Curry v. Woods

• Decision Date: 25 November 2019
• Docket Number: Case No. 1:17-cv-64
• Parties: ROBERT LEE CURRY, Petitioner, v. JEFFREY WOODS, Respondent.
• Court: U.S. District Court — Western District of Michigan

ROBERT LEE CURRY, Petitioner, v. JEFFREY WOODS, Respondent.

Case No. 1:17-cv-64

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 25, 2019

Honorable Paul L. Maloney

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Robert Lee Curry is incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility (ECF) in Manistee County, Michigan. Following a jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of three counts of armed robbery; one count of assault with intent to rob while armed; one count of felon in possession of a firearm (FIP); one count of carrying a concealed weapon (CCW); and four counts of felony firearm. On February 3, 2014, the court sentenced Petitioner as a fourth habitual offender to concurrent prison terms of 35 to 60 years on the armed robbery and assault convictions, and 5 to 10 years on the FIP and CCW convictions. All of those sentences were to be served consecutively to 2-year term of imprisonment for the felony firearm convictions. Petitioner's sentences for the convictions in the Kalamazoo County prosecution were to be served consecutively to a sentence of 1 year, 6 months to 4 years imposed by the Allegan County Circuit Court on May 6, 2011. Petitioner was on parole for the Allegan County offense when he committed the crimes in Kalamazoo County.

On January 12, 2017, Petitioner timely filed his habeas corpus petition raising seven grounds for relief, as follows:

I. Petitioner was denied due process of law where the judge permitted a complaining witness to testify that he'd heard someone say that Petitioner had robbed before.

II. Petitioner was denied a fair trial when, over defense objection, the detective in charge of the investigation was allowed to state her opinion that, in a conversation the detective overheard, Petitioner was "obviously coaching" his wife to testify about a subject of which, it seemed to the detective, Petitioner's wife was unfamiliar.

III. Petitioner's trial counsel rendered ineffective assistance when:

A. counsel failed to object or move to suppress Officer Gates' testimony regarding an incriminating statement made by Petitioner;

B. counsel failed to get the audio of Petitioner's call to 911;

C. counsel failed to send Petitioner's phone records to a lab to confirm Petitioner's truthfulness through text messages;

D. counsel failed to subpoena witness Ms. Jones to support Petitioner's duress defense; and

E. counsel failed to qualify Petitioner's treating mental health professional as an expert.

IV. The trial court denied Petitioner's right to confront the witnesses against him when the court did not compel the testimony of victim Scott Smith.

V. The trial court improperly excluded testimony from witness Officer Gates that would have supported Petitioner's defense of duress.

VI. The photo lineup was improper.

VII. The trial judge improperly excluded testimony of Petitioner treating mental health professional that would have supported Petitioner's duress defense.

VIII. Officer Gates violated Petitioner's Miranda rights during jailhouse interrogation and the testimony regarding the interrogation should have been excluded.

IX. Petitioner's race was underrepresented in the jury venire and the trial judge improperly dismissed one of only two black jurors.

(Pet., ECF No. 1-1, PageID.41, 70-80.) Respondent has filed an answer to the petition (ECF No. 10) stating that the grounds should be denied because they are procedurally defaulted and/or meritless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

On March 8, 2013, Petitioner, while armed, robbed Christopher Tucker, Cody Tucker, and Scott Smith. At the same time, he assaulted Jordan Wallace with an intent to rob her. Petitioner's conduct in committing those offenses also violated Michigan statutes prohibiting the carrying of a concealed weapon, the possession of a weapon by a felon, and the possession of a firearm in connection with the commission of a felony. Although there were some differences between the accounts of the event offered by the victims and the account offered by Petitioner, Petitioner did not deny committing the offenses. He claimed he committed the offenses under duress. Armed associates had threatened Petitioner's wife and children if he did not commit the offenses. Indeed, according to Petitioner and his wife, one gunman sat with Petitioner's wife and children at the home where they were residing while Petitioner committed the crimes.

After listening to several days of testimony, the jury was not convinced that Petitioner acted under duress. The jurors deliberated for about an hour before returning their verdict of guilty on all counts.

Petitioner, with the assistance of counsel, directly appealed his convictions. Petitioner and his counsel sought a remand to the trial court to permit factual development of an ineffective assistance claim regarding trial counsel's failure to call witnesses to support Petitioner's duress defense. (Pet'r's Mot. to Remand, ECF No. 11-9, PageID.1538-1542.) Thecourt of appeals denied Petitioner's motion by order entered September 5, 2014. (Mich. Ct. App. Order, ECF No. 11-9, PageID.1552.)

Petitioner, through his counsel, submitted an appeal brief raising two issues, the issues identified as habeas issues I and II above. (Pet'r's Br., ECF No. 11-9, PageID.1555-1582.) In a pro per brief, Petitioner raised the issues identified as habeas issues III-IX above. (Pet'r's Standard 4 Br., ECF No. 11-9, PageID.1600-1617.) By unpublished opinion issued June 11, 2015, the Michigan Court of Appeals considered each of Petitioner's issues and affirmed the trial court. (Mich. Ct. App. Op., ECF No. 11-9, PageID.1514-1521.)

Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he had raised in the court of appeals. (Pet'r's Appl. for Leave to Appeal, ECF No. 11-10, PageID.1619-1693.) By order entered February 6, 2016, the supreme court denied leave to appeal because it was unpersuaded that the questions presented should be reviewed. (Mich. Order, ECF No. 11-10, PageID.1618.) This timely petition followed.

II. AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA "prevents federal habeas 'retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presentedin the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion intheir adjudication of a prisoner's claims." White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This...