Curry v. Haynes

1

VERNON LEWIS CURRY, JR., Petitioner, v. RONALD HAYNES, Respondent.

No. 3:22-CV-5493-LK-DWC

United States District Court, W.D. Washington, Tacoma

May 11, 2023

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.

BACKGROUND

A. Factual Background

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).

B. Procedural Background

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...