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Curry v. Sellers

United States District Court, N.D. Georgia, Atlanta Division

December 15, 2014

DEVON CURRY, Petitioner,
ERIC SELLERS, Warden, Respondent.


WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Linda T. Walker's Final Report and Recommendation ("R&R") [8], Petitioner's objections [10] to the R&R, and Petitioner's Motion for Habeas Corpus Status Update [13].[1]


A. The Plea

On September 9, 2009, Petitioner Devon Curry ("Petitioner") pleaded guilty to one count of armed robbery and one count of possession of a firearm during the commission of a crime.[2] Petitioner initialed and signed an "Acknowledgement and Waiver of Rights" form detailing the charges against him, indicating that Petitioner understood the terms of the plea agreement, and also that Petitioner understood the rights he was waiving. During his plea colloquy with the court, Petitioner stated he understood the plea agreement and the rights he was waiving by entering a plea. The court found that Petitioner freely and voluntarily waived his right to a jury trial, and the court accepted his guilty plea. The trial court sentenced Petitioner to 25 years, 12 to be served in state prison and the remainder to be served on probation. (See Tr. of Plea Hr'g [7.7 at 71-89]). Petitioner did not appeal his judgment of conviction. (Petition for Writ of Habeas Corpus [1] at 1).

B. State Habeas Proceedings

1. State Habeas Petition

On December 7, 2009, Petitioner filed his state habeas petition [7.1]. In Ground One of his petition, Petitioner asserted an ineffective assistance of counsel claim, arguing that his attorney, Quader Baig ("Baig"), did not sufficiently interview co-defendants who Petitioner believed would testify that he was not involved in the robbery. (Id. at 5). He also argued that his attorney had filed only one motion "when it should have definitely been more, " and that "[Baig] would send his assistant attorney" when Petitioner requested to speak with him. (Id.).

In Ground Two, Petitioner asserted an Equal Protection claim, arguing that his "Co-Defendant in affidavit (notarized) stated [he] was not involved in crime." (Id.).

In Ground Three, Petitioner argued that his sentence was excessive because he "was just an innocent person supposedly giving the other defendants a ride from their school, and home." (Id.).

In Ground Four, Petitioner argued that "there was no thorough police and state investigation." (Id.).

Petitioner filed an "Amended Application for Writ of Habeas Corpus" [7.3], asserting a second ineffective assistance of counsel claim.[3] He alleged in his amended petition that "counsel advised and allowed Petitioner to plead guilty absent informing Petitioner that by pleading guilty, he would be waiving the privilege against compulsory self-incrimination." (Id. at 9). Petitioner claimed that, had he been advised of this waiver, the "would have insisted on a jury trial." (Id.). Petitioner last argued that the "conviction [was] obtained by a plea of Guilty which was not made knowingly and voluntarily." (Id.).

2. State Habeas Evidentiary Hearing

On May 17, 2010, the Macon County Superior Court held an evidentiary hearing on Petitioner's habeas claims. Baig's co-counsel, Wendi Armstrong ("Armstrong"), testified at the hearing on the ineffective assistance of counsel and involuntary plea claims. Armstrong testified that she and Baig visited Petitioner in jail at least five times and reviewed the discovery package with him.[4] (Tr. of Habeas Hr'g [7.7] at 25:10, 23:22). Armstrong testified that, on July 15, 2009, the judge and district attorney offered Petitioner at 25-years sentence to serve 10 to 12 years in prison and the remainder on probation if he pleaded guilty. The offer, Petitioner was told, would expire on August 4, 2009. (Id. at 26:10).

Armstrong stated that "Mr. Curry was very reluctant to enter the plea." but that they discussed "the pros and cons" of the trial defense.[5] Petitioner's father was included in the discussion. Although his counsel believed the state had a strong case against Petitioner, they were prepared to proceed to trial up to the day of the plea hearing. (Id. at 30:11). Counsel also sent letters to Petitioner stating, "This is what we believe the state will allege; these are the rights you would surrender." (Id. at 39:12-19).

On August 4, 2009, Petitioner discussed the plea offer with his attorneys from approximately 9:00 a.m. to 4:30 p.m. During these discussions. Armstrong assured Petitioner that trial was still an option if he wanted to proceed, but that the 10 to 12 years to be served would "absolutely be off the table." (Id. at 30:14-20). The plea hearing was rescheduled to September 9, 2009. On September 9th, Petitioner spent the morning discussing the plea offer with his attorneys. That afternoon, he entered his plea. Armstrong testified that, "when the decision was actually made on the day of the plea, we had all come to the same conclusion, and Mr. Curry was absolutely making a knowing and intelligent plea." (Id. at 40:3-7).

Prior to entering his plea on September 9, 2009, Armstrong twice reviewed the Acknowledgement of Waiver of Rights form Petitioner was required to sign. She read each statement to him.[6] She testified that on either the first or second review of the form, she told him: "Look if you don't want to do this, don't do it. But if you're going into court and you're going to change your mind, just let me know ...

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