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Fierro v. Smith

United States District Court, D. New Mexico

July 6, 2018

ERIC FIERRO, Petitioner,
R.C. SMITH, Warden and HECTOR H. BALDERAS, Attorney General for the State of New Mexico, Respondents.


         THIS MATTER comes before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (“Petition”) (Doc. 1) and Amendment for Writ of Habeas Corpus and Exhibit's Attachments (“Amended Petition”) (Doc. 13), filed by Eric Fierro (“Petitioner”) on July 13, 2017 and November 27, 2017, and fully briefed on December 29, 2017 (Docs. 23, 27). Petitioner has also filed other miscellaneous motions and objections. Docs. 21, 22, 26, 27, 28, 30, 31. The Honorable Judith C. Herrera referred this case to me to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of the case. Doc. 5. Having reviewed the submissions of the parties and the relevant law, the Court recommends that relief be denied.

         I. Background Facts and Procedural Posture

         This case arises from Petitioner's conviction in the Second Judicial District Court, Bernalillo County, in the State of New Mexico, of eight counts of criminal sexual penetration in the first degree, sixteen counts of criminal sexual penetration in the second degree, three counts of criminal sexual penetration in the third degree, and two counts of bribery of a witness. Doc. 23-1 at 1-9.[1] Those counts stem from Petitioner's on-going sexual abuse of his stepdaughter in Bernalillo County, from the time she was six years old until she was sixteen years old. See Doc. 23-1 at 1-6; Doc. 24-6 at 37. Petitioner was also prosecuted and found guilty in the Thirteenth Judicial District Court, County of Sandoval, State of New Mexico of one count of criminal sexual penetration. State v. Fierro, Findings, Conclusion, and Order of the Court, D-1329-CR-2008-00611 (N.M. Dec. 1, 2010). That case stemmed from his further abuse of his stepdaughter in Sandoval County and specifically related to a child he fathered with his then- fourteen-year-old stepdaughter. Id.

         In the Bernalillo County case, Petitioner was indicted on July 8, 2004 (Doc. 23-7 at 7) and arraigned on July 19, 2004 (Doc. 23-7 at 7). His first trial did not begin until August 18, 2008, and the court declared a mistrial. Doc. 23-7 at 34. Re-trial began on January 12, 2009 (Doc. 23-7 at 35), and the jury found Petitioner guilty of 29 counts, as listed above (Doc. 23-7 at 35-56). The state court sentenced Petitioner on March 25, 2009 to 198 years of imprisonment. Doc. 23-1 at 1-9.

         Following his sentence, at the New Mexico Court of Appeals, Fierro asserted eight issues in his docketing statement (Doc. 23-3 at 25-31), but briefed only two issues: alleged speedy trial violations and ineffective assistance of counsel (Doc. 23-3 at 61-73). The Court of Appeals addressed both of those issues, and on February 20, 2012, affirmed Petitioner's conviction. Doc. 23-4 at 1-32. The New Mexico Supreme Court denied Fierro's Petition for Writ of Certiorari. Doc. 23-4 at 81.

         On April 17, 2013, Fierro sought collateral relief by filing a Petition for Writ of Habeas Corpus with the Second Judicial District Court in Bernalillo County. Doc. 23-5 at 1-36. The district court denied his petition (Doc. 23-5 at 93-94), and once again, the New Mexico Supreme Court denied a Petition for Writ of Certiorari (Doc. 23-7 at 6). Fierro initiated the instant collateral attack by filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus in federal court on July 13, 2017 (Doc. 1) and an amended petition on November 27, 2017 (Doc. 13). Petitioner asserts seven grounds for relief: (1) denial of right to a speedy trial; (2) denial of right to self-representation; (3) actual innocence; (4) Brady violation; (5) violation of double-jeopardy; (6) ineffective assistance of counsel; and (7) witness intimidation.

         II. Legal Standard

         Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), gives federal courts the statutory authority under to issue habeas corpus relief for persons in state custody. See Harrington v. Richter, 562 U.S. 86, 97-98 (2011). AEDPA “circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings, ” subject to only two exceptions. Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). A federal court may grant relief from a state court decision only where a petitioner demonstrates that the trial court's resolution of his claims was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Id. (quoting 28 U.S.C. § 2254(d)(1), (2)). In analyzing the state court's decision, this Court may only review the record that was before the state court and all factual findings are presumed correct unless rebutted by “clear and convincing evidence.” Id. (quoting 28 U.S.C. § 2254(e)).

         Under Section 2254(d)(1), the threshold question asks whether the applicant is seeking to invoke a rule of law that was clearly established by the Supreme Court at the time the conviction became final. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011) (citation omitted); see also Williams v. Taylor, 529 U.S. 362, 390 (2000). If the law was clearly established, then the court determines whether the state court decision was “contrary to or involved an unreasonable application of that clearly established law.” Byrd, 645 F.3d at 1165 (quoting Turrentine v. Mullin, 390 F.3d 1181, 1189 (10th Cir. 2004) (internal quotations omitted)).

         First, a state-court decision is “contrary to” clearly established law “if the state court applies a rule different from the governing law set forth” by the Supreme Court or “if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Hooks, 689 F.3d at 1163 (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The state court is not required to cite to, or even be aware of, Supreme Court decisions, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).

         Second, “[a] state-court decision is an ‘unreasonable application' of clearly established federal law when the state court ‘identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case.'” Hooks, 689 F.3d at 1163 (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). AEDPA precludes issuance of a writ simply because the federal court concludes in its independent judgment that the state court applied the federal law erroneously or incorrectly. Byrd, 645 F.3d at 1166. Instead, the application must also be “objectively unreasonable.” Id. As long as “fairminded jurists could disagree” as to the correctness of the state court's decision, Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), this “‘highly deferential standard for evaluating state-court rulings[ ]' . . . demands that state-court decisions be given the benefit of the doubt.” Hooks, 689 F.3d at 1163 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         Finally, even if a federal habeas court finds that the state court decision was contrary to or an unreasonable application of clearly established federal law, habeas relief may not issue unless the violation is of a sort that warrants such relief. See e.g., Williams, 529 U.S. at 375 (“It is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas.”); Wilson v. Sirmons, 536 F.3d 1064, 1073 (10th Cir. 2008) (“If we find that the state court erred, we still must determine whether the error is a structural defect ‘in the constitution of the trial mechanism, which def[ies] analysis by “harmless-error” standards.'”) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)), rehearing en banc granted on separate issue, 549 F.3d 1267 (10th Cir. 2008).

         III. Exhaustion

         Under 28 U.S.C. § 2254(b)(1)(A), a petition for writ of habeas corpus cannot be granted “unless it appears that the applicant has exhausted the remedies available in the courts of the State.” Exhaustion requires that a claim be pursued “through one complete round of the State's established appellate review process, giving the state courts a full and fair opportunity to correct alleged constitutional errors.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (citation and quotations omitted). Said another way, “a state prisoner seeking federal habeas relief generally must have first submitted each of his claims to the State's highest court.” Jernigan v. Jaramillo, 436 Fed.Appx. 852, 855 (10th Cir. 2011).

         If a petitioner does not exhaust all state court remedies, the federal court can still deny his or her petition on the merits. 28 U.S.C. § 2254(b)(2). “Exhaustion is, therefore, based on principles of comity; exhaustion is not jurisdictional.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). If a petition contains both exhausted and unexhausted claims, the court can

(1) dismiss the mixed petition in its entirety; (2) stay the petition and hold it in abeyance while the petitioner returns to state court to raise his unexhausted claims; (3) permit the petitioner to dismiss the unexhausted claims and proceed with the exhausted claims; or (4) ignore the exhaustion requirement altogether and deny the petition on the merits if none of the petitioner's claims has any merit.

Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009) (citations omitted). Under option four, “where the district court is convinced the unexhausted claim is without merit, or that the issue is easily resolvable against the [petitioner], the court may reach the merits of the claim rather than dismiss the petition.” Rudolph v. Galetka, 208 F.3d 227, at *1 (10th Cir. 2000) (table decision).

         Here, Petitioner asserts seven grounds for relief, and Respondents affirm that Petitioner exhausted all but two of those claims. Doc. 23 at 6. Those two claims, both sub-claims of ineffective assistance of counsel, allege a conflict of interest with the Public Defender's Office and maintain that Petitioner's attorney did not put on any of the witnesses that Fierro thought would be helpful to his defense. See Doc. 23 at 6. Respondents ask that the court proceed under option four, dismissing the unexhausted claims on the merits, along with Petitioner's exhausted claims. Doc. 23 at 6. As discussed below, the Court finds that the unexhausted claims are easily resolvable against Petitioner, and recommends denying them, in spite of Petitioner's lack of complete exhaustion.

         IV. State Decision on the Merits

         The deferential standards in Section 2254(d) apply to claims “adjudicated on the merits in State court proceedings . . . .” 28 U.S.C. § 2254(d); see also Harrington, 562 U.S. at 98. However, Section 2254 does not require that a state court provide a statement of reasons in order to receive deference. “The statute refers only to a ‘decision,' which resulted from an ‘adjudication.'” Harrington, 562 U.S. at 98. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100. When a claim is adjudicated on the merits by the state court, but the court's “decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Id. at 98. For federal habeas claims not adjudicated on the merits in the state courts, the court must review the claim de novo and the deferential standards of Section 2254(d) do not apply. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

         While the state courts clearly decided some of Petitioner's claims on the merits, whether they decided all the claims on the merits requires some analysis. The New Mexico Court of Appeals addressed Petitioner's claims of speedy trial and ineffective assistance of counsel on direct appeal and issued an opinion of its reasoning, denying both grounds for relief on the merits. Doc. 23-4 at 1- 32. The New Mexico District Court addressed Petitioner's remaining, exhausted grounds for relief on collateral attack. Doc. 23-5 at 93-94. Of those grounds, the district court clearly addressed self-representation on the merits, issuing a written order with its reasoning and denying the claim. Doc. 23-5 at 93-94.

         The district court also summarily denied Petitioner's remaining, exhausted grounds for relief, actual innocence, double jeopardy, Brady violation, witness intimidation, and ineffective assistance of counsel. Its only explanation for denial was that “[t]he State's response to Petitioners Claims . . . to be well taken, without need for comment.” Doc. 23-5 at 94. In the State's response, it noted that Petitioner failed to raise most of these claims on direct appeal and they should therefore not be considered on collateral attack. Doc. 23-5 at 84-88. However, the State also provided an argument as to why the court should deny each claim on the merits. Doc. 23-5 at 84-90. The state district court made no indication that it only denied these claims on procedural grounds when the State presented both procedural and merits arguments. Accordingly, it is presumed that the state district court denied these claims on the merits. See Harrington, 562 U.S. at 99. This Court, therefore, concludes that the state decisions are entitled to the deferential standards under Section 2254(d).

         V. Discussion

         Each of Petitioner's seven grounds for relief is discussed below.

         a. Speedy Trial

         Petitioner first asserts that the trial court violated his right to a speedy trial because he was indicted in 2004 but did not proceed to his first trial until 2009. Doc. 1 at 5; Doc. 13 at 1-2. He points to an Order from the New Mexico Supreme Court requiring that the state district court not extend Petitioner's trial past June 23, 2008. Doc. 23-2 at 38. The trial, in fact, was extended until August 18, 2008 (Doc. 23-7 at 34), and Petitioner asserts this is both a violation of the Supreme Court's Order and his right to a speedy trial (Doc. 13 at 1-2).

         The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” U.S. Const. amend. XI. The Supreme Court has identified four factors for courts to consider when determining if a defendant's right to a speedy trial has been violated: “length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). The first factor, length of delay, serves as the triggering event for a speedy trial analysis. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. at 531. “Delays approaching one year generally satisfy the requirement of presumptive prejudice.” United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (citation omitted).

         On direct appeal, the New Mexico Court of Appeals considered Petitioner's argument, balanced the Barker factors, and concluded that the trial court had not violated Petitioner's right to a speedy trial. Doc. 23-4 at 29. First, it found that the length of delay - fifty-five months - weighed heavily in Petitioner's favor. Doc. 23-4 at 15. Citing a New Mexico case, the court determined that the length of delay was presumptively prejudicial because the case involved only intermediate difficulty and the delay was over fifteen months. Doc. 23-4 at 15.

         Next, the court addressed the reasons for delay and considered different justifications at different times in the case. Doc. 23-4 at 16-24; see also Barker, 407 U.S. at 531 (“[D]ifferent weights should be assigned to different reasons.”). It concluded as follows:

• the State was responsible for the initial ten to eleven month delay while it waited on DNA test results, a justified delay which weighed minimally ...

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