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Fierro v. State

United States District Court, D. New Mexico

September 26, 2019

ERIC R. FIERRO, Plaintiff,
v.
STATE OF NEW MEXICO, NEW MEXICO PUBLIC DEFENDER’S OFFICE, WARDEN STEPHONSON, JOHN MCCALL, TROY PRITCHARD, DONALD KOCHERSBERGER, MICHAEL ROSENFELD, DAVID POTTENGER, WILL O’CONNELL, Defendants.

          Eric R. Fierro Hobbs, New Mexico Plaintiff Pro Se

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court under 28 U.S.C. §§ 1915(a) and 1915(e)(2)(B) and Federal Rules of Civil Procedure 12(b)(6) on the Plaintiff’s Complaint for Violation of Civil Rights filed by Plaintiff Eric R. Fierro, filed December 7, 2018 (Doc. 1)(“Complaint”). The Court will dismiss the Complaint for failure to state a claim on which relief can be granted.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff Eric R. Fierro is a prisoner incarcerated at the Lea County Correctional Facility. (Complaint at 2). Fierro was arrested in June, 2004. In January, 2009, a jury in Bernalillo County convicted Fierro of eight counts of first degree criminal sexual penetration (threat/coercion), sixteen counts of second degree criminal sexual penetration (child 13-16), four counts of third degree criminal sexual contact of a minor (child under 13), and two counts of bribery of a witness. See State v. Fierro, 2012-NMCA-054, 278 P.3d 541. Following a bench trial in Sandoval County, Fierro also was convicted of an additional count of second degree criminal sexual penetration resulting in pregnancy. See State v. Fierro, 2014-NMCA-004, 315 P.3d 319. Fierro is serving a 198 year sentence New Mexico’s Corrections Department’s custody. See United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(quoting St. Louis Baptist Temple v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979)(stating that the court may take judicial notice of publicly filed records in its court and other courts concerning matters that bear directly upon the disposition of the case before the court)).

         Fierro appealed both of his state criminal convictions. On appeal, he claimed violation of his speedy trial rights and ineffective assistance of counsel. The Court of Appeals of New Mexico affirmed both convictions, concluding that: (i) substantial evidence supports the convictions; (ii) Fierro’s speedy trial rights were not violated; and (iii) Fierro did not demonstrate any ineffective assistance of counsel. The Court of Appeals of New Mexico stated:

Defendant has failed to identify any deficiencies on the part of any of his attorneys that prejudiced his defense; he merely claims that the long delay to trial must be a product of his attorneys’ ineffectiveness. . . . it appears that the conflict was due to Defendant’s dissatisfaction with his attorneys’ strategic decision to prepare for trial, instead of to continuously pursue Defendant’s speedy trial claims. . . . Defendant has failed to make any showing, much less a showing to a reasonable probability, that, but for the alleged errors of his attorneys, the result of his trial would have been different.

State v. Fierro, 2012-NMCA-054, 278 P.3d at 553. See State v. Fierro, 2014-NMCA-004, 315 P.3d 323-329. The Supreme Court of New Mexico denied certiorari in both appeals. See State v. Fierro, 2012-NMCERT-004, 293 P.3d 886; State v. Fierro, 321 P.3d 127 (D.N.M. 2013)(table).

         Fierro filed his Complaint. See Complaint at 1. The Complaint identifies Augustin F. Granado, Jr., Jessie L. Garcia, Preston Blake, and David Otero as additional plaintiffs “at the discretion of the Judge & Court, ” but only Fierro signs the Complaint. See Complaint at 2, 4-5, 23. The Court previously has advised Fierro that he may not represent any other individual, and the additional individuals are not proper parties to this proceeding. See Pro Se Prisoner Case Management Order, filed December 18, 2018 at 1-2 (Doc. 6).[1] Fierro names, as Defendants, the State of New Mexico, the New Mexico Public Defender’s Office, Lea County Correctional Facility Warden Stephonson, and six attorneys who represented Fierro in New Mexico state criminal proceedings -- John McCall, Troy Pritchard, Donald Kochersberger, Michael Rosenfeld, David Pottenger, and Will O’Connell. See Complaint 1, 2, 5-6. The Complaint also lists attorney Eric Turner, but the Complaint does not identify Mr. Turner as a Defendant. See Complaint at 20.

         In his Complaint, Fierro alleges:

“The starting date of claim’s is June 26th 2004 to the present date of filing. The under lying fact’s are as follow’s: #1.) Plaintiff received Ineffective Assistance of counsel’s all from the outset of his case. #2. The act’s of counsel’s in number 1. did allow The State of New Mexico to illegally now prosecute my case, out of time, to even prosecute it (one at all.)”

Complaint at 3. Fierro seeks relief in the form of “monetary compensation punitive, compensatory damages & to over-turn my conviction, & change to the public defender’s indigent defense systems.” Complaint at 23.

         LAW REGARDING PRO SE LITIGANTS

         When a party proceeds pro se, the district court construes his or her pleadings liberally, and holds them to a “less stringent standard than [that standard applied to] formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[I]f the Court can reasonably read the pleadings to state a valid claim on which [the petitioner] could prevail, it should do so despite [his] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d at 1110. The Court should liberally construe the pro se litigant’s factual allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). The Court will not, however, “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d at 1110. Moreover, “pro se status does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).

         LAW REGARDING SUA SPONTE DISMISSAL ...


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