United States District Court, D. New Mexico
THOMAS W. CUNNINGHAM, Petitioner,
ATTORNEY GENERAL of the STATE OF NEW MEXICO, Respondent.
ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER is before the Court on Chief Magistrate Judge Carmen
E. Garza's Proposed Findings and Recommended
Disposition (the “PFRD”), (Doc. 12), filed
July 11, 2018, and Petitioner Thomas W. Cunningham's
Petitioner Objection to the Proposed Findings and
Recommended Disposition (the “Objections”),
(Doc. 13), filed July 25, 2018. In the PFRD, the Chief
Magistrate Judge recommended that Mr. Cunningham's
Motion for Addendum to the Case, (Doc. 7), be
granted, and that his Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State
Custody (the “Petition”), (Doc. 1), be
denied. (Doc. 12 at 22).
parties were informed that objections to the PFRD were due
within fourteen days of the date the PFRD was filed.
Id. Mr. Cunningham timely objected to the PFRD.
(Doc. 13). Respondent did not object to the PFRD or respond
to the Objections, and the time for doing so has passed.
See Rule 12 of the Rules Governing Section 2254
Proceedings in the United States District Courts;
Fed.R.Civ.P. 72(B)(2). Following a de novo review of
the Petition, Motion for Addendum, PFRD, and Objections, the
Court will overrule the Objections, adopt the PFRD, grant the
Motion for Addendum, deny the Petition, and dismiss this case
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 state judge 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 state 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 state judge 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. The judge 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 convictions,
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 convictions.
(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
108-22. 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
computer aided dispatch (“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. Mr.
Cunningham subsequently filed his 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.
PFRD, the Chief Magistrate Judge first found that Mr.
Cunningham's Motion for Addendum to the Case,
(Doc. 7), in which he asks the Court to consider additional
documents, provides information that helps clarify Mr.
Cunningham's claims. (Doc. 12 at 7). Therefore, the Chief
Magistrate Judge recommended the motion be granted.
the Chief Magistrate Judge considered Mr. Cunningham's
claims, explaining that under § 2254 Mr. Cunningham must
show that the state courts' decisions were contrary to or
an unreasonable application of clearly established federal
law, or that they were unreasonable determinations of fact.
28 U.S.C. § 2254(d); Id. at 5-7. The Chief
Magistrate Judge found that the state courts' decisions
that Mr. Cunningham's counsel was not ineffective, and
that Mr. Cunningham was not convicted on the basis of
perjured testimony, were not contrary to or an unreasonable
application of clearly established federal law. Id.
at 9-14. In addition, the Chief Magistrate Judge found that
Mr. Cunningham received an opportunity for full and fair
litigation of his Fourth Amendment claim in state court;
therefore, pursuant to Stone v. Powell, 428 U.S.
465, 494 (1976), he may not relitigate that claim in his
federal habeas petition. Id. at 14-17. Finally, the
Chief Magistrate Judge found that Mr. Cunningham failed to
establish that his due process rights were violated based on
his allegations that: (1) the state failed to provide the
identity of the second officer at the ...