Fierro v. Smith et al

Filing 41

ORDER by District Judge Judith C. Herrera adopting Report and Recommendations 34 ; overruling Objections 21 , 22 , and 38 ; denying Petitions 1 and 3 ; denying Motions 26 , 28 , 31 and 39 ; and denying the issuance of a Certificate of Appealability. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ERIC FIERRO,
Petitioner,
vs.
CIV 17-0738 JCH/KBM
R.C. SMITH, Warden and
HECTOR H. BALDERAS,
Attorney General for the
State of New Mexico,
Respondents.

ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings of
Fact and Recommended Disposition (“PF&RD”) (Doc. 34), filed July 6, 2018. Petitioner was
convicted in the Second Judicial District Court, 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. Eric Fierro filed this Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus (“Petition”) (Doc. 1) and an Amendment for Writ of Habeas Corpus (“Amended
Petition”) (Doc. 13), asserting seven grounds for relief: (1) denial of the right to a speedy trial;
(2) denial of the right to self-representation; (3) actual innocence; (4) Brady violation;
(5) violation of double-jeopardy; (6) ineffective assistance of counsel; and (7) witness
intimidation. Petitioner also filed numerous other motions and objections, asking for assorted
relief. See Docs. 21, 22, 26, 28, 31. The Magistrate Judge issued a PF&RD recommending that

the Petition and Amended Petition be denied and the various other motions and objections be
overruled or denied. Doc. 34 at 28. Respondents raised no objections to the PF&RD (Doc. 35, ¶
5), while Petitioner filed a 56-page Response and Objections to Proposed Findings of Fact and
Recommended Disposition Filed by Judge Karen B. Molzen (“Objections”) (Doc. 38) on August
6, 2018, along with a Pro Se Motion Seeking Answer to a Question of Law from U.S. District
Court Judge JCH Pursuant to D.N.M.LR. 1.7 (“Motion”) (Doc. 39).
When a party files timely objections to a magistrate judge’s recommendation, the district
court will conduct a de novo review of the portion objected to and “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1). De novo review requires the district judge to consider relevant evidence of
record and not merely to review the magistrate judge’s recommendations. In re Griego, 64 F.3d
580, 583-84 (10th Cir. 1995). “[A] party’s objections to the magistrate judge’s [PF&RD] must be
both timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. One Parcel of Real Prop., with Buildings, Appurtenances,
Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).
In his Objections, Petitioner argues that he is entitled to “a brief in chief of the Supreme
Court of New Mexico’s decision.” Doc. 38 at 4. As the Court has already explained, this Court
has no authority to order the New Mexico Supreme Court to elaborate on its written ruling, nor
would it be inclined to interfere in such a manner. Doc. 6. Petitioner also objects to the Court’s
orders which granted extensions of time for Respondents to answer. But because Respondents
have filed an answer (Doc. 23), Petitioner’s objections are moot.
Petitioner’s Objections also repeat the arguments addressed in the PF&RD concerning
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the right to a speedy trial, ineffective assistance of counsel, witness intimidation, right to selfrepresentation, Brady violation, violation of the right to be free from double jeopardy, and actual
innocence. Having conducted a de novo review of the Petition and Amended Petition, the Court
finds that the Objections lack merit and that Petitioner is not entitled to relief on any ground for
the reasons stated in the PF&RD. The Court also denies Petitioner’s Motion, which reiterates his
speedy trial argument, because the New Mexico Court of Appeals’ thorough application of the
Barker factors in denying relief is neither contrary to nor an unreasonable application of clearly
established federal law. See Doc. 23-4 at 15-29; see also Barker v. Wingo, 407 U.S. 514, 530
(1972).
Finally, Petitioner argues that he did not agree “to proceed on with the unexhausted
claims,” contained in his Petition and Amended Petition, and that “[t]he Court cannot claim that
the unexhausted claims did not have merit when they determined the claims did have merit in
initial proceedings.” Doc. 38 at 3. However, the Court never found that any claims in the Petition
or Amended Petition were meritorious. Rather, the Court initially found that the Petition was not
subject to summary dismissal (Doc. 8) and upon further review, the Magistrate Judge found that
all the claims Petitioner presented for review, including exhausted and unexhausted claims,
lacked merit (Doc. 34). The undersigned agrees with the Magistrate Judge that the unexhausted
claims are easily resolvable against Petitioner and therefore dismisses them on the merits, along
with the exhausted claims. See Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009).
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. Petitioner’s Objections to the Proposed Findings of Fact and Recommended Disposition
(Doc. 38) are OVERRULED;
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2. The Magistrate Judge’s Proposed Findings of Fact and Recommended Disposition
(Doc. 34) is ADOPTED;
3. The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1) and the
Amendment for Writ of Habeas Corpus and Exhibit’s Attachments (Doc. 13) are
DENIED;
4. Petitioner’s Objections on the Order Granting Extension of Time to Answer (Docs. 21,
22) are OVERRULED;
5. Petitioner’s Motions for Summary Judgment (Docs. 26, 28) are DENIED;
6. Petitioner’s Motion for Status and Evidentiary Hearing (Doc. 31) is DENIED;
7. Petitioner’s Motion Seeking Answer to a Question of Law (Doc. 39) is DENIED;
8. This action is DISMISSED with prejudice;
9. For the reasons stated in the Magistrate Judge’s proposed findings and the Court’s order
adopting those findings, Petitioner has failed to make a substantial showing of a denial of
a constitutional right. Therefore, a certificate of appealability is DENIED; and
10. A Final Order pursuant to Rule 58 of the Federal Rules of Civil Procedure will be entered
dismissing this action with prejudice.

UNITED STATES DISTRICT JUDGE

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