United States District Court, D. New Mexico
ERIC R. FIERRO, Plaintiff,
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.
R. Fierro Hobbs, New Mexico Plaintiff Pro Se
MEMORANDUM OPINION AND ORDER
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.
AND PROCEDURAL BACKGROUND
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
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
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.
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). 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.
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
REGARDING PRO SE LITIGANTS
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).
REGARDING SUA SPONTE DISMISSAL ...