(a)(1). Daniel then pled guilty to those
two charges, for which he received two consecutive life sentences. In support of his
assertion that those convictions violate double jeopardy, Daniel characterizes his case
Published decisions “made by a non-unit panel of the Former Fifth, the full en banc court
of the Former Fifth, or Unit B panel of the Former Fifth Circuit” are binding precedent in the
Eleventh Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).
as presenting the “same issue” as Borden v. State, 711 So. 2d 493 (Ala. Crim. App.
1997), aff’d, 711 So. 2d 506 (Ala. 1998), in which the Alabama Court of Criminal
Appeals held that defendant could not be convicted of both capital murder under §
13A-5-40(a)(10) and intentional murder under § 13A-5-6(a)(1) where the victim on
the latter charge was also one of the two victims on the former. 711 So. 2d at 502-04.
(Doc. 9 at 25).
Daniel’s reliance on Borden is wholly misplaced. That court concluded that the
defendant’s convictions violated double jeopardy because the capital offense of
intentionally killing two victims in one course of conduct encompassed all of the
elements of the non-capital offense of intentionally killing of one of those same
victims. Borden, 711 So. 2d at 502-04; see also Heard v. State, 999 So. 2d 992, 100809 (Ala. 2007); Blockburger v. United States, 284 U.S. 299 (1932). That principle
does not aid Daniel, however, because, while he was indicted on one count of capital
murder based on the killing of two victims under § 13A-5-40(a)(10), he was never
convicted of that offense, unlike the defendant in Borden. Instead, Daniel stands
convicted on two counts of non-capital, intentional murder under Ala. Code § 13A-62(a)(1), each of which is based on the killing of a different victim. As such, neither
murder conviction is an included offense of the other, so there is no double jeopardy
problem. See Miller, supra.
Having carefully reviewed and considered de novo all the materials in the court
file, including the magistrate judge’s Report and Recommendation and the Petitioner’s
Objections to it, the court agrees that the magistrate judge’s findings are due to be and
are hereby ADOPTED and his recommendation is ACCEPTED. Petitioner’s
Objections are OVERRULED.
As a result, the petition for writ of habeas corpus is due to be DENIED and this
action will be DISMISSED WITH PREJUDICE. Further, 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 Order will be entered.
DONE and ORDERED this 13th day of March, 2018.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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