United States District Court, W.D. Tennessee, Eastern Division
ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING
§ 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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
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,
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
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. (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
Habeas Review and Procedural Default
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).
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)).
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.
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).
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).
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)).
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).
Insufficiency of the Evidence
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).
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.”).
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 ...