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Cunningham v. Attorney General of State of New Mexico

United States District Court, D. New Mexico

October 19, 2018

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

          ORDER ADOPTING CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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).

         The 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 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 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.

         At the 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.[1] The judge 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 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.

         In a 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.

         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 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).

         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. Mr. Cunningham subsequently filed his 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.

         In the 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. Id.

         Next, 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 ...


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