United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
E. GARZA, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Petitioner Eric
Fierro's Petition Under 28 U.S.C. Â§ 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. Â§ 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).
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.
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.
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
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).
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).
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).
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.
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.
Governing Law and Standards of Review
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. §
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).
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).
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
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).
Prior State Court Decisions
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 §
Trial Court's Findings of Fact and ...