Noting
Dated: May 26, 2023
REPORT AND RECOMMENDATION
David
W. Christel Chief United States Magistrate Judge
The
District Court has referred this habeas corpus
action to United States Magistrate Judge David W. Christel.
Petitioner Vernon Lewis Curry, Jr. filed his federal habeas
petition, pursuant to 28 U.S.C. § 2254, seeking relief
from his state court conviction and sentence for first degree
murder with a firearm enhancement and first degree unlawful
possession of a firearm. See Dkt. 6. After review of
the relevant record, the Court concludes (1) petitioner
failed to exhaust Grounds 2 and 3 and those grounds are
procedurally defaulted, and (2) the state court's
adjudication of Grounds 1 and 4-8 was not contrary to, nor an
unreasonable application of, clearly established federal law.
The Court finds an evidentiary hearing is not necessary. The
Court recommends the petition be dismissed with prejudice and
further recommends a certificate of appealability not be
issued.
On May
26, 2016, a jury found petitioner guilty of first degree
murder with a firearm enhancement, and first degree unlawful
possession of a firearm. Dkt. 27-1 at 2 (Ex. 1). Petitioner
was sentenced on June 3, 2016 to 570 months. Id. at
7. The Washington Court of Appeals, Division II (“state
court of appeals”) summarized the facts of
petitioner's case as follows:
At approximately 4:00 AM on September 7, 2014, Michael Ward
Jr. was shot and killed in his car near an after-hours club
in Tacoma. Curry was arrested for Ward's murder. The
State charged Curry with one count of first degree murder
with a firearm enhancement and one count of unlawful
possession of a firearm. [Footnote omitted.]
Isaiah Campbell and Xavior Henderson were both near the
after-hours club on the night Ward was shot and killed.
Campbell testified that he was standing outside the club when
he heard several gunshots from nearby. Then Campbell saw
Ward's car backing up. When Campbell approached Ward, he
realized that Ward had been shot several times and was
struggling to breathe. Campbell grabbed a gun from out of
Ward's car and fired several shots toward a car coming up
the street. Henderson testified that when he heard gunshots
he immediately began running. As Henderson was running, he
fired three shots toward a brick wall.
Saundra Blanchard lived a few blocks from where the shooting
occurred. Several hours after the shooting, Blanchard and one
of her neighbors, Korlina Henson, found a black ski mask in
her yard. A crime scene technician was notified and collected
the black ski mask. Forensic testing found Curry's DNA on
the inside front of the ski mask. Curry's own expert
agreed with the forensic findings, but also found an
unidentifiable second profile on the outside back of the ski
mask.
Several days after the shooting, Henson found a firearm in
her yard. The firearm was collected by a forensic specialist.
Forensic testing confirmed that the firearm was the murder
weapon.[1]
Detective Jeff Katz of the City of Tacoma Police Department
was the lead investigator assigned to Ward's murder.
Detective Katz reviewed security video footage of the area
surrounding the murder from several sources. One video showed
a man in gloves pulling a ski mask down over his face while
walking toward the murder scene. And another video showed
what appeared to be the same subject firing a gun in the
direction of Ward's car. ...
Curry testified in his own defense. Curry explained that he
had a media company called Ylyfe Entertainment. As part of a
photo shoot for Ylyfe, Curry wore a black ski mask similar to
the one worn by the shooter and found in Blanchard's
yard. However, Curry testified that the mask was in a
container that was stolen from his car months prior to the
shooting. During Curry's cross-examination, the State
asked Curry if he had ever heard of YG Entertainment or Young
Gangster Entertainment. Curry denied hearing of YG
Entertainment or Young Gangster Entertainment.
In response to Curry's testimony, the State moved to
introduce two photographs showing Curry associated with Y
Gangster Entertainment (Exhibit 174A) and a photograph with
Curry displaying the logo for Y Gangster Entertainment
(Exhibit 175). Curry objected. The trial court admitted
Exhibit 174A as “direct impeachment for what he just
testified to.” XV-XVI RP at 1595. Then the trial court
admitted Exhibit 175 “because [Curry] denied that that
was the symbol for Y Gang and it's obvious that it
is.” XVII RP at 1705.
Prior to presenting the photographs, the State proposed a
limiting instruction that informed the jury that the
photographs and associated line of questioning may be
considered “for assessing the defendant's
credibility and for no other reasons.” XVII RP at 1686.
However, Curry specifically stated that he did not want the
trial court to give the proposed instruction. Therefore, the
trial court did not give the jury a limiting instruction
regarding the Y Gangster Entertainment evidence. ...
The jury found Curry guilty of one count of first degree
murder with a firearm enhancement and one count of unlawful
possession of a firearm. The trial court imposed a high-end,
standard range sentence of 450 months on the first degree
murder conviction. The trial court also imposed a mandatory
120 month firearm enhancement to run consecutively. Curry
appeals.
Dkt 27-1 at 15-21 (Ex. 2).
At the
beginning of his trial, petitioner asserted he had been
deprived of his right to counsel of his choice due to
prosecutorial misconduct, and sought dismissal of his charges
on that ground. The state court of appeals summarized the
facts underlying that claim as follows:
Curry moved to dismiss the charges based on government
misconduct. Curry alleged that the elected Pierce County
prosecuting attorney's behavior toward his prior
appointed counsel undermined the relationship between Curry
and his former counsel. Curry relied on a declaration filed
by his former attorney. Curry's former counsel stated
that the Pierce County prosecuting attorney had referred to
him as a member of a “confederacy of dunces.”
Clerk's Papers (CP) at 155. And “the
‘dunces' were not to receive favorable
consideration in the negotiation and settlement of criminal
cases.” CP at 155.
Curry saw the “confederacy of dunces” comment
reported in a newspaper article and became concerned about
his former counsel's ability to represent him.
Ultimately, Curry became so concerned about his former
counsel's ability to represent him that his former
counsel felt it was appropriate to withdraw. Curry's
former counsel explained,
Deputy Prosecuting Attorney Jesse Williams was representing
the state at the time that I withdrew from representing Mr.
Curry. I informed Mr. Williams of the situation and my
decision to withdraw, and also informed Mr. Williams that I
did not believe I had been treated unusually or unfairly by
him. However, I expressed to him my client's concern was
the reason for my withdrawal.
CP at 156.
The trial court concluded that Curry did not have the right
to choose his appointed attorney and denied his motion to
dismiss. Curry proceeded to trial with the counsel appointed
to him following his former counsel's withdrawal.
Dkt 27-1 at 16-17 (Ex. 2).
In
petitioner's Personal Restraint Petition
(“PRP”) proceeding, the state court of appeals
summarized the following additional facts regarding the trial
proceedings:
On the same day as the shooting, Karin Curry - Curry's
stepmother - called 911 to report her son's possible
involvement in Ward's murder. During the call, Karin
[footnote omitted] asked for a police officer to come to her
house to “talk to him regarding the shooting last night
in Tacoma.” PRP App. Attach. D. When the operator asked
what Karin would like to speak to the officer about, she
clarified: “I'm the -- I'm a parent, and I
think there's a possibility that my son was involved....
He called me this morning and he was very distraught and so,
you know ... I'm not sure.” PRP App. Attach. D. ...
The State also called Karin as a witness. On direct
examination, Karin testified that she called the police after
receiving a “call from ... [her] grandson's mother
... saying that there was speculation that my son could
possibly be involved.” 8B RP at 579. Defense counsel
objected on the basis of hearsay, which the trial court
sustained.
The trial court later instructed the jury to disregard any
evidence ruled inadmissible during trial.
Later in her testimony, Karin was asked why she called the
police. She denied calling due to her suspicions regarding
her son's involvement in the shooting. The State then
began to play a recording of the 911 call. At some point
during the recording, defense counsel asked to stop the
recording and objected on the basis of hearsay, relevance,
and prejudice. The trial court overruled the objection,
reasoning that there was no hearsay in the recording itself,
and allowed the tape to be played in its entirety.
Dkt. 27-1 at 34, 35-36.
After a
fourteen-day trial spanning more than three weeks, the jury
found petitioner guilty. The Court entered judgment and
sentence on June 3, 2016. Dkt. 27-1 at 2-13 (Ex. 1).
1.
State Court Appeals
Petitioner
brought a direct appeal challenging his conviction and
sentence. Dkt. 27-1 at 56-106 (Ex. 6), raising six
assignments of error. The state court of appeals affirmed
petitioner's conviction in an unpublished opinion. Dkt
27-1 at 15-29 (Ex. 3). Petitioner sought discretionary review
by the Washington Supreme Court (“state supreme
court”), raising three grounds: (1) the trial court...
