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Fierro v. Smith

United States District Court, D. New Mexico

December 18, 2017

ERIC FIERRO, Petitioner,
v.
R.C. SMITH, et al., Respondents.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          CARMEN E. GARZA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Eric Fierro's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Motion”), (Doc. 1), filed August 11, 2017; Respondents' Answer to Pro Se Petitioner Eric Fierro's Petition for Writ of Habeas Corpus (28 U.S.C. § 2254) [Doc. 1] (the “Response”), (Doc. 19), filed November 16, 2017; and Petitioner's Response to State Response for United States District Court Writ of Habeas Corpus (the “Reply”), (Doc. 21), filed November 27, 2017. United States District Judge Kenneth J. Gonzales referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (Doc. 22).

         The Court has reviewed the Motion, the Response, the Reply, and the relevant law. The Court has also reviewed Petitioner's various other motions asking for assorted relief. After considering the parties' filings, the record, and the relevant law, the Court RECOMMENDS that Petitioner's Motion be DENIED, that Petitioner's other pending motions be DENIED, and that this case be DISMISSED WITH PREJUDICE.

         I. Background

         This case arises from Petitioner's conviction for criminal sexual penetration (“CSP”) in the second degree in Sandoval County, New Mexico. On July 8, 2004, Petitioner was indicted for several counts of CSP in New Mexico's Second Judicial District in Bernalillo County, New Mexico. On June 7, 2007, nearly three years later, Petitioner moved to dismiss one count for improper venue, arguing the count allegedly occurred in Sandoval County, rather than Bernalillo County. The prosecution agreed and the charge was dismissed without prejudice so that it could be refiled.

         On December 4, 2008, Petitioner was indicted in the Thirteenth Judicial District, in Sandoval County, for six counts of CSP. (Doc. 19-1 at 4-7). The district court dismissed five of the counts as duplicative of those remaining in Bernalillo County, leaving one count charging Petitioner with CSP in the second degree. On January 7, 2009, Petitioner was convicted in Bernalillo County, and on December 1, 2010, Petitioner was convicted in Sandoval County. (Doc. 19-1 at 1-3; Doc. 19-2 at 92-96).

         Petitioner appealed both judgments. State v. Fierro, 2012-NMCA-054, 278 P.3d 541 (appealing Bernalillo County convictions); State v. Fierro, 2014-NMCA-004, 315 P.3d 319 (appealing Sandoval County conviction). Petitioner challenged his Sandoval County conviction arguing that: he was denied his right to a speedy trial, the pretrial delay denied him due process, the district court lacked jurisdiction over him, the indictment should have been quashed, and insufficient evidence supported his conviction. Fierro, 2014-NMCA-004, ¶ 1. The New Mexico Court of Appeals (“NMCOA”) affirmed on all grounds, id. ¶ 41, and the New Mexico Supreme Court denied Petitioner's petition for a writ of certiorari, (Doc. 19-4 at 44).

         Petitioner then filed a state petition for a writ of habeas corpus, seeking to vacate, set aside, or correct his sentence. (Doc. 19-4 at 47). Petitioner argued his conviction in Sandoval County constituted double jeopardy, that he was denied effective assistance of counsel, and that he was denied a fair trial due to prosecutorial misconduct. Id. at 47-48; 53-66. The state district court summarily dismissed the petition on April 5, 2016. Id. at 105. Petitioner again applied for a writ of certiorari from the New Mexico Supreme Court. (Doc. 19-5 at 1-4). The court denied Petitioner's request July 18, 2017, without an opinion. (Doc. 19-5 at 72).

         Petitioner has now timely filed his Motion asking to vacate, set aside, or correct his conviction for CSP in the second degree in Sandoval County. Similar to his direct appeal, Petitioner argues he was denied his right to a speedy trial, that the district court lacked jurisdiction over him, that his indictment should have been quashed, and that his conviction was not supported by sufficient evidence. (Doc. 1 at 5-10, 18-31). Petitioner asserts that he exhausted these theories in state court, either through direct appeal or through his state habeas corpus petition. (Doc. 1 at 6-12).

         Respondents counter that Petitioner is not entitled to relief under any of his arguments. Respondent argues broadly that Petitioner cannot show that his conviction is contrary to or an unreasonable application of federal law or that it results in an unreasonable determination of the facts in his case. (Doc. 19 at 1). In particular, Respondent first contends that Petitioner's speedy trial rights were not violated because he was the reason for most of the delay before he was tried. Id. at 10-12. Second, Respondent argues that Petitioner did not exhaust his jurisdictional argument, but that the Court should resolve the issue against Petitioner on the merits. Id. at 5. Third, Respondent claims Petitioner's indictment should not have been quashed and that he received appropriate relief below. Id. at 13-14. Finally, Respondent argues that the evidence was sufficient to convict Petitioner, and he cannot show the findings of fact were unreasonable. Id. at 15-17.

         In his Reply, Petitioner first states that he was allowed to file pro se motions before trial and that the motions were necessary. (Doc. 21 at 1-2). Further, Petitioner insists that the time of delay for speedy trial analysis began when he was first arrested, rather than when he was indicted. Id. at 2. Petitioner also maintains he exhausted the lack of jurisdiction argument. Id. at 3-4. Regarding quashing the indictment, Petitioner argues that the state was required to file the charge under an information rather than a second indictment. Id. at 4. As for sufficiency of the evidence, Petitioner argues that his victim's testimony was inconsistent and could not support his conviction. Id. at 5.

         II. Analysis

         A. Governing Law and Standards of Review

         Under 28 U.S.C. § 2254, a person in state custody may petition a federal court for relief on the ground that he is in custody in violation of the United States Constitution or laws. § 2254(a). A petition under § 2254 may not be granted unless the state court judgment: (1) resulted in a decision contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court; or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented. §§ 2254(d)(1)-2). Factual findings are presumed correct, and the petitioner must rebut that presumption by clear and convincing evidence. § 2254(e)(1).

         A state court decision is “contrary to” clearly established law if it “applies a rule that contradicts the governing law set forth” in Supreme Court cases, or if it “confronts a set of facts that are materially indistinguishable” from a Supreme Court decision and “nevertheless arrives at a result different from” the Supreme Court decision. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Similarly, a state court decision constitutes an “unreasonable application” of federal law when a state “unreasonably applies” Supreme Court precedent “to the facts of a prisoner's case.” Id. at 409. The state court decision must be more than incorrect or erroneous. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation and quotation omitted). “Rather, the application must be ‘objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409). This imposes a “highly deferential standard of review, ” and state court decisions must be given the benefit of the doubt. Id. (citation and quotation omitted).

         The Court may not grant a § 2254 petition unless the petitioner has “exhausted remedies available in the courts of the State.” § 2254(b)(1)(A). A petitioner has not exhausted available remedies “if he has the right under the law of the State to raise, by any available procedure, the question presented.” § 2254(c). In order to exhaust a claim, the “federal claim must be fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971); see also Anderson v. Harless, 459 U.S. 4 (1982). “Fair presentation” means “that the substance of the claim must be raised in state court.” Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009), abrogated on other grounds by Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). Both the “allegations and supporting evidence must offer the state courts ‘a fair opportunity to apply controlling legal principles to the facts bearing upon [a] constitutional claim.'” Id. (quoting Anderson, 459 U.S. at 6). This means both claims and arguments must be presented in state court. See Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999).

         A petitioner need only present a claim once, either through direct appeal or collateral review. See Brown v. Allen, 344 U.S. 443, 447 (1953) (stating it “is not necessary . . . for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review.”); Dever v. Kan. State Penitentiary, 288 F.3d 1231, 1235-36 (10th Cir. 2002) (“The exhaustion requirement is satisfied if the federal issue has been properly presented to the highest state court, either by direct review of the conviction or in a postconviction attack.”). However, a petitioner must have exhausted all claims in the § 2554 motion. Rose v. Lundy, 455 U.S. 509, 513-22 (1982); see Rhines v. Weber, 544 U.S. 269, 274-276 (2005) (discussing how § 2254 “preserved Lundy's total exhaustion requirement”).

         If a petitioner has not exhausted all claims in his § 2254 petition, the petition is “mixed” and the Court may: (1) dismiss the entire petition without prejudice; (2) stay the petition and hold it in abeyance while the petitioner exhausts the unexhausted claims; (3) allow the petitioner to dismiss the unexhausted claims and move forward only with the exhausted claims; or (4) ignore the exhaustion requirement and deny the petition on the merits if none of the claims are meritorious. Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009) (quoting Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). If the Court denies the petition, it must do so entirely either with or without prejudice; the Court cannot dismiss some claims with prejudice and others without prejudice. See Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) (stating “individual, unexhausted claims may be denied, but only if the result allows the court to determine the entire petition on the merits”); Hinzo v. Tapia, 378 Fed.Appx. 857, 858-59 (10th Cir. 2010) (unpublished) (reversing district court that dismissed some claims with prejudice and others without prejudice).

         B. Prior State Court Decisions

         In this case, Respondent concedes that Petitioner exhausted three of his four claims on direct appeal. (Doc. 19 at 4, 6). However, Respondent denies that Petitioner exhausted his lack of jurisdiction argument because he argued different grounds before the two state courts Id. at 5. In his Reply, Petitioner did not address whether or not he exhausted all of his claims. The Court will therefore review the underlying decisions in this case to determine both whether Petitioner exhausted all claims and whether the decisions violate § 2254(d).

         1. Trial Court's Findings of Fact and ...


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