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Curry v. Phillips

United States District Court, W.D. Tennessee, Eastern Division

September 27, 2019

JORDAN CURRY, Petitioner,



         Petitioner Jordan Curry has filed a pro se habeas corpus petition (the “Petition”), pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the reasons that follow, the Petition is DENIED.[1]


         In 2012, a Madison County, Tennessee, grand jury charged Curry with two counts of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, and one count of evading arrest. (ECF No. 8-1 at 24-33.) His co-defendants, Grico Clark and Deangelo White, were similarly charged, except that “White was also charged with one count of possession of more than one-ounce of marijuana with intent to sell and one count of possession of one-half ounce of marijuana with intent to deliver.” State v. Clark, et al., No. W2012-02666-CCA-R3CD, 2014 WL 505501, at *1 (Tenn. Crim. App. Feb. 7, 2014), perm. to appeal denied (Tenn June 20, 2014) (“Curry I”). The defendants were tried together. Id. at *1.

         At the jury trial, the victims, Shannell Henning and Leon Jackson, testified that the defendants accosted them around 2:00 a.m. on July 11, 2011, as they were making their way to Henning’s apartment in Jackson, Tennessee. Id. at *1. “[A]t least two of [the men] were armed, ” and “[o]ne of the[m] informed Ms. Henning and Mr. Jackson at gunpoint that they were being robbed.” Id. They “ordered the victims to walk toward their apartment or they would be killed.” Id. Once inside the apartment, the men “ordered Ms. Henning to sit on the floor” and they took “Mr. Jackson . . . to the kitchen where [they] took his money, and Curry restrained him by duct-taping him to the kitchen chair.” Id. at *2. When “Curry stated he would kill Ms. Henning, ” she “felt the need to formulate some type of plan to get out of the apartment to safety.” Id. She convinced White and Clark that she had more money “down the street in another apartment.” Id. White and Clark then “took Ms. Henning out of her apartment at gunpoint, escorting her to her car.” Id. Henning was held at gunpoint during the five minutes it took for her to drive to the other apartment. Id. “When they arrived at the apartment, White and Clark gave Ms. Henning five minutes to go inside and return with money or they would ‘shoot up’ the apartment.” Id. Once inside, “she immediately called the police.” Id. “Both White and Clark were eventually apprehended by police after a foot chase.” Id. “White was found with about twenty-five grams of marijuana in his pocket.” Id.

         During the time that Clark, White, and Henning were en route to the other apartment, Curry “continued to search for money and when he found none, he hit Mr. Jackson in the head.” Id. After receiving a phone call, he attempted to escape the vicinity, but was captured by the police. Id. The police found that Curry “was armed with an assault rifle, complete with a clip containing extra rounds, ” and that he “was wearing latex gloves and had about $550 in cash and Ms. Henning’s EBT card in his possession.” Id. The police found “Jackson . . . duct-taped to a chair inside the apartment.” Id.

         The defendants were convicted of two counts each of especially aggravated kidnapping, two counts of aggravated robbery, one count of aggravated burglary, and one count of evading arrest. Id. at *3. Curry and Clark were also convicted of one count each of employing a firearm during the commission of a dangerous felony. Id. The jury found White “not guilty of the firearm charge, ” and “convicted [him] of simple possession of marijuana.” Id.

         Curry and Clark each received “a total effective sentence of forty-four years, ” and White “a total effective sentence of twenty years.” Id. The direct appeals were consolidated, and the Tennessee Court of Criminal Appeals affirmed the judgments. Id. at *1, 11.

         Curry filed a pro se post-conviction petition in state court (ECF No. 8-16 at 3-18), which was amended by appointed counsel (id. at 27-31). Following an evidentiary hearing, the post-conviction trial court denied relief (id. at 46-47), and the TCCA affirmed, Curry v. State, No. W201500709CCAR3PC, 2015 WL 9259961, at *1 (Tenn. Crim. App. Dec. 17, 2015), perm. to appeal denied (Tenn. Apr. 7, 2016) (“Curry II”).


         In August 2016, Curry filed his Petition (ECF No. 1) and a supporting memorandum (ECF No. 1-1). He asserts that the evidence was insufficient to convict him of aggravated robbery and aggravated kidnapping (Claim 1), that his trial counsel was ineffective by failing to file a motion to sever his case from that of his co-defendants (Claim 2), and that the State should have been required to elect offenses.[2] (ECF No. 1 at 5, 7, 8.) Respondent, Shawn Phillips, filed the state-court record (ECF No. 8) and his Answer (ECF No. 9) to the Petition, to which Curry filed a Reply (ECF No. 12). Respondent argues that Claims 1 and 2 are without merit, and that Claim 3 is not properly before the Court. Curry maintains that all of his claims should be addressed in this federal habeas proceeding, and that all have merit.

         I. Legal Standards

         A. Habeas Review and Procedural Default

         The statutory authority for federal courts to issue habeas corpus relief for persons in state custody is provided by § 2254, as amended by the Antiterrorisim and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. Under § 2254, habeas relief is available only if the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         The availability of federal habeas relief is further restricted where the petitioner’s claim was “adjudicated on the merits” in the state courts. 28 U.S.C. § 2254(d). In that circumstance, the federal court may not grant relief unless the state-court decision “‘was contrary to’ federal law then clearly established in the holdings of [the Supreme] Court; or that it ‘involved an unreasonable application of’ such law; or that it ‘was based on an unreasonable determination of the facts’ in light of the record before the state court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)-(2)) (citations omitted)).

         A state court’s decision is contrary to federal law when it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law, ” or when “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at” an “opposite” result. Williams v. Taylor, 529 U.S. 362, 405 (2000). An unreasonable application of federal law occurs when the state court, having invoked the correct governing legal principle, “unreasonably applies the . . . [principle] to the facts of a prisoner's case.” Id. at 409.

         For purposes of § 2254(d)(2), a state court’s “factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Sixth Circuit construes § 2254(d)(2) in tandem with § 2254(e)(1) to require a presumption that the state court’s factual determination is correct in the absence of clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). A state court’s factual findings are therefore “only unreasonable where they are ‘rebutted by clear and convincing evidence and do not have support in the record.’” Moritz v. Woods, 692 Fed.App’x 249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks omitted).

         Before a federal court will review the merits of a claim brought under § 2254, the petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To be properly exhausted, a claim must be “fairly presented” through “one complete round of the State's established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999).

         The exhaustion requirement works in tandem with the procedural-default rule, which generally bars federal habeas review of claims that were procedurally defaulted in the state courts. Id. at 848. A petitioner procedurally defaults his claim where he fails to properly exhaust available remedies (that is, fails to fairly present the claim through one complete round of the state's appellate review process), and he can no longer exhaust because a state procedural rule or set of rules have closed-off any “remaining state court avenue” for review of the claim on the merits. Harris v. Booker, 251 F.App'x 319, 322 (6th Cir. 2007). Procedural default also occurs where the state court “actually . . . relied on [a state] procedural bar as an independent basis for its disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). To cause a procedural default, the state court’s ruling must “rest[] on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Klinger v. Missouri, 80 U.S. 257, 263 (1871)).

         Only when the petitioner shows “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claim[] will result in a fundamental miscarriage of justice, ” will he be entitled to federal court review of the merits of a claim that was procedurally defaulted. Id. at 750. The ineffectiveness of post-conviction counsel may be cause to excuse the default of an ineffective-assistance-of-trial-counsel claim. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 14, 16-17 (2012)). A fundamental miscarriage of justice involves “a prisoner[‘s] assert[ion of] a claim of actual innocence based upon new reliable evidence.” Bechtol v. Prelesnik, 568 F.App'x 441, 448 (6th Cir. 2014).

         B. Insufficiency of the Evidence

         The Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), provides the federal due process standard for evidentiary sufficiency in criminal cases. See Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (holding Jackson applies to sufficiency-of-the-evidence claims on habeas review under § 2254(d)). In Jackson, the Supreme Court announced that “the relevant question” “on review of the sufficiency of the evidence to support a criminal conviction, ” is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19 (emphasis in original).

         The Jackson standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to ultimate facts.” Id. at 319. See also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (holding that, under Jackson, “it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.”). Jackson’s evidence-sufficiency standard may be met with circumstantial evidence. See Desert Palace, Inc., v. Costa, 539 U.S. 9, 100 (2003) (“[W]e have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”); see also United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010) (“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”).

         The AEDPA adds a layer of deference to Jackson’s already deferential standard. By virtue of the AEDPA’s command that federal habeas relief may issue only if the state court’s decision is “contrary to” controlling federal law or “based on an unreasonable application” of the controlling federal law, 28 U.S.C. § 2254(d)(1)-(2), a state court determination that the evidence satisfied the deferential Jackson ...

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