United States District Court, D. New Mexico
THOMAS W. CUNNINGHAM, Petitioner,
ATTORNEY GENERAL of the STATE OF NEW MEXICO, Respondent.
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
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.
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.
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.
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
The court reminded the parties they had until ten days before
the trial to disclose their witnesses. (Doc. 1-2 at 63).
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.
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.
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.
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).
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.
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.
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).
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).
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.
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.
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.
Petitioner's Motion for ...