Hurd v. Mondragon

• Citation: 851 F.2d 324
• Decision Date: 07 July 1988
• Docket Number: No. 87-1354,87-1354
• Parties: Laurence HURD, Plaintiff-Appellant, v. Eloy MONDRAGON, Warden and Attorney General for the State of New Mexico, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 324

851 F.2d 324

Laurence HURD, Plaintiff-Appellant, v. Eloy MONDRAGON, Warden and Attorney General for the State of

New Mexico, Defendant-Appellee.

No. 87-1354.

United States Court of Appeals, Tenth Circuit.

July 7, 1988.

Glen R. Anstine, Denver, Colo., for plaintiff-appellant.

Anthony Tupler, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him on the brief), Santa Fe, N.M., for defendant-appellee.

Before SEYMOUR, MOORE, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Laurence Hurd, a state prisoner, brought the present action pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the District of New Mexico against Eloy Mondragon, the warden of the state penitentiary of New Mexico wherein Hurd is incarcerated, and the Attorney General of New Mexico, alleging, generally, that his state conviction and resultant confinement violated the United States Constitution. The federal district court denied relief and dismissed the petition with prejudice. Hurd appeals.

Although the sequence of events may well present "a procedural maze of enormous complexity," ¹ we must set forth the background facts in considerable detail. Once that is done, the disposition of this appeal, in our view, becomes apparent.

Hurd was charged in a New Mexico state court with the armed robbery of a state bank in Hobbs, New Mexico. At trial, it was the state's theory of the case that Hurd remained in his car while his two associates robbed the bank with firearms and that Hurd then drove the getaway car. ²

An alarm went off while the robbery was in progress to the end that the police arrived only a few minutes after the robbers left. A key government witness, Michelle Coutee, was in a parking lot near the bank at the time of the robbery. When the police arrived, she informed them that she had seen a "cream-colored Landau-type vehicle" pull out of the parking area, and just before the vehicle left the lot she had observed two "Spanish males" place some articles in the trunk of the vehicle and then get into the vehicle, which was driven by a third "Spanish male."

From the information given the police by Ms. Coutee, a report went out over the police radio describing a possible getaway car as a "cream-colored Landau-type vehicle" occupied by three Spanish males. About ten minutes after the robbery, police espied a vehicle matching the description given by Ms. Coutee, but the vehicle contained a black driver and two Spanish male passengers. The police stopped the car and, with drawn guns, ordered the three occupants out of the vehicle. They then asked Hurd, who was the driver, if they could search the interior of the car and, according to the police, Hurd agreed. Finding nothing of interest therein, the police then asked Hurd if they could search the trunk. According to the police, Hurd consented and gave them the keys to the trunk. ³ A search of the trunk revealed a piece of cardboard on the left hand side of the trunk, and under the cardboard was a sack containing currency taken in the robbery, two guns and false mustaches.

At trial, Hurd was represented by a court-appointed attorney. Prior to trial, counsel filed a motion to suppress the use at trial of the items seized in the search of the trunk of Hurd's vehicle. The basis for the motion was counsel's belief that the police did not have reasonable grounds to stop the vehicle because the police observed that there were two Spanish males and one black male in the car, whereas Ms Coutee had earlier advised the police that there were three Spanish males in the car. The unlawful stop, according to counsel, "tainted the fruit" obtained in the ensuing search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Hurd testified at the hearing on the motion to suppress and stated that although he had allowed the police to search the trunk of his vehicle, and gave them the key to open the trunk, he was "coerced" by the presence of police with drawn weapons. The district court, after hearing, denied the motion to suppress, holding that, all things considered, the police had reasonable grounds to stop the vehicle, notwithstanding the fact that the driver was a black male and not a Spanish male, and further that Hurd's consent was voluntary.

Ms. Coutee testified at trial and identified Hurd as the driver, but admitted that she initially believed the driver of the vehicle was a Spanish male. In this connection, after the police had stopped the vehicle and discovered the money taken in the robbery, as well as the guns and false mustaches, Ms. Coutee and certain bank officials were driven to the scene of the stop by other police. Ms. Coutee, while seated in a police car, observed Hurd and identified him at that time as the driver.

At the conclusion of the state's case, defense counsel moved for a directed verdict, based on the variance between Ms. Coutee's testimony in court and her earlier statement to the police concerning the driver of the vehicle. The motion was denied. Hurd then testified in his own behalf and stated that he and the two who robbed the bank had driven in his car from Carlsbad, New Mexico, to Hobbs, New Mexico, looking for work in the oil fields. He further testified that when he got out of the car to make a telephone call from a convenience store, the other two drove off and then returned in a few minutes and that the three were leaving Hobbs when they were stopped by the police. Hurd testified that he knew nothing about any robbery. One of the two robbers testified in Hurd's behalf, and he corroborated Hurd's testimony.

The jury convicted Hurd, and he was given a sentence of ten years imprisonment. Hurd appealed his conviction, and his trial counsel filed a docketing statement in the New Mexico Court of Appeals and then withdrew from the case.

Trial counsel listed two grounds for reversal in the docketing statement: (1) error by the trial court in denying Hurd's motion to suppress, and (2) error by the trial court in denying Hurd's motion for a directed verdict at the close of the state's case. After trial counsel withdrew, Hurd was represented on appeal by the state public defender's office.

The New Mexico Court of Appeals placed Hurd's appeal on its summary calendar. Counsel then filed a memorandum in opposition to summary affirmance and a motion to amend the docketing statement. In this latter connection, counsel sought to amend the docketing statement so as to include an objection to Ms. Coutee's in-court identification of Hurd as the driver of the getaway car, as the product of an impermissibly suggestive show-up arranged by the police at the scene where they stopped Hurd's vehicle. Such, argued counsel, was fundamental error.

The New Mexico Court of Appeals denied Hurd's motion to amend the docketing statement and affirmed Hurd's conviction in a four-page memorandum opinion. Hurd's motion for reconsideration was denied by the Court of Appeals, and a petition for certiorari was denied by the New Mexico Supreme Court.

In this general setting, Hurd, pursuant to 28 U.S.C. Sec. 2254, filed a pro se petition for habeas corpus in the United States District Court for the District of New Mexico. In that petition, Hurd listed no ground for relief. At this point, a federal public defender entered an appearance for Hurd and by amended petition listed the following two issues: (1) whether the in-court identification of Hurd was the result of an impermissibly suggestive show-up which deprived Hurd of his due process rights to a fair trial; and (2) whether Hurd's Fourth Amendment rights were violated by the search of his vehicle in that (a) the police had no probable cause or reasonable suspicion to stop the vehicle and (b) Hurd did not voluntarily consent to the search of his vehicle.

Mondragon, the warden of the State Penitentiary where Hurd was incarcerated, filed an answer wherein he alleged that Hurd's confinement was lawful. As concerns the first issue raised by Hurd in his amended petition, i.e., impermissibly suggestive show-up, the warden alleged that under the doctrine of deliberate procedural bypass without "cause" therefor, such was not a ground for federal habeas corpus relief, citing Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 reh'g denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296 (1982), and that the second issue raised by Hurd in his amended petition, i.e., unlawful search of his car, was also not a ground for federal habeas corpus relief under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 reh'g denied, 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976), Hurd having been afforded a full and fair hearing on that issue in the state court. Hurd then filed a "Memorandum on Procedural Default and Stone v. Powell."

The matter was assigned to a magistrate for proposed findings and recommendation. The magistrate ordered Hurd's state trial counsel deposed, and a transcript of that deposition was the only evidentiary matter before the magistrate when he made his report. Based on that deposition and the considerable documentary evidence before him, the magistrate made certain proposed findings and recommended that the petition be dismissed with prejudice. Specifically, the magistrate found that Hurd had exhausted his state post-conviction remedies on the two issues set forth in his amended petition as grounds for federal habeas corpus relief. Further, in his proposed findings the magistrate found that the failure by trial counsel to make an impermissibly suggestive show-up argument in state court was a tactical decision by counsel based on his understanding of the law and his experience in trying some 75 to 100 criminal cases and, under Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), such was not a ground for federal habeas corpus relief. The magistrate further found that Hurd...