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Curry v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

October 3, 2016

KEVIN L. CURRY, Petitioner,



         This matter is before the Court on the: (1) 28 U.S.C. § 2254 Habeas Corpus Petition by a Person in State Custody, filed by Kevin L. Curry, a pro se prisoner, on January 8, 2016; and (2) Motion to Object to the Respondent's Submission of the State Court Record, also filed by Kevin L. Curry, on July 11, 2016. For the reasons set forth below, the Court: (1) DISMISSES WITH PREJUDICE the Petition (DE 20); (2) DENIES the motion to object (DE 30); and (3) DECLINES to issue a certificate of appealability.


         Curry is serving a 44-year sentence for being convicted on one count of corrupt business influence, fifteen counts of forgery, and his adjudication as a habitual offender, in State v. Curry, 20D02-0907-FC-0096. In deciding the petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Curry's burden to rebut this presumption with clear and convincing evidence. Id. On appeal from the denial of post-conviction relief, the Indiana Court of Appeals summarized the facts underlying Curry's offenses as follows:

Curry created, forged, and cashed checks by using other individuals to present the checks for cashing as purported payroll checks. In each instance, after cash was obtained, Curry split the sum with the presenter of each false check. On July 1, 2009, the State charged Curry with one count of Class C felony corrupt business influence and fifteen counts of Class C felony forgery. Curry v. State, No. 20A03-1008-CR-454, slip op. at 4 (Ind.Ct.App. May 31, 2011), trans. denied. Attorney Mark Manchak represented Curry from August 2009 until November 2009, when Curry elected to proceed pro se. Manchak served as standby counsel from November 23, 2009, through January 2010. On January 27, 2010, the State filed an amended information, adding a habitual offender count. Attorney James Stevens entered his appearance for Curry on February 19, 2010. On June 24, 2010, a jury found Curry guilty on Counts I through XVI and subsequently found him guilty on the habitual offender count.
On direct appeal, Curry raised several issues: (1) the denial of his motion for a directed verdict; (2) the sufficiency of the evidence; (3) the belated amendment of the charging information to include an habitual offender enhancement; and (4) the appropriateness of his sentence. [The Indiana Court of Appeals] remanded for clarification of his sentence but affirmed in all other respects. [The Indiana] Supreme Court denied transfer [on October 11, 2011]. Ex. C.
In April 2012, Curry filed a petition for post-conviction relief, which he later amended. He raised three issues: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) prosecutorial misconduct. After a hearing, the post-conviction court denied Curry's petition except with respect to his ineffective assistance of appellate counsel argument regarding his habitual offender enhancement. The post-conviction court ordered a new trial regarding the habitual offender enhancement.

Curry v. State, Cause Number 20A03-1312-PC-513, slip op. 2-3 (Ind.Ct.App. Aug. 11, 2014) (DE 25-12, attached as Ex. L.)

         Curry appealed from the denial of post-conviction relief regarding his ineffective assistance of trial counsel claims. (DE 25-9, attached as Ex. I.) The Indiana Court of Appeals affirmed the denial of post-conviction relief, finding that his trial counsel was not ineffective. (EX. L.) Curry sought transfer to the Indiana Supreme Court, (DE 25-13, attached as Ex. M), which was denied (DE 25-4, attached as Ex. D).

         Pursuant to the grant of post-conviction relief, Curry was retried on the habitual offender count and was again convicted on that charge. On appeal from that re-trial, Curry challenged the propriety of the evidence admitted at trial, the sufficiency of the evidence, and whether the trial court erred by allowing the State to add the habitual offender enhancement. (DE 25-16 at 2, attached as Exhibit P.) The Indiana Court of Appeals affirmed his habitual offender adjudication, (DE 25-17, attached as Ex. Q), and the Indiana Supreme Court ultimately denied transfer (DE 25-20, attached as Ex. T).

         Curry initiated federal habeas proceedings on November 26, 2014, and filed a second amended petition on January 8, 2016, claiming: (1) that both his retained trial counsel and standby counsel provided ineffective assistance; (2) the evidence was insufficient to support the habitual offender enhancement; and (3) that the State did not present sufficient evidence to support his conviction under the Indiana Corrupt Business Influence statute. (DE 20 at 3-8.)


         Curry's petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court can grant an application for habeas relief if it meets the requirements of 28 U.S.C. § 2254(d), which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         Under this deferential standard, a federal habeas court must “attend closely” to the decisions of state courts and “give them full effect when their findings and judgments are consistent with federal law.” Williams v. Taylor, 529 U.S. 362, 383 (2000). A state court decision is contrary to federal law if the state court arrives at a conclusion opposite to that reached by the U.S. Supreme Court or reaches an opposite result in a case involving facts materially indistinguishable from relevant U.S. Supreme Court precedent. Bell v. Cone, 535 U.S. 685, 694 (2002). A federal court may grant habeas relief under the “unreasonable application” clause if the state court identifies the correct legal principle from U.S. Supreme Court precedent but unreasonably applies that principle to the facts of the petitioner's case. Wiggins v. Smith, 539 U.S. 510, 520 (2003). To warrant relief, a state court's decision must be more than incorrect or erroneous; it must be “objectively” unreasonable. Id. This is a difficult standard to meet, and “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, -U.S.-, 131 S.Ct. 770, 786 (2011). Instead, to obtain relief, a petitioner must show the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87.

         A. Ineffective Assistance of Counsel

         Curry raises three separate ineffective assistance of counsel claims. In claims one and two, Curry asserts that his retained trial counsel, Attorney James Stevens, provided ineffective assistance. (DE 20 at 3-4.) In claim three, Curry asserts that his standby counsel provided ineffective assistance. “The Sixth Amendment entitles criminal defendants to the ‘effective assistance of counsel'---that is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms.” Bobby v. Van Hook, ____U.S.____, 130 S.Ct. 13, 16 (2009).

         The governing Supreme Court case for resolving an ineffective assistance claim is Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced him. The court's review of counsel's performance is “highly deferential, ” and the petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004). The prejudice prong requires the petitioner to show that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Where it is expedient to do so, a court may resolve an ineffective assistance claim solely on the prejudice prong; in other words, where the petitioner cannot establish prejudice, there is no need to consider in detail whether counsel's performance was constitutionally deficient. See Strickland, 466 U.S. at 697; Watson v. Anglin, 560 F.3d 687, 689-90 (7th Cir. 2009).

         Here, in rejecting all three of Curry's ineffective assistance claims, the Indiana Court of Appeals properly identified Strickland as the governing standard. (See Ex. L at 4.) Of course, this Court's review of the state court's application of Strickland is not de novo. This review is limited to whether the state appellate court's determination that Curry was not denied effective assistance of counsel “was contrary to, or involved an unreasonable application of” Strickland. Richter, 131 S.Ct. 788. Accordingly, the question for this court is whether the appellate court's resolution of the claims was unreasonable.

         Counsel's health

         In ground one, Curry claims that his trial counsel's performance was detrimentally affected by his health. On February 19, 2010, Attorney Stevens entered his appearance to represent Curry in his criminal case. (Trial App. at 13, 146). Attorney Stevens moved to continue the scheduled March 9, 2010, trial. (Trial App. at 145.) The continuance was granted and a jury trial commenced on June 22, 2010, and ended with the jury finding Curry guilty as charged on June 24, 2010. (Trial App. at 15-16, 144; Trial Tr. 487-88, 411.) Attorney Stevens died of pancreatic cancer on December 31, 2010. (PCR Tr. at 9; PRC Ex. 5c.)

         Curry points out that Stevens died of pancreatic cancer a few months after the trial and argues that Steven's health must have impaired his performance at trial. The appellate court rejected Curry's ineffective assistance claim pertaining to his counsel's health and untimely passing, finding that Curry presented no evidence at the post-conviction proceedings to support his claim. (Ex. J at 7.) This determination was not unreasonable. Upon review, the only witness Curry called at the post-conviction hearing concerning Attorney Stevens' health was Rowena Gutierrez. She testified that she was a licensed practical nurse and had worked with cancer patients in the past. (PCR Tr. at 57-58.) During the trial, she observed that Attorney Stevens had lost some weight. However, she admitted that she did not have any professional medical contact with ...

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