United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
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.
Background Facts and Procedural Posture
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
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.
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.
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.
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
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)).
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)).
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).
“[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)).
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.
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).
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
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.
State Decision on the Merits
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).
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.
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).
Petitioner's seven grounds for relief is discussed below.
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).
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).
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.
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 ...