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Cunningham v. Attorney General of State

United States District Court, D. New Mexico

July 11, 2018

THOMAS W. CUNNINGHAM, Petitioner,
v.
ATTORNEY GENERAL of the STATE OF NEW MEXICO, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Petitioner Thomas W. Cunningham's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), (Doc. 1), filed January 4, 2018, and Respondent Hector Balderas' Answer to Thomas Wayne Cunningham's Pro Se Petition for Writ of Habeas Corpus (28 U.S.C. § 2254) [Doc. 1] (the “Answer”), (Doc. 11), filed March 21, 2018. Also before the Court is Petitioner's Motion for Addendum to the Case, (Doc. 7), filed January 9, 2018. United States District Judge Kenneth J. Gonzales referred this case to Chief Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 5). Having considered the parties' filings and the relevant law, the Court RECOMMENDS that Petitioner's Motion for Addendum to the Case, (Doc. 7), be GRANTED, the Petition, (Doc. 1), be DENIED, and this case be DISMISSED WITH PREJUDICE.

         I. Background

         This case arises from Mr. Cunningham's April 4, 2012 arrest by Officer Chris Luttrell of the Albuquerque Police Department. (Doc. 11 at 2). Officer Luttrell states he saw Mr. Cunningham in the front passenger seat of a parked pickup truck in an unlighted loading area of a shopping center, that Valentino Romero was in the driver's seat, and an unidentified third party stood between Mr. Cunningham and the open passenger-side door. Id. Officer Luttrell states Mr. Cunningham engaged in a hand-to-hand transaction with the person standing by the passenger-side door, and that this individual quickly walked away from the scene when Officer Luttrell approached the truck. Id. at 3. Officer Luttrell further states he observed Mr. Cunningham attempt to hide what turned out to be a bag containing illegal narcotics and contraband. Id.

         On May 29, 2013, the trial court held a hearing on Mr. Cunningham's motion to suppress the evidence that led to his arrest, at which Officer Luttrell was questioned by Mr. Cunningham's counsel and the court, and was cross-examined by counsel for the prosecution. (Doc. 1-2 at 1-66). At the hearing, Mr. Cunningham's counsel stated he had received “in the mail, an affidavit purportedly from Mr. Romero” which included a description of the encounter with Officer Luttrell that differs from Officer Luttrell's testimony, and that the affidavit stated that “[t]he police lied about the events of that night.” Id. at 7. Defense counsel further stated that “[w]hen we did a witness interview of Mr. Romero, he essentially disavowed that affidavit, ” and that the affidavit would not be submitted into evidence.” Id. at 7.

         At the end of the hearing, the trial judge found Officer Luttrell had reasonable suspicion to investigate what he believed was possible criminal behavior, and that this investigation developed into probable cause to arrest Mr. Cunningham. Id. at 56. The Court and the parties then discussed the upcoming trial. Mr. Cunningham's counsel informed the court that Mr. Cunningham had remembered the presence of a second officer on the scene and that Mr. Cunningham wanted to put this other officer on the witness list. Id. at 61. Counsel for the prosecution stated: “We have no information of [a second officer], so there's no way we could provide such an officer [as a witness], because we don't have any documents.” Id. at 62.[1] The court reminded the parties they had until ten days before the trial to disclose their witnesses. (Doc. 1-2 at 63).

         On June 11, 2013, after a jury trial, Mr. Cunningham was convicted for possession of cocaine, heroin, drug paraphernalia, and marijuana. (Doc. 11-1). He was sentenced as a habitual offender to a total term of imprisonment of 8 years and 14 days, with 2 years and 14 days suspended. Id. at 5. Mr. Cunningham began serving a 5-year term of supervised probation on November 24, 2015. Id. at 8-10.

         On December 16, 2013, Mr. Cunningham appealed his conviction, arguing: (1) the trial court erred in denying his motion to suppress the contraband seized from the truck; and (2) the evidence was insufficient to support his convictions. Id. at 42-61. The New Mexico Court of Appeals proposed summary affirmance of Mr. Cunningham's convictions, id. at 62-74, after which Mr. Cunningham amended his appeal to add two claims: (1) the trial court denied his right to due process by limiting the defense's questioning of Officer Luttrell for impeachment purposes; and (2) defense counsel was ineffective for failing to call Mr. Romero as a witness, id. at 75-104.

         In a Memorandum Opinion issued March 15, 2016, the New Mexico Court of Appeals affirmed Mr. Cunningham's conviction. (Doc. 11-2 at 108-26). It held that Officer Luttrell had reasonable suspicion to detain Mr. Cunningham because: (1) the truck was parked in an unlighted area at 10:00 p.m., away from businesses that would be open at that hour; (2) Officer Luttrell observed a hand-to-hand transaction between Mr. Cunningham and an individual who quickly walked away from the scene as Officer Luttrell approached; and (3) Officer Luttrell observed Mr. Cunningham's attempt to hide what turned out to be a bag containing contraband. Id. at 108-122. The New Mexico Court of Appeals further held Mr. Cunningham failed to make a prima facie showing of ineffective assistance of counsel, and did not address the due process claim. Id. at 123-26. Mr. Cunningham filed a petition for a writ of certiorari, (Doc. 11-3 at 1-17), which was denied by the New Mexico Supreme Court on May 9, 2016, id. at 18-19.

         On August 1, 2016, Mr. Cunningham filed a state petition for a writ of habeas corpus, asserting: (1) his trial counsel was ineffective for failing to investigate and obtain the CAD report that would have shown the presence of a second officer at the scene; (2) his trial counsel had a conflict of interest because he stated he did not try to obtain the CAD report because he did not believe Mr. Cunningham's account as to the second officer's presence; (3) his convictions were obtained on Officer Luttrell's perjured testimony; (4) the investigatory detention was an illegal search and seizure; (5) he was denied a meaningful cross-examination of Officer Luttrell; (6) the prosecutor suppressed the second officer's identity; and (7) the transcript of the suppression hearing was altered to remove testimony proving Officer Luttrell testified falsely. Id. at 21-123, (Docs. 11-4, 11-5). The state district court summarily dismissed the habeas petition, stating that Mr. Cunningham's counsel's failure to retrieve the CAD report did not rise to the level of ineffective assistance of counsel. (Doc. 11-6 at 4-7).

         Mr. Cunningham then filed a petition for a writ of certiorari with the New Mexico Supreme Court on December 7, 2016. Id. at 8-35. After ordering the State to file a response addressing Mr. Cunningham's ineffective assistance of counsel claim, id. at 36, the New Mexico Supreme Court summarily denied Mr. Cunningham's petition for a writ of certiorari, id. at 56. Petitioner subsequently filed the instant Petition.

         In his Petition, Mr. Cunningham raises four grounds for relief: (1) he received ineffective assistance of counsel; (2) he was convicted on the basis of Officer Luttrell's perjured testimony; (3) he was wrongfully arrested; and (4) he was denied due process. (Doc. 1 at 5-10). Respondent does not dispute that Mr. Cunningham has exhausted available state court remedies as to all four of these claims, and states that the claims may be evaluated on their merits. (Doc. 11 at 5-7). However, Respondent contends Mr. Cunningham is not entitled to relief on his claims. Id. at 11-25.

         II. Analysis

         A. Governing Law and Standards of Review “A pro se litigant's pleadings are to be construed liberally.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Despite liberal construction of a pro se litigant's pleadings, however, courts cannot “assume the role of advocate” for him. Id. Courts “are not required to fashion [a pro se party's] arguments for him where his allegations are merely conclusory . . . and without supporting fact[s].” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

         Under 28 U.S.C. § 2254, a person in state custody may petition a federal court for relief on the ground that his detention violates the United States' Constitution or laws. § 2254(a). A petition under § 2254 may not be granted unless the state court judgment: (1) resulted in a decision contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented. §§ 2254(d)(1)-(2). Federal courts must presume factual findings are correct, and a petitioner must present clear and convincing evidence to rebut that presumption. § 2254(e)(1).

         A state court decision is “contrary to” clearly established law if it: (1) “applies a rule that contradicts the governing law set forth” in Supreme Court cases; or (2) if it “confronts a set of facts that are materially indistinguishable” from a Supreme Court decision and “nevertheless arrives at a result different from” the Supreme Court decision. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Similarly, a state court decision constitutes an “unreasonable application” of federal law when a state “unreasonably applies” Supreme Court precedent “to the facts of a prisoner's case.” Id. at 409. The state court decision must be more than incorrect or erroneous. Renico v. Lett, 559 U.S. 766, 773 (2010). “Rather, the application must be ‘objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409). This imposes a “highly deferential standard of review, ” and state court decisions must be given the benefit of the doubt. Id.

         The Court must be “doubly deferential” to a state court's decision when a petitioner claims ineffective assistance of counsel and a state court has decided the claim against the petitioner on the merits. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The Court must defer to the state court's determination that counsel's performance was not deficient and to counsel's decisions on how to represent the client.

         See Crawley v. Dinwiddie, 584 F.3d 916, 922 (10th Cir. 2009). In applying these standards, the question before the Court is whether a state court's decision was unreasonable, not simply incorrect. Knowles, 556 U.S. at 123.

         B. Petitioner's Motion for ...


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