Curry v. Superintendent

Filing 32

OPINION AND ORDER DISMISSING WITH PREJUDICE 20 PETITION (Amended) for Writ of Habeas Corpus by Petitioner Kevin L Curry; DENYING 30 MOTION to Object to the Respondent's Submission of the State Court Record by Petitioner Kevin L Curry. The Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 10/3/16. (cc: Kevin L Curry). (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN L. CURRY,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:14-CV-2046

OPINION AND ORDER
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.

BACKGROUND
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, 20D020907-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 postconviction 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.)

2

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

3

conviction under the Indiana Corrupt Business Influence statute.
(DE 20 at 3-8.)

DISCUSSION
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
4

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

fairminded disagreement.” Id. at 786-87.

5

any

possibility

for

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

6

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

7

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 Attorney Stevens as a patient. (Id. at 60.)
Because there is no evidence in the record that Attorney Stevens’
health adversely affected his representation of Curry, the state
appellate court’s finding was not unreasonable.

Failure to call witnesses
In ground two, Curry claims Attorney Stevens was ineffective
for failing to call various defense witnesses. The Indiana Court of

8

appeals rejected this ineffective assistance claim, finding that
Curry presented no evidence at the post-conviction proceedings to
support his claim. Specifically, the court of appeals found that
Curry had not established any resulting prejudice:
As for Stevens’s failure to call witnesses, Curry
identifies Rowena Gutierrez, Dannell Brown, Rachel
Koontz, Tracy Curry, and Thurman Curry as witnesses that
should have been called. Curry was required to
demonstrate what those witnesses would have testified to
and how he was prejudiced by the failure to call the
witnesses. Of those, only Gutierrez testified as the
post-conviction hearing. She testified only that she was
a licensed practical nurse and had worked with cancer
patients. There was no evidence presented concerning what
those witnesses would have testified to at the trial.
Curry has failed to demonstrate that Stevens’s
performance was deficient due to his failure to call
witnesses at trial or that he was prejudiced by the
alleged deficiency.
(Ex. L at 7.) Based on the record, this determination was not
unreasonable. To satisfy the prejudice prong, Curry must establish
that, if Attorney Stevens called these witnesses at trial, there
would have been “a reasonable probability that . . . the result of
the proceeding would have been different.” Strickland, 466 U.S. at
694. This Curry failed to do. In undertaking this inquiry, the
court considers “the totality of the evidence before the judge or
jury. A verdict or conclusion that is overwhelmingly supported by
the record is less likely to have been affected by errors than one
that is only weakly supported by the record.” Hough v. Anderson,
272 F.3d 878, 891 (7th Cir. 2001) (citations omitted). As the court

9

of appeals points out, the evidence against Curry was rather strong:
On November 1, 2008, Curry went to Martin’s
Supermarket (Martin’s”) and attempted to cash a check.
However, because he had previously cashed a counterfeit
check there, an alert had been placed on his name, and
the clerk refused to cash the current check. Instead, she
notified her manager. Curry explained to the manager that
he had received both checks as donations to his boxing
club. The manager notified police, and Curry subsequently
entered into a repayment arrangement with Martin’s.
On November 19, 2008, Curry approached longtime
friend Kim Kie and asked her to cash some counterfeit
payroll checks that he made. Kie was a drug user at the
time. Curry drove her to Martin’s and gave her a
purported payroll check and a business card from J.R.
Cleaning Service (“J.R.’s”). Kie successfully cashed the
false check, and the two split the money. The next day,
they successfully repeated the process at a different
Martin’s location, again with a purported payroll check
made out to Kie by J.R.’s.
Thereafter, Curry made a counterfeit payroll check
from Ancon Construction Company, payable to Kie. Kie gave
the check to an elderly disabled woman named Martha
George to hold, in exchange for which Martha withdrew
money from her savings account and gave it to Kie. That
same week, Curry and Kie repeated the process with a
check
purportedly
from
Ameritrans
Bus
Service
(“Ameritrans”), and Martha again gave Kie cash from her
bank account. Curry then made a payroll check purportedly
from Fred’s Towing Service (“Fred’s Towing”), payable to
Kie. Kie cashed it at a local gas station. Each time Kie
obtained cash, she and Curry divided it.
Later, Curry and Kie gave Joeleanna Taylor a false
check from Fred’s Towing. Kie drove Taylor to the same
gas station, but when Taylor attempted to cash the check,
it was refused. Kie then took her to a Marathon station,
where the check was accepted for cash. Taylor cashed
three counterfeit checks for Kie and Curry at Martin’s.
Kie gave Curry the cash, and he took half and gave the
remainder to Kie and Taylor to divide.
Avengela Jones cashed four counterfeit checks from
Curry, purportedly issued as payroll checks from either
Peddler’s Village Auction or Mike’s Towing Service. Each
time, Curry would drive her to either a Martin’s or a
Marathon station, and after she returned with the cash,
the two would divide it. Jones was a drug user at the
time.
10

In December 2008, Curry approached another old
friend, Carla Thomas, to see if she was interested in
making some extra cash. Twice, he drove her to Martin’s
stores, where she cashed checks purportedly from
Ameritrans, and the two split the money. Thomas testified
that she had seen Curry make the checks on his computer.
Tr. at 299-300, 304.
That same December, Michael Jackson was at a local
gas station when a man fitting Curry’s description
approached him about a “quick money” deal. Jackson was
unemployed and expecting a baby. He did not know the man
who approached him but recognized him as someone from the
neighborhood. The man gave Jackson a false payroll check
from Honker’s Expert Catering and drove him to Martin’s.
When Martin’s refused the check, Jackson left and went
home.
Elkhart Police Detective Susan Lambright began an
investigation in late 2008 and early 2009 and discovered
a pattern regarding the counterfeit checks. For example,
they bore the same fonts, watermarks, and routing numbers
and were purportedly from the same handful of local
companies, contained the same misspellings, and were made
with the same kind of colors of paper. When Detective
Lambright questioned the purported payees listed on the
checks, three of them said that Curry had provided the
checks to be cashed, and the other two provided a
description that fit Curry’s physical traits. At Curry’s
home, police found a green sedan matching the
descriptions provided by all five payees.
Curry v. Indiana, 20A03-1008-CR-454, slip op. at 2-5 (Ind. Ct. App.
May 31, 2011).
Curry has failed to establish that any of his potential
witnesses would have reasonably placed his convictions in doubt.
The only potential witness who testified at the post-conviction
hearing was Rowena Gutierrez. She merely testified that she would
have testified consistently with a previously completed affidavit
about events from 6 p.m. to 8:20 p.m. on December 16, 2008. (PCR
Tr. 48; PCR App. 55.) At the PCR hearing, she did not state what

11

those events were or what she had previously stated in that
affidavit. The affidavit itself was deemed inadmissible hearsay.
(PCR Tr. 53-54, 67, 69.) Consequently, limiting its review to the
evidence before the state court, this court finds that the court of
appeals adjudication of this claim was reasonable. There has been
no showing that the state court’s decision was contrary to, or an
unreasonable

application

of,

Strickland

or

any

other

clearly

established federal law.
As

an

aside,

Curry

argues

that

various

affidavits

from

potential witnesses were impermissibly stricken during the postconviction proceedings. However, this court is bound by the state
court’s decisions regarding admissibility of evidence.1 See Earls
v. McCaughtry, 379 F.3d 489, 495 (7th Cir. 2004) (federal habeas
court bound by state court’s determination that evidence at issue
was

admissible

under

state

law

in

assessing

ineffective

assistance).
Plea Agreement advice from Standby Counsel
Next, Curry claims that Attorney Mark Manchak provided him
with ineffective assistance in connection with a plea agreement.
Notably, Attorney Manchak only represented Curry for three months
before Curry elected to proceed pro se. (PCR Tr. at 127, 142.)
Attorney

Manchak

and

the

State

1

did

not

engage

in

any

plea

And, to put any doubt to rest, this Court has reviewed the stricken
affidavits, and, even if they are taken as true, there is nothing exculpatory in
them that would change this Court’s conclusion. (Appellants App. 45-62.)

12

negotiations while he represented Curry. (Id. at 137.) While Curry
was pro se and Attorney Manchak was standby counsel, the State did
offer Curry a plea agreement that would require him to serve 20
years. (Id. at 115.) That plea agreement was rejected by Curry.
Curry complains that sometime during his representation,
Attorney

Manchak

informed

Curry

that

the

maximum

term

of

imprisonment he could receive would be eight years. This, Curry
claims, affected his decision to reject a plea agreement. The
Indiana Court of Appeals held that Curry could not assert an
ineffective assistance claim based on the advice, because at the
time the plea agreement was offered and rejected, Curry was
representing himself. (Ex. L at 8.) This is not an unreasonable
decision, nor is it contrary to federal law. As this Circuit has
acknowledged:
This court knows of no constitutional right to effective
assistance of standby counsel. As the word “standby”
implies, standby counsel is merely to be available in
case the court determines that the defendant is no longer
able to represent himself or in case the defendant
chooses to consult an attorney. A defendant who has
elected to represent himself “cannot thereafter complain
that the quality of his own defense amounted to a denial
of ‘effective assistance of counsel.’”
United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992)
(citation and quotation omitted). Therefore, this cannot form the
basis for habeas relief.

B.

Habitual Offender

13

Next, Curry claims the evidence was insufficient at trial to
adjudicate him as a habitual offender. The Indiana Court of Appeals
found there was sufficient evidence. It set out the following
facts:
On March 25, 2014, Curry’s trial on the habitual offender
enhancement began. At the trial, the court heard
testimony from former Elkhart County Deputy Prosecuting
Attorney Kristine Osterday (“DPA Osterday”), who was
involved in the initial prosecution of Curry on the
corrupt business influence charge underlying the retrial
on the habitual offender enhancement.
The court heard argument as to State’s Exhibit 1, a
certified copy of the 2007 Indiana conviction from
Curry’s guilty plea to counterfeiting as a Class D felony
in the Elkhart Superior Court in cause number
22D02–0606–FC–221, which included an entry in the
chronological case summary (“CCS”) indicating that the
instant case was a probation violation under Curry’s 2007
Indiana conviction. State’s Exhibit 1 contained an
“Affidavit to Show Probable Cause” in the 2007 Indiana
conviction for “Kevin L. Curry DOB: 03–10–64,” an
“Information Charging Forgery A Class C Felony, I.C.
35–43–5–2(a)(1)(A)” including a copy of a check with
Curry’s signature, a copy of a “Motion to Withdraw Plea
of Not Guilty and Enter Pleas of Guilty, Plea Agreement,
and Disclosure” including Curry’s initials, “KC,” next to
each line of the plea agreement, an order noting that
Curry “entere[ed] a plea of guilty to: COUNTERFEITING D
FELONY,” a sentencing order, and a twelve-page CCS for
the 2007 Indiana conviction that included an entry
stating that Curry had violated his probation in the 2007
Indiana conviction by committing the instant offense.
State’s Exhibit 1.
Defense counsel objected to the admission of State’s
Exhibit 1, arguing that evidence of a probation violation
was not relevant under Ind. Evidence Rule 401 and that
“it would not withstand a balancing test under Indiana
Rule of Evidence 403” because State’s Exhibit 1 contained
references to Curry’s criminal history that were “unduly
prejudicial and not probative, could mislead the jury and
cause confusion of the issues.” Transcript at 16. The
court overruled the objection, stating that caselaw
14

supported the proposition that it is “not prejudicial to
include evidence of a probation violation directly
related to the habitual proceedings” and that the
information in the exhibit was “relevant and it does not
appear to the court to be counterbalanced by any
significant prejudice.” Id. at 17. Defense counsel also
objected to sentencing information being included in
State’s Exhibit 1. The court struck the inclusion of the
exact sentence length from the 2007 Indiana conviction.
The court removed eleven pages of the CCS from the 2007
Indiana conviction but allowed the CCS entry showing the
probation violation to remain in the exhibit, and
published the exhibit to the jury as State’s Exhibit 1A.
The court heard argument as to State’s Exhibit 3, which
contained a certified copy of a plea agreement from an
August 29, 1990 offense in Texas for aggravated
kidnapping, stamped “FELONY INFORMATION” at the top of
the page, and dated September 13, 1990, the date of
conviction for the offense, and included the length of
Curry’s sentence for that offense, which was seven years
of probation, the conditions of probation for “Kevin
Lavell Curry,” and a reference that Curry violated his
probation and was sentenced to five years in the Texas
Department of Criminal Justice, institutional division,
on July 14, 1993, as a result of the probation violation.
State’s Exhibit 3. The exhibit also contained prints of
Curry’s right thumb and right index finger, a signature
for Kevin Curry, as well as his date of birth of 3–10–64,
race, and sex. The portion of State’s Exhibit 3
containing Curry’s guilty plea agreement and conditions
of probation was stamped with a Recorder’s Memorandum,
which states: “At the time of recordation this instrument
was found to be inadequate for the best photographic
recordation because of illegibility, carbon or photo
copy, discolored paper, etc. All blockouts, additions,
and changes were present at the time the instrument was
filed and recorded.” State’s Exhibit 3. On the portion of
the exhibit dealing with the July 14, 1993 probation
violation, the Recorder’s Memorandum states: “This
instrument is of poor quality and not satisfactory for
photographic recordation; and/or alterations were present
at the time of filming.” Id.
Defense counsel objected to the admission of State’s
Exhibit 3 on grounds that the exhibit was “not relevant
... prejudicial, [and] would not withstand [an] Indiana
Rules of Evidence 403 balancing test....” Transcript at
15

17. Defense counsel also objected to the inclusion of the
sentencing information in the exhibit. Defense counsel
additionally objected that State’s Exhibit 3 was of “poor
quality” and that a recorder’s stamp on various pages of
the document indicated that the documents were “not as
they were originally created” and that the exhibit
“draw[s] into questions of authenticity about a witness.”
Id. at 51–52.
The court overruled the objection to including the
reference to a probation violation but, although it
redacted a specific reference to “the South Carolina
charges which were quite serious in nature and which
could be quite highly prejudicial” to Curry, it did not
redact the general reference to the probation violation
from State’s Exhibit 3. Id. at 18. It also allowed the
inclusion of the sentencing information because the
charge in the Texas case was “already fully resolved.”
Id. at 20. The court also added that the exhibit did not
appear to contain “any obvious alteration of the document
and given the certification which is also provided ...
the quality problems go to the [exhibit’s] weight rather
than admissibility.” Id. at 53. The court redacted the
specific reference to the reason Curry’s probation was
revoked in the Texas case and published the exhibit as
State’s Exhibit 3A to the jury.
The court next heard argument as to State’s Exhibit 4,
which contained an affidavit of the Chairman of
Classification and Records for the Texas Department of
Criminal Justice–Correctional Institutions Division,
stating that the “attached information provided on inmate
CURRY, KEVIN, TDCJ/BPP# 653544, cause# 573683, are true
and correct copies of the original records now on file in
my office maintained in the regular course of business
within the Classification and Records Office of the Texas
Department of Criminal Justice–Correctional Institutions
Division.” State’s Exhibit 4. The exhibit also contained
a certified booking photograph of Curry, a copy of the
July 14, 1993 probation violation, and a fingerprint
sheet with a signature of Kevin Lavell Curry. Defense
counsel repeated the objections it raised as to State’s
Exhibit 3 and further asserted that the State’s witness
had no personal knowledge of the content of the
documents, the State lacked a foundation for the
exhibit’s admissibility, and the exhibit had the same
reference to a probation violation as in State’s Exhibit
3. As to the objection that DPA Osterday lacked personal
16

knowledge of the contents of State’s Exhibit 4, the court
noted that State’s Exhibit 4 was a certified copy and
that it “comes in independent” of DPA Osterday and that
defense counsel “might keep in mind that you may have an
objection as to whether she has personal knowledge.” Id.
at 54. The court redacted the specific reference to the
reason Curry’s probation was revoked in the Texas case
and published the exhibit as State’s Exhibit 4A to the
jury.
DPA Osterday testified that she was familiar with Curry
from her work as a prosecutor and was able to provide the
court with his birthdate, which is March 10, 1964. She
identified Curry in the courtroom and testified that, as
to the 2007 Indiana conviction and the instant case,
Curry was “one in the same.” Id. at 46. On crossexamination, DPA Osterday testified that she was not
licensed to practice law in Texas, did not request DNA
comparisons between the Indiana defendant and the Texas
defendant, did not request fingerprint comparisons,
“could not recall” whether she had requested a certified
booking photograph from Texas, and was not an expert
regarding handwriting samples. Id. at 69. On redirect,
DPA Osterday testified that she believed she had obtained
sufficient documentation “based upon the name matching
Kevin Lavell Curry, the date of birth, March 10th 1964,
as well as the signature” to prove Curry’s identity. Id.
at 70.
Defense counsel moved for a directed verdict, arguing
that a name and date of birth is not enough to adjudicate
an individual as an habitual offender. Defense counsel
contended that, as to identity, the State introduced “a
photograph with regard to the Texas conviction that
depicts a black male with no physical characteristics
identified” and “a fingerprint card without analysis,”
which taken together, “is insufficient as a matter of law
to substantiate or support two prior unrelated felony
convictions.” Id. at 78. The court denied Curry’s motion,
finding “the State has at least met its minimum burden to
get this case to the jury,” reasoning that “we do have a
name, we have the date of birth, we have the race and
gender related to the Texas conviction” as well as a
signature and photographs of Curry. Id. at 80.
On March 26, 2014, the jury found that Curry was an
habitual offender.

17

Ex. P at 4-10.
Despite the Indiana Court of Appeals findings, Curry claims
there was insufficient evidence because there was no DNA, physical
characteristic evidence, no attempt to link the fingerprints to the
Texas conviction, and no expert testimony. (DE 20 at 6-7.)
The standard of review is a rigorous one: evidence,
viewed in the light most favorable to the State, is
sufficient to support a conviction so long as any
rational trier of fact could find the essential elements
of the offense to have been proved beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Because we consider this claim on collateral review
rather than direct appeal, [AEDPA] imposes an additional
layer of defense onto this inquiry: we may grant relief
on this claim only if the [State] Appellate Court applied
the Jackson standard unreasonably to the facts of [the]
case.
Jones v. Butler, 778 F.3d 575, 581-82 (7th Cir. 2015) (parallel
citations omitted).
The record contains sufficient evidence supporting the jury’s
finding

that

Curry

was

a

habitual

offender.

To

start,

the

prosecution presented records of two prior felony convictions: a
1990 conviction for aggravated kidnapping and a 2007 forgery
conviction in Indiana. (State’s Exs. 1A, 2, 3A, 4A.) The prosecutor
identified Curry in court as the defendant in both of those cases.
(Tr. 42, 46, 49-50). The records from both of those convictions
revealed that the defendant was a black male named Kevin Lavell
Curry who was born on March 10, 1964. (State Exs. (2, 3A, 4A.)
Booking

photographs

from

both

convictions

were

placed

into

evidence. (States Exs. 2, 4A.) Moreover, there were numerous
18

handwriting exemplars in both cases. (State Exs. 1A, 3A, 4A.) This
is sufficient evidence to allow a jury to reasonably conclude that
Curly was the same person on both the Indiana and Texas convictions
to sustain his habitual offender adjudication. This is precisely
what the Indiana Court of appeals held:
As previously noted in Part I, the State admitted
certified copies of Curry’s two prior felony convictions,
the 2007 Indiana conviction and the 1990 Texas conviction
for aggravated kidnapping. As to identity, the State
presented evidence that contained Curry’s name, date of
birth, fingerprints, and certified booking photographs,
which enabled the jury to determine Curry's identity as
the same person involved in the instant case, the 2007
Indiana case, and the Texas case. DPA Osterday also
identified Curry in court, testified to his conviction in
the 2007 Indiana case, and had requested certain records
stemming from his 1990 Texas conviction in his first
trial on the habitual offender charge. The photographs
also provided the jury with a basis to compare the more
recent photograph of Curry in State’s Exhibit 2, which
related to his conviction in the instant case, and notes
his sex, race, hair color, eye color, height, weight,
date of birth, and age with the booking photograph in
State’s Exhibit 4A from Kevin Lavell Curry’s 1990 Texas
conviction, and the jury could observe Curry as he
appeared in the courtroom. Moreover, the records from the
2007 Indiana conviction and the 1990 Texas conviction
include both Curry's full name, Kevin Lavell Curry, a
date of birth of 3–10–64, as well as Curry’s race, sex,
and
signature,
which
provided
the
jury
with
circumstantial evidence of Curry’s identity. We conclude
the State presented evidence of probative value from
which the jury could have found Curry to be an habitual
offender beyond a reasonable doubt. See Heyen v. State,
936 N.E.2d 294, 302–303 (Ind.Ct.App.2010) (finding that
if the evidence yields logical and reasonable inferences
from which the finder of fact may determine beyond a
reasonable doubt that it was the defendant who was
convicted of the prior felony, then a sufficient
connection has been shown, and affirming the defendant's
status as an habitual offender), trans. denied.
Ex. P at 17-18.
19

The Indiana Court of Appeals’ holding was reasonable and a
correct application of clearly established federal law. While Curry
disagrees

with

the

weighing

of

this

evidence,

that

is

not

sufficient to warrant habeas relief. Re-weighing the evidence or
reassessing

the

credibility

of

witnesses

is

not

the

court’s

function on federal habeas review.

C.

Challenge to Indiana Corrupt Business Influence Conviction
Finally, Curry claims his conviction for corrupt business

influence should be vacated. He complains that the jury was not
asked to find - and thus did not find - that his “criminal acts
pose[d] a threat of continued activity after arrest.” (DE 28 at
13.) Essentially, Curry argues that this Court should read into the
Indiana Corrupt Business Influence statue a requirement that a
defendant’s activity must also demonstrate that it “posed a threat
of future criminal conduct,” as set forth in the federal RICO
statute. (DE 20 at 7.) The state argues that this argument is
procedurally defaulted because he did not raise this issue in the
State courts.
Before considering the merits of a habeas petition, a federal
court must ensure that the petitioner has exhausted all available
remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). The exhaustion
requirement is premised on concerns of comity; the state courts

20

must

be

given

violations

of

the

first

their

opportunity

prisoner’s

to

federal

address

rights.

and

correct

O’Sullivan

v.

Boerckel, 526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d
505, 514 (7th Cir. 2004). For that opportunity to be meaningful,
the petitioner must fairly present his constitutional claims in one
complete round of state review. Baldwin v. Reese, 541 U.S. 27,
30-31 (2004); Boerckel, 526 U.S. at 845.
The companion procedural default doctrine, also rooted in
comity concerns, precludes a federal court from reaching the merits
of a habeas petition when either: (1) the claim was presented to
the state courts and was denied on the basis of an adequate and
independent state law procedural ground; or (2) the claim was not
presented to the state courts and it is clear those courts would
now find the claim procedurally barred under state law. Coleman v.
Thompson, 501 U.S. 722, 735 (1991); Perruquet, 390 F.3d at 514.
When a habeas petitioner fails to fairly present his claim to the
state courts and the opportunity to raise that claim has now
passed, the claim is procedurally defaulted. Boerckel, 526 U.S. at
853-54.
A habeas petitioner can overcome a procedural default by
showing cause for failing to abide by state procedural rules and a
resulting prejudice. Wainwright v. Sykes, 433 U.S. 72, 90 (1977);
Wrinkles

v.

sufficient

Buss,
to

537

excuse

F.3d

804,

procedural

21

812

(7th

default

is

Cir.

2008).

defined

as

Cause
“some

objective

factor

external

to

the

defense”

which

prevented

a

petitioner from pursuing his constitutional claim in state court.
Murray v. Carrier, 477 U.S. 478, 492 (1986).
A habeas petitioner may also overcome a procedural default by
establishing that the court’s refusal to consider a defaulted claim
would result in a fundamental miscarriage of justice. House v.
Bell, 547 U.S. 518, 536 (2006); Coleman, 501 U.S. at 750. Under
this narrow exception, the petitioner must establish that “a
constitutional violation has resulted in the conviction of one who
is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298,
324 (1995).
Here, Curry concedes that he did not raise this issue in the
State courts. (DE 28 at 12.) He nevertheless argues that this Court
should review the claim under the fundamental miscarriage of
justice

exception.

To

establish

actual

innocence

under

the

miscarriage of justice exception, the petitioner must establish
"factual innocence, not mere legal insufficiency." Bousley v.
United States, 523 U.S. 614, 623 (1998). To do so he must come
forward with new, reliable evidence and must establish that "in
light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt." Schlup, 513
U.S. at 329. This, Curry does not do. As such, Curry has failed to
establish actual innocence.

22

Even assuming Curry could overcome the procedural default, his
claim has no merit. Although Curry argues that the Indiana Corrupt
Business Influence statute should require a jury to find that his
“criminal acts pose a threat of continued activity after arrest,”
that statute contains no such requirement. For all these reasons,
this claim cannot form the basis of habeas relief.

D.

Curry’s Objection to State Court Record Submission
Curry

has

filed

a

motion

objecting

to

the

respondent’s

submission of the state court record. (DE 30.) Curry claims that it
does not include the jury instructions. In response, the Respondent
asserts that he has submitted the entire state court record. (DE 25
at 28.) Upon review, the submitted state court record does include
the preliminary and final jury instructions. (See App. Appendix at
pp. 55-129). There appears to be nothing missing from the state
court record. Because the Respondent has submitted the entire state
court record, including the jury instructions, the motion will be
denied.

E.

Certificate of Appealability
As a final matter, pursuant to RULE 11 of the RULES GOVERNING

SECTION 2254 CASES, the court must either issue or deny a certificate
of appealability in all cases where it enters a final order adverse
to the petitioner. To obtain a certificate of appealability, the

23

petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented

were

adequate

to

deserve

encouragement

to

proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks and citation omitted). For the reasons fully
explained above, one of Curry’s claims is procedurally defaulted,
and he has not provided any meritorious basis for excusing his
default.

As

to

his

remaining

claims,

Curry

has

not

made

a

substantial showing of the denial of a constitutional right, nor
could jurists of reason debate the outcome of the petition or find
a reason to encourage him to proceed further. Accordingly, the
Court declines to issue Curry a certificate of appealability.

CONCLUSION
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.

DATED: October 3, 2016

/s/RUDY LOZANO, Judge
United State District Court

24