United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER is before the Court on Chief United States Magistrate
Judge Carmen E. Garza's Proposed Findings and
Recommended Disposition (the “PFRD”), (Doc.
24), filed December 18, 2017; Petitioner Eric Fierro's
Motion for Abeyance, Extension and Remand Back to the
District Court's of Both Bernalillo and Sandoval
County's to Amend and Exhaust All State Remedy's
(the “Motion to Stay”), (Doc. 27), and Pro Se
Motion of Objection's to Magistrate Court Ruleing (sic),
with Declaration's and Motion in Support of Withdrawal
and or Removal of Any and All Prior Petition's
Motion's or Document's Now Priorly (sic) Submitted to
the U.S. District Court of New Mexico (the
“Objections”), (Doc. 28), both filed January 2,
2018; Petitioner's Pro Se Motion Pursuant to Federal
Rules of Civil Procedure 60(b) at 1 (the “Rule
60(b) Motion”), (Doc. 29), filed January 5, 2018; and
Respondents' Response in Opposition to Pro Se
Petitioner Eric Fierro's Motion for Abeyance,
Extension, & Remand Back to the District Court's of
Both Bernalillo & Sandoval County's to Amend &
Exhaust All State Remedy's [sic] [Doc. 27] (the
“Response”), (Doc. 30), filed January 16, 2018.
PFRD, the Chief Magistrate Judge recommended denying
Petitioner's Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State
Custody (the “Petition”), (Doc. 1), because
Petitioner is not entitled to relief under § 2254. (Doc.
24 at 20). The parties were notified that objections to the
PFRD were due within fourteen days. Id. Petitioner
timely objected to the PFRD and filed the accompanying Motion
to Stay, and Respondent timely responded to the Motion to
Stay. See Rule 12 of the Rules Governing Section
2254 Proceedings in the United States District Courts;
Fed.R.Civ.P. 72(B)(2). Following de novo review of
the PFRD, Objections, Motion to Stay, Rule 60(b) Motion, and
Response, the Court will overrule Petitioner's
Objections, deny the Motion to Stay and Rule 60(b) Motion,
adopt the PFRD, and dismiss the Petition with prejudice.
case arises from Petitioner's trial and conviction for
criminal sexual penetration (“CSP”) in the second
degree in Sandoval County, New Mexico, and related charges in
Bernalillo County, New Mexico. On July 8, 2004, Petitioner
was indicted for several counts of CSP in the Second Judicial
District of New Mexico in Bernalillo County. Nearly three
years later, on June 7, 2007, Petitioner moved to dismiss one
of the counts for improper venue, arguing the count allegedly
occurred in adjacent Sandoval County. The prosecution agreed
and dismissed the count without prejudice.
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 because they were identical to the ones remaining in
Bernalillo County, leaving the one previously dismissed 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).
appealed both judgments. See 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). Pertinent to
the Petition, Petitioner challenged his Sandoval County
conviction arguing that: (1) he was denied his right to a
speedy trial; (2) the pretrial delay denied him due process;
(3) the district court lacked jurisdiction over him; (4) the
Sandoval County indictment should have been quashed; and (5)
insufficient evidence supported his conviction.
Fierro, 2014-NMCA-004, ¶ 1. The New Mexico
Court of Appeals 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). This time, Petitioner argued that: (1) his
conviction in Sandoval County constituted double jeopardy;
(2) he was denied effective assistance of counsel; and (3) he
was denied a fair trial due to prosecutorial misconduct.
Id. at 47-48; 53-66. The state district court
dismissed the petition without a hearing 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).
then timely filed his Petition pursuant to § 2254 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: (1) he was denied his right to a
speedy trial; (2) the district court lacked jurisdiction over
him; (3) his indictment should have been quashed; and (4) his
conviction was not supported by sufficient evidence. (Doc. 1
at 5-10, 18-31). Petitioner asserts that he exhausted these
claims in state court, either through direct appeal or
through his state habeas corpus petition. (Doc. 1 at 6-12).
PFRD, the Chief Magistrate Judge first found that Petitioner
had not exhausted all the claims in his Petition. Exhaustion
under § 2254 requires that every claim and every
argument supporting that claim be presented to a state court.
Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir.
1999). Although Petitioner claimed that the Sandoval County
district court lacked jurisdiction over him on appeal and in
the Petition, Petitioner changed his argument from a
procedural state-law argument to a substantive federal-law
argument, making that claim unexhausted. (Doc. 24 at 13).
Nonetheless, Respondents urged the Court to evaluate the
merits of Petitioner's claims. The Chief Magistrate Judge
did so and recommended denying the Petition entirely, along
with the miscellaneous motions Petitioner filed. Id.
responded by filing the Objections and the Motion to Stay.
Liberally construed,  both ask the Court to allow plaintiff to
withdraw his Petition without prejudice or stay this case
until Petitioner exhausts his unexhausted claim. (Doc. 28 at
1; Doc. 27 at 1-3). Petitioner also states he plans to file
seventeen other claims of constitutional rights violations.
(Doc. 28 at 12-13, 17-41). These claims consist of various
case citations and statements that Petitioner's rights
were violated. For instance, Petitioner claims his right to
effective assistance of counsel was violated because of
budgetary crises the New Mexico Public Defender's Office
faced. (Doc. 28 at 34-41). Finally, Petitioner asks for
appointment of counsel to develop these claims. Id.
only objections to the PFRD are to the Chief Magistrate
Judge's analysis of Petitioner's speedy trial claim
and his claim that his indictment should have been quashed.
First, Petitioner asserts that any pretrial delay was not his
fault. (Doc. 28 at 7-8). Second, Petitioner argues that
because previously suppressed evidence was used to indict
him, the indictment should have been quashed or a mistrial
should have been declared. Id. at 9-11.
did not respond to Petitioner's Objections, but they did
respond to the Motion to Stay. Respondents recognize the
Court has the authority to equitably toll the Petition, but
they argue Petitioner is not entitled to equitable tolling.
(Doc. 30 at 2). Respondents also oppose Petitioner's
request for counsel. Id. at 2-3.
Petitioner filed a Rule 60(b) Motion, asking for relief from
judgment for “excusable neglect.” See
Fed. R. Civ. P. 60(b)(1) (providing party may obtain relief
from final judgment for “mistake, inadvertence,
surprise, or excusable neglect”). Petitioner asserts
excusable neglect for “filing violations” in this
case and accuses Respondents, namely Warden R. C. Smith, of
violating his right to access the court. (Doc. 29 at 1).
Specifically, Petitioner states his right to access the court
is being violated because he has a learning disability that
Respondents are not accommodating. Id. at 3-4.
Petitioner also states his right to the courts is being
infringed because the only time he can perform legal research
is the same time he is allowed to go outside and practice his
religion. Id. at 5-6.
the Rule 60(b) Motion describes actions related to a
different case, Granado v. LNU, 16-cv-859-KG-SCY.
Petitioner alleges that Respondents retaliated against
another prisoner, Augustin Granado, preventing him and his
proposed co-plaintiffs, including Petitioner, from
prosecuting their case against Respondents. Id. at
6-7. Petitioner states that Mr. Granado's case was
dismissed because of his failure to meet ...