United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTIONS FOR
CONSOLIDATION AND TO APPOINT COUNSEL
the Court is Petitioner Eric Fierro's Motion for a
Joinder for Habeas Corpus. (Doc. 9). Petitioner appears to
seek consolidation of his two 28 U.S.C. § 2254 habeas
corpus proceedings pending before this Court. Also before the
Court is Petitioner's Motion Requesting the Appointment
of Counsel in connection with those proceedings. (Doc. 14).
For the reasons below, the Court will deny both Motions.
is an inmate at the Lea County Correctional Facility. He
filed two § 2254 petitions this summer challenging two
separate criminal convictions. In case no. 17-cv-0832 KG/CG,
Petitioner challenges his state court conviction for two
counts of criminal sexual penetration in New Mexico's
Thirteenth Judicial District Court. See State v.
Fierro, D-1329-CR-2008-00611) (the “Thirteenth
Judicial Conviction”). Petitioner was convicted in 2010
following a bench trial in Sandoval County, New Mexico and
sentenced to nine years imprisonment. See Doc. 1 in
17-cv-0832 KG/CG; Findings, Conclusions, and Order entered
December 1, 2010 in D-1329-CR-200800611; Judgment entered
December 1, 2010 in D-1329-CR-200800611. Petitioner seeks
relief from the Thirteenth Judicial Conviction based on
speedy trial violations, lack of jurisdiction, and
insufficient evidence. See Doc. 1 in case no.
case (17-cv-0738 JCH/KBM), Petitioner challenges his state
court conviction for 28 counts of criminal sexual penetration
and two counts of bribery of a witness in New Mexico's
Second Judicial District Court. See State v. Fierro,
D-202-CR-2004-02692) (the “Second Judicial
Conviction”). Petitioner was convicted in 2009
following a jury trial in Bernalillo County, New Mexico and
sentenced to 198 years imprisonment. See Doc. 1 in
17-cv-0738; Verdicts entered February 4, 2009 in
D-202-CR-2004-0269; Judgment entered March 25, 2009 in
D-202-CR-2004-0269. Petitioner seeks relief under § 2254
based on alleged speedy trial violations, denial of the right
to self-representation, actual innocence, evidentiary issues,
double jeopardy, and ineffective assistance of counsel.
See Doc. 1 in 17-cv-0738.
asserts the two § 2254 proceedings should be
consolidated because “there has been a big mix up with
the Court filing.” See Doc. 9 at 1 in
17-cv-0738. According to Petitioner, all information relevant
both habeas petitions has been filed in case no. 17-cv-0832
KG/CG. Id. Petitioner also asks the Court to appoint
counsel in case no. 17-cv-0738 JCH/KBM. See Doc. 14
in 17-cv-0738. As grounds, Petitioner argues the public
defender “appointed to [his] [criminal] case did not
properly raise all the issues in my case.” Id.
of actions is governed by Fed.R.Civ.P. 42(a). Rule 42(a)
provides that “[i]f actions before the court involve a
common question of law or fact, the court may …
consolidate the actions.” The decision whether to
consolidate actions is discretionary. See Shump v.
Balka, 574 F.2d 1341, 1344 (10th Cir. 1978). Relevant
considerations include whether consolidation would promote
convenience, expedition, and economy while affording justice
to the parties. Id.; Servants of the Paraclete v. Great
American Insurance Co., 866 F.Supp. 1560, 1572 (D.N.M.
habeas proceedings do not involve common questions of law or
fact. He challenges separate criminal convictions, the cases
were tried in separate counties, and the petitions raise
different grounds for habeas relief. The Court has also
carefully reviewed the docket entries in both cases, and it
does not appear that any documents have been filed in the
wrong proceeding. Petitioner labeled each document with the
relevant case number, and the arguments/requests for relief
in each motion appear to pertain to the correct § 2254
petition. Therefore, no grounds exist for consolidation, and
the Court will deny the Motion for Joinder (Doc. 9).
Appointment of Counsel in Case No. 17-cv-738.
is no constitutional right to counsel in habeas proceedings.
Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir.
2008). Unless and until an evidentiary hearing is warranted,
“[t]he decision to appoint counsel is left to the sound
discretion of the district court.” Engberg v.
Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). Factors
guiding such discretion include “the merits of the
litigant's claims, the nature of the factual issues
raised in the claims, the litigant's ability to present
his claims, and the complexity of the legal issues raised by
the claims.” Williams v. Meese, 926
F.2d 994, 996 (10th Cir. 1991). The burden is on the
petitioner “to convince the court that there is
sufficient merit to his claim to warrant the appointment of
counsel.” Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1115 (10th Cir. 2004) (internal citations
the above factors, the Court is not convinced that counsel
should be appointed at this time. The claims are not
particularly unusual or complex, and it is at least
questionable whether Petitioner will prevail on the facts
alleged. Further, beyond citing issues with his former
counsel, Petitioner has not demonstrated an inability to
prosecute the habeas petition. The Motion Requesting the
Appointment of Counsel will therefore be denied.
ORDERED that the Motion for a Joinder for Habeas Corpus (Doc.
9) and the Motion Requesting the ...