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Cunningham v. Conway

June 15, 2010

JAMES CUNNINGHAM, PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Petitioner, James Cunningham ("Cunningham"), was convicted by a jury of Murder in the Second Degree and Criminal Possession of a Weapon in the Third Degree, in New York's Erie County Court. The charges stem from the fatal stabbing of the victim, Effie Townes. Cunningham was sentenced principally to 25 years to life on the murder conviction.

Cunningham has now filed a habeas corpus petition before this Court pursuant to 28 U.S.C. § 2254, claiming several errors relating to the prosecution which he claims violated his constitutional rights. The Court referred this case to United States Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b) to review the petition and report to this Court on the proper disposition of the petition.

On March 18, 2010, Magistrate Judge Bianchini issued a thorough, 40 page, Report and Recommendation (Dkt. #19) recommending that the petition be denied and the case dismissed. Cunningham filed a response to that Report and Recommendation (Dkt. #26).

DISCUSSION

The Magistrate Judge discussed the facts listed at trial and they need not be repeated here in detail. Cunningham testified that the victim assaulted him first, after an argument. Cunningham admitted that both he and the victim had been drinking, and that he did not intend to hurt her seriously. He admitted stabbing the victim and admitted fleeing the scene. He claimed that he "went blank" (T. 229)*fn1

That testimony was substantially undercut by the People's proof relating to the autopsy performed on the 5' 3", 116 pound, victim. That report, noted by the Magistrate Judge, reported that the nine stab wounds in the victim were delivered with such force as to penetrate the bones in the victim's ribs.

Cunningham appealed his conviction to the Appellate Division, Fourth Department, and that court unanimously affirmed the conviction. 13 A.D.3d 1118 (2004). Cunningham sought leave to appeal from the New York Court of Appeals raising only two issues: that the trial court abused its discretion in allowing the People to recall a police witness and: (2) the trial court erred in not suppressing Cunningham's statements to the police. Leave to appeal was denied. 4 N.Y. 3d 829 (N.Y. 2005).

As noted by the Magistrate Judge in the Report and Recommendation, Cunningham raises here the same five issues that he raised on his direct appeal from the conviction.

The Magistrate Judge carefully reviewed the standards that apply in federal court when reviewing habeas corpus petitions alleging errors in state criminal proceedings. He summarized the exhaustion requirement and the adequate-and-independent-state-ground doctrine as well as the requirement that federal courts must give appropriate deference to state court judgments under provisions of the Antiterrorism and Effective Death Penalty Act of 1966 ("AEDPA").*fn2 The provisions of which are now quantified in 28 U.S.C. § 2254.

Statements to the Police

Cunningham made two statements to the police, both of which were admitted at trial. The Appellate Division in its decision on direct appeal determined that Cunningham was not in custody when he made the first statement and that although he was in custody when the second statement was taken, he received Miranda warnings and waived those rights. The court further found that Cunningham's statement was voluntary and not the product of any improper police conduct.

Magistrate Judge Bianchini discussed these issues at length (pp. 11-18) and concluded that the state courts did not unreasonably apply federal law on the issues presented by the use of Cunningham's statements at trial. I agree with that assessment.

The Magistrate Judge carefully analyzed the facts, the credibility of the witnesses and controlling law. The several state court findings are entitled to a presumption of correctness which Cunningham has failed to overcome. I agree with Magistrate Judge Bianchini's conclusion that Cunningham has failed to establish any ...


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