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Curry v. Clarke

United States District Court, Fourth Circuit

November 20, 2013

RICHARD CURRY, #1442433 Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

REPORT AND RECOMMENDATION

DOUGLAS E. MILLER, Magistrate Judge.

Petitioner Richard Curry ("Petitioner" or "Curry") seeks a writ of habeas corpus alleging constitutional errors underlying his state convictions for malicious discharge of a firearm, attempted robbery, two counts of use of a firearm in the commission of a felony, two counts of conspiracy to commit robbery, and robbery. The respondent moved to dismiss Curry's petition, and the matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure.

For the reasons set forth in detail below, the undersigned recommends that the Court GRANT Respondent's motion, and DISMISS the petition. Curry's ineffective assistance of counsel claim, though presented to the Circuit Court, was never properly raised to the state's highest court. Accordingly, this claim is procedurally defaulted, and Curry's lack of counsel during the initial collateral review process does not establish cause to excuse the default. Additionally, Curry's challenge to the sufficiency of the evidence against him, as well as his "false identification" claim, should be dismissed as the state court's merits determination was neither contrary to, nor based on an unreasonable application of federal law or factual finding.

I. STATEMENT OF THE CASE

Curry was charged with and convicted of robbing the Golden Wok Chinese restaurant in Norfolk. Following trial, a jury found Curry guilty of malicious discharge of a firearm, attempted robbery, two counts of use of a firearm in the commission of a felony, two counts of conspiracy to commit robbery and robbery. (ECF No. 9 at 1-2, Trial Ct. Sentencing Order). On August 19, 2011 the Norfolk Circuit Court sentenced Petitioner to 88 years' imprisonment, with 70 years suspended. (ECF No. 9 at 1). Curry appealed his conviction to the Virginia Court of Appeals, which denied it. Curry v. Commonwealth, No. 1824-11-1 (Va. Ct. App. Mar. 6, 2012). The Supreme Court of Virginia then refused Curry's petition for appeal. On direct appeal, Curry challenged only the sufficiency of the admitted evidence. (ECF No. 9 at 3-4).

Thereafter, Curry filed a habeas corpus petition in the Circuit Court. He raised several allegations, which the Circuit Court interpreted as follows:

(a) lack of representation;
(b) lack of evidence;
(c) "false identification."

Curry v. Commonwealth, No. CL12006160-00 (City of Norfolk Cir. Ct. Feb. 28, 2013). The Circuit Court found no merit in any of the claims and dismissed the petition on February 28, 2013. Id. While Curry apparently noted an appeal of this decision in the Circuit Court, he never perfected it in the Supreme Court of Virginia.

On March 11, 2013, Curry, proceeding pro se, conditionally filed the instant habeas petition pursuant to 28 U.S.C. § 2254. He filed an amended petition on May 28, 2013, alleging the same grounds for relief as the first petition, but containing additional arguments. In his petition, Curry raises several claims which roughly parallel those presented in his state habeas filings:

(a) That he was denied effective assistance of counsel when his trial attorney (1) did not allow Curry or any of his family or friends to take the stand in his defense, and (2) "failed to bring forth critical information during the trial like that of a possible alibi for one of the robberies." (ECF No. 9 at 7).
(b) That the evidence used to convict Curry was insufficient (ECF No. 9 at 8); and
(c) A "[f]alse [i]dentification" claim alleging that the evidence was insufficient to warrant a guilty verdict. (ECF No. 9 at 10).

Respondent filed a Rule 5 Answer and Motion to Dismiss, along with brief in support. As required by Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and Local Rule 7 (K), Curry was advised of his right to file opposing affidavits, statements, exhibits, and legal memoranda, as well as the possible consequences of failing to oppose Respondent's filing. Curry failed to respond and the Motion to Dismiss is now ripe for judicial review.

II. RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Habeas petitions filed pursuant to 28 U.S.C. § 2254 challenge a state's custody over a petitioner on the grounds that such custody violates the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Before applying for federal habeas relief, however, a petitioner must first exhaust the remedies available in state court or demonstrate the absence or ineffectiveness of such remedies. 28 U.S.C. § 2254(b)(1). Therefore, before a state prisoner can apply for federal habeas relief, he must first give the state court an opportunity to ...


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