Cunningham v. Horton et al
MEMORANDUM OPINION AND ORDER by Senior District Judge C. LeRoy Hansen dismissing 1 Petition for 2254 Relief with prejudice; Certificate of Appealability is denied (bap)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANNY A. CUNNINGHAM,
CIV No. 17-00354 LH/KRS
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court on Petitioner Danny A. Cunningham’s response to
Magistrate Judge Lourdes A. Martinez’s Order To Show Cause. [Docs. 7, 8] On April 27, 2017,
Magistrate Judge Martinez ordered Petitioner to show cause why his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 should not be dismissed as untimely under § 2244(d)(1)(A),
because it was filed more than fifteen years after Petitioner’s state conviction had become final.
[Doc. 5] In his response, Petitioner explains that he spent more than ten years attempting to
exhaust his state court remedies by filing a state habeas petition, but “three lawyers and three
inmate advocacy programs caused extraordinary long delays. One lawyer died, two did nothing,
and two advocacy programs ran out of funding.” [Doc. 7 at 7] Petitioner finally filed his state
habeas petition in 2011, the petition was denied in 2015, and the New Mexico Supreme Court
denied Petitioner’s petition for writ of certiorari on December 22, 2015. [Doc. 7 at 8] Petitioner
asks the Court to toll the one-year limitation period because he “did everything [he] could as fast as
possible.” [Doc. 7 at 8] The Court concludes that Petitioner is not entitled to equitable tolling
and, therefore, Petitioner’s § 2254 petition will be dismissed as untimely, a certificate of
appealability will be denied, and judgment will be entered.
On March 20, 2017, Petitioner filed a § 2254 petition challenging his conviction and
sentence in State of New Mexico v. Cunningham, D-503-CR-1998-123. [Doc. 1] According to
his § 2254 petition, Petitioner was convicted of murder and sentenced to life in prison in 1998.
[Doc. 1] See Kilgore v. Att’y Gen. of Colorado, 519 F.3d 1084, 1089 (10th Cir. 2008) (noting that
a district court can dismiss a habeas petition sua sponte if “untimeliness is clear from the face of
the petition”). Petitioner’s conviction was affirmed by the New Mexico Supreme Court on March
9, 2000 and Petitioner did not file a petition for writ of certiorari in the United States Supreme
Court. [Doc. 1 at 2-3] More than ten years later, on August 29, 2011, Petitioner filed his first
state habeas petition in the Fifth Judicial District Court of the State of New Mexico. [Doc. 1 at 3]
Petitioner’s state habeas petition was denied on January 29, 2015 and his writ of certiorari to the
New Mexico Supreme Court was denied on December 22, 2015. [Doc. 1 at 3-4]
On April 27, 2017, Magistrate Judge Martinez ordered Petitioner to show cause why his §
2254 petition should not be dismissed as untimely.
Magistrate Judge Martinez
explained that 28 U.S.C. § 2244(d) imposes a one-year limitation period on § 2254 petitions,
which begins to run, in relevant part, from “the date on which the judgment became final by
conclusion of direct review or the expiration of the time for seeking such review.” [Doc. 5 at 2
(quoting § 2244(d)(1)(A))]. Defendant’s conviction became final on June 7, 2000 – ninety days
after his conviction was affirmed on appeal by the New Mexico Supreme Court. See Locke v.
Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (holding that “a petitioner’s conviction is not final
and the one-year limitation period for filing a federal habeas petition does not begin to run until –
following a decision by the state court of last resort – after the United States Supreme Court has
denied review, or, if no petition for certiorari is filed, after the time for filing a petition for
certiorari with the Supreme Court has passed”) (internal quotation marks and citations omitted);
U.S. Sup. Ct. R. 13.1 (providing that a petition for writ of certiorari must be filed within 90 days of
the entry of judgment). Therefore, the one-year limitation period for filing a § 2254 petition
expired on June 7, 2001.
The present § 2254 petition was not filed until March 20, 2017, more than fifteen years
after the one-year limitation period had expired. Furthermore Petitioner did not initiate state
post-conviction proceedings until August 29, 2011, more than ten years after the one-year
limitation period had expired. Although the one-year limitation period may be tolled during the
pendency of state post-conviction proceedings pursuant to § 2244(d)(2), a state petition filed after
the expiration of the one-year limitation period does not toll the limitations period.
Gunderson v. Abbott, 172 F. App’x 806, 809 (10th Cir. 2006) (unpublished).
Petitioner’s § 2254 petition is untimely, unless the doctrine of equitable tolling applies.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable
tolling is appropriate only in “rare and exceptional circumstances,” Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000), and “the petitioner bears a strong burden to show specific facts to
support his claim of extraordinary circumstances and due diligence,” Yang v. Archuleta, 525 F.3d
925, 928 (10th Cir. 2008).
Petitioner contends that the one-year limitation period should be tolled because he spent
more than ten years diligently attempting to pursue the exhaustion of his state remedies by filing a
state habeas petition, but “three lawyers and three inmate advocacy programs caused extraordinary
long delays. One lawyer died, two did nothing, and two advocacy programs ran out of funding.”
[Doc. 7 at 7]
However, there is no “federal constitutional right to counsel in collateral
proceedings” and, therefore, the inability to obtain legal assistance or the provision of ineffective
legal assistance “is simply not an extraordinary circumstance that might warrant equitable tolling.”
Weibly v. Kaiser, 50 F. App’x 399, 402-03 (10th Cir. 2002) (rejecting the petitioner’s argument
that the doctrine of equitable tolling was applicable to the petitioner’s § 2254 petition because “his
attorney ‘jumped ship’”) (unpublished); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000) (holding that “ignorance of the law, even for an incarcerated pro se petitioner, generally
does not excuse prompt filing” and that delays caused by the prison legal access program “does not
relieve [petitioner] from the personal responsibility of complying with the law”); Fogle v. Estep,
220 F. App’x 814, 817 (10th Cir. 2007) (noting that the ineffective assistance of post-conviction
counsel does not entitle a petitioner to equitable tolling) (unpublished). Even if extraordinary
circumstances existed, the Court concludes that Petitioner has failed to fulfill his burden to
articulate specific facts indicating that he has been pursuing his rights diligently for the past fifteen
years. See Mack v. Falk, 509 F. App’x 756, 760 (10th Cir. 2013) (holding that the petitioner had
failed to establish that he acted with due diligence because he “provided the district court with no
indication as to how frequently he attempted to communicate with [his attorney], nor did he
articulate the timing, frequency, or types of assurances he received that predicated his own
inaction”) (unpublished). Therefore, the doctrine of equitable tolling does not excuse the late
filing of Petitioner’s § 2254 petition.
The Court recognizes that a claim of actual innocence is not subject to the one-year
limitation period in § 2244(d), Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010), and that
Petitioner’s § 2254 petition appears to allege that Petitioner actually is innocent of the crime of
first degree murder, because the crime “was an impulse shooting without premeditation”
committed “during a sudden quarrel in the heat of passion.” [Doc. 1 at 7] To raise a colorable
claim of actual innocence, a petitioner must “support his allegations of constitutional error with
new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995) (emphasis added). “[A] petitioner does not meet the threshold requirement
unless he persuades the district court in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” Id. at 329. “Actual innocence
claims focus on ‘new’ evidence—‘relevant evidence that was either excluded or unavailable at
trial.’” Johnson v. Medina, 547 F. App’x 880, 885 (10th Cir. 2013) (unpublished). Petitioner’s §
2254 petition fails to identify any new evidence that was either excluded or unavailable at trial1
and, therefore, the Court concludes that Petitioner has failed to raise a colorable claim of actual
“The district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rule 11(a) of the Rules Governing Section 2254 Cases In The
United States District Courts. To be entitled to a certificate of appealability, Petitioner must make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
In his § 2254 Petition, Petitioner alleges that “[t]he state withheld crucial exculpatory evidence; A. .41 caliber
revolver with knife attached for close combat . . . which was returned to victim’s family two years before trial, and
informed petitioner just shortly before trial.” [Doc. 1 at 11] Because this evidence was made available to Petitioner
before trial, it is not “new” evidence sufficient to support a colorable claim of actual innocence. See United States v.
Starr, 275 F. App’x 788, 790 (10th Cir. 2008) (concluding that the petitioner’s § 2255 petition was time-barred
because his claim of actual innocence was “not based on ‘new’ evidence, but rather on evidence that could have been
presented at trial. Any failure of counsel to adduce this evidence is more properly characterized as a claim for
ineffective assistance of counsel, and such a claim is barred by the applicable limitations period.”) (unpublished).
U.S. 322, 327 (2003). Reasonable jurists could not debate the Court’s conclusion that Petitioner’s
§ 2254 petition is untimely under § 2244(d)(1) and, therefore, a certificate of appealability will be
IT IS THEREFORE ORDERED that Petitioner’s § 2254 petition [Doc. 1] is DISMISSED
with prejudice; a certificate of appealability is DENIED; and judgment will be entered.
SENIOR UNITED STATES DISTRICT JUDGE
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