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Fierro v. Smith

United States District Court, D. New Mexico

April 10, 2018

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

          MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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.

         In the 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.

         I. Background

         This 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.

         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 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).

         Petitioner 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).

         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). 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).

         Petitioner 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).

         In the 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. at 14-20.

         Petitioner responded by filing the Objections and the Motion to Stay. Liberally construed, [1] 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. at 3.

         Petitioner's 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.

         Respondents 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.

         Finally, 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.

         Most of 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 ...


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