IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KEVIN L. CURRY, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:14-CV-2046

)

SUPERINTENDENT, )

)

Respondent. )

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, 20D02-

0907-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 any possibility for

fairminded disagreement.” Id. at 786-87.

5
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 did not engage in any plea

1

 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 the first opportunity to address and correct

violations of their prisoner’s federal rights. 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. Buss, 537 F.3d 804, 812 (7th Cir. 2008). Cause

sufficient to excuse procedural default is defined as “some

21
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