Fierro v. Smith, et al.

Filing 24

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 1 Petitioner's Petition under 28 U.S.C. Section 2254 for Writ of Habeas Corpus by a Person in State Custody be DENIED as outlined in t he Proposed Findings and Recommended Disposition. Objections to PF&RD due by 1/2/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC FIERRO,
Petitioner,
No. CV 17-832 KG/CG
v.
R.C. SMITH, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Eric Fierro’s Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Motion”),
(Doc. 1), filed August 11, 2017; Respondents’ Answer to Pro Se Petitioner Eric Fierro’s
Petition for Writ of Habeas Corpus (28 U.S.C. § 2254) [Doc. 1] (the “Response”), (Doc.
19), filed November 16, 2017; and Petitioner’s Response to State Response for United
States District Court Writ of Habeas Corpus (the “Reply”), (Doc. 21), filed November 27,
2017. United States District Judge Kenneth J. Gonzales referred this case to Magistrate
Judge Carmen E. Garza to perform legal analysis and recommend an ultimate
disposition. (Doc. 22).
The Court has reviewed the Motion, the Response, the Reply, and the relevant
law. The Court has also reviewed Petitioner’s various other motions asking for assorted
relief. After considering the parties’ filings, the record, and the relevant law, the Court
RECOMMENDS that Petitioner’s Motion be DENIED, that Petitioner’s other pending
motions be DENIED, and that this case be DISMISSED WITH PREJUDICE.
I.

Background

This case arises from Petitioner’s conviction for criminal sexual penetration
(“CSP”) in the second degree in Sandoval County, New Mexico. On July 8, 2004,
Petitioner was indicted for several counts of CSP in New Mexico’s Second Judicial
District in Bernalillo County, New Mexico. On June 7, 2007, nearly three years later,
Petitioner moved to dismiss one count for improper venue, arguing the count allegedly
occurred in Sandoval County, rather than Bernalillo County. The prosecution agreed
and the charge was dismissed without prejudice so that it could be refiled.
On December 4, 2008, Petitioner was indicted in the Thirteenth Judicial District,
in Sandoval County, for six counts of CSP. (Doc. 19-1 at 4-7). The district court
dismissed five of the counts as duplicative of those remaining in Bernalillo County,
leaving one count charging Petitioner with CSP in the second degree. On January 7,
2009, Petitioner was convicted in Bernalillo County, and on December 1, 2010,
Petitioner was convicted in Sandoval County. (Doc. 19-1 at 1-3; Doc. 19-2 at 92-96).
Petitioner appealed both judgments. State v. Fierro, 2012-NMCA-054, 278 P.3d
541 (appealing Bernalillo County convictions); State v. Fierro, 2014-NMCA-004, 315
P.3d 319 (appealing Sandoval County conviction). Petitioner challenged his Sandoval
County conviction arguing that: he was denied his right to a speedy trial, the pretrial
delay denied him due process, the district court lacked jurisdiction over him, the
indictment should have been quashed, and insufficient evidence supported his
conviction. Fierro, 2014-NMCA-004, ¶ 1. The New Mexico Court of Appeals (“NMCOA”)
affirmed on all grounds, id. ¶ 41, and the New Mexico Supreme Court denied
Petitioner’s petition for a writ of certiorari, (Doc. 19-4 at 44).

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Petitioner then filed a state petition for a writ of habeas corpus, seeking to
vacate, set aside, or correct his sentence. (Doc. 19-4 at 47). Petitioner argued his
conviction in Sandoval County constituted double jeopardy, that he was denied effective
assistance of counsel, and that he was denied a fair trial due to prosecutorial
misconduct. Id. at 47-48; 53-66. The state district court summarily dismissed the
petition on April 5, 2016. Id. at 105. Petitioner again applied for a writ of certiorari from
the New Mexico Supreme Court. (Doc. 19-5 at 1-4). The court denied Petitioner’s
request July 18, 2017, without an opinion. (Doc. 19-5 at 72).
Petitioner has now timely filed his Motion asking to vacate, set aside, or correct
his conviction for CSP in the second degree in Sandoval County. Similar to his direct
appeal, Petitioner argues he was denied his right to a speedy trial, that the district court
lacked jurisdiction over him, that his indictment should have been quashed, and that his
conviction was not supported by sufficient evidence. (Doc. 1 at 5-10, 18-31). Petitioner
asserts that he exhausted these theories in state court, either through direct appeal or
through his state habeas corpus petition. (Doc. 1 at 6-12).
Respondents counter that Petitioner is not entitled to relief under any of his
arguments. Respondent argues broadly that Petitioner cannot show that his conviction
is contrary to or an unreasonable application of federal law or that it results in an
unreasonable determination of the facts in his case. (Doc. 19 at 1). In particular,
Respondent first contends that Petitioner’s speedy trial rights were not violated because
he was the reason for most of the delay before he was tried. Id. at 10-12. Second,
Respondent argues that Petitioner did not exhaust his jurisdictional argument, but that
the Court should resolve the issue against Petitioner on the merits. Id. at 5. Third,

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Respondent claims Petitioner’s indictment should not have been quashed and that he
received appropriate relief below. Id. at 13-14. Finally, Respondent argues that the
evidence was sufficient to convict Petitioner, and he cannot show the findings of fact
were unreasonable. Id. at 15-17.
In his Reply, Petitioner first states that he was allowed to file pro se motions
before trial and that the motions were necessary. (Doc. 21 at 1-2). Further, Petitioner
insists that the time of delay for speedy trial analysis began when he was first arrested,
rather than when he was indicted. Id. at 2. Petitioner also maintains he exhausted the
lack of jurisdiction argument. Id. at 3-4. Regarding quashing the indictment, Petitioner
argues that the state was required to file the charge under an information rather than a
second indictment. Id. at 4. As for sufficiency of the evidence, Petitioner argues that his
victim’s testimony was inconsistent and could not support his conviction. Id. at 5.
II.

Analysis
A. Governing Law and Standards of Review
Under 28 U.S.C. § 2254, a person in state custody may petition a federal court

for relief on the ground that he is in custody in violation of the United States Constitution
or laws. § 2254(a). A petition under § 2254 may not be granted unless the state court
judgment: (1) resulted in a decision contrary to or involved an unreasonable application
of clearly established federal law, as determined by the Supreme Court; or (2) resulted
in a decision based on an unreasonable determination of the facts in light of the
evidence presented. §§ 2254(d)(1)-2). Factual findings are presumed correct, and the
petitioner must rebut that presumption by clear and convincing evidence. § 2254(e)(1).

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A state court decision is “contrary to” clearly established law if it “applies a rule
that contradicts the governing law set forth” in Supreme Court cases, or if it “confronts a
set of facts that are materially indistinguishable” from a Supreme Court decision and
“nevertheless arrives at a result different from” the Supreme Court decision. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). Similarly, a state court decision constitutes an
“unreasonable application” of federal law when a state “unreasonably applies” Supreme
Court precedent “to the facts of a prisoner’s case.” Id. at 409. The state court decision
must be more than incorrect or erroneous. Renico v. Lett, 559 U.S. 766, 773 (2010)
(citation and quotation omitted). “Rather, the application must be ‘objectively
unreasonable.’” Id. (quoting Williams, 529 U.S. at 409). This imposes a “highly
deferential standard of review,” and state court decisions must be given the benefit of
the doubt. Id. (citation and quotation omitted).
The Court may not grant a § 2254 petition unless the petitioner has “exhausted
remedies available in the courts of the State.” § 2254(b)(1)(A). A petitioner has not
exhausted available remedies “if he has the right under the law of the State to raise, by
any available procedure, the question presented.” § 2254(c). In order to exhaust a
claim, the “federal claim must be fairly presented to the state courts.” Picard v. Connor,
404 U.S. 270, 275 (1971); see also Anderson v. Harless, 459 U.S. 4 (1982). “Fair
presentation” means “that the substance of the claim must be raised in state court.”
Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009), abrogated on other grounds
by Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). Both the “allegations and
supporting evidence must offer the state courts ‘a fair opportunity to apply controlling
legal principles to the facts bearing upon [a] constitutional claim.’” Id. (quoting Anderson,

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459 U.S. at 6). This means both claims and arguments must be presented in state
court. See Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999).
A petitioner need only present a claim once, either through direct appeal or
collateral review. See Brown v. Allen, 344 U.S. 443, 447 (1953) (stating it “is not
necessary . . . for the prisoner to ask the state for collateral relief, based on the same
evidence and issues already decided by direct review.”); Dever v. Kan. State
Penitentiary, 288 F.3d 1231, 1235-36 (10th Cir. 2002) (“The exhaustion requirement is
satisfied if the federal issue has been properly presented to the highest state court,
either by direct review of the conviction or in a postconviction attack.”). However, a
petitioner must have exhausted all claims in the § 2554 motion. Rose v. Lundy, 455
U.S. 509, 513-22 (1982); see Rhines v. Weber, 544 U.S. 269, 274-276 (2005)
(discussing how § 2254 “preserved Lundy’s total exhaustion requirement”).
If a petitioner has not exhausted all claims in his § 2254 petition, the petition is
“mixed” and the Court may: (1) dismiss the entire petition without prejudice; (2) stay the
petition and hold it in abeyance while the petitioner exhausts the unexhausted claims;
(3) allow the petitioner to dismiss the unexhausted claims and move forward only with
the exhausted claims; or (4) ignore the exhaustion requirement and deny the petition on
the merits if none of the claims are meritorious. Fairchild v. Workman, 579 F.3d 1134,
1156 (10th Cir. 2009) (quoting Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). If
the Court denies the petition, it must do so entirely either with or without prejudice; the
Court cannot dismiss some claims with prejudice and others without prejudice. See
Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002) (stating “individual,
unexhausted claims may be denied, but only if the result allows the court to determine

6

the entire petition on the merits”); Hinzo v. Tapia, 378 Fed. Appx. 857, 858-59 (10th Cir.
2010) (unpublished) (reversing district court that dismissed some claims with prejudice
and others without prejudice).
B. Prior State Court Decisions
In this case, Respondent concedes that Petitioner exhausted three of his four
claims on direct appeal. (Doc. 19 at 4, 6). However, Respondent denies that Petitioner
exhausted his lack of jurisdiction argument because he argued different grounds before
the two state courts Id. at 5. In his Reply, Petitioner did not address whether or not he
exhausted all of his claims. The Court will therefore review the underlying decisions in
this case to determine both whether Petitioner exhausted all claims and whether the
decisions violate § 2254(d).
1. Trial Court’s Findings of Fact and Conclusions of Law
On December 1, 2010, the Thirteenth Judicial District Court in Sandoval County,
New Mexico, issued brief findings and fact and conclusions of law following a bench
trial. (Doc. 19-2 at 92-93). First, the court found the victim testified she had sexual
intercourse with Petitioner while under threat of harm to herself and her family. Id. at 92.
The court found the victim was 14 years old when this occurred, that it occurred in
Sandoval County, New Mexico, and that the victim gave birth to a child approximately
nine months after the incident. Id. The court further found that Petitioner was victim’s
stepfather and that he exercised undue influence over her in inducing her to have
intercourse with him. Id. DNA samples were taken from the child, victim, and Petitioner,
and DNA analysis concluded there was a 99.99% chance Petitioner was the father of
the victim’s child. Id. at 92-93.

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Given these factual findings, the court concluded beyond a reasonable doubt that
Petitioner was guilty of CSP in the second degree under two alternative theories: CSP
resulting in personal injury, to wit, pregnancy, in violation of NMSA 1978, § 30-911(D)(3) (2003, amended 2009), id. at 93; and CSP of a person between thirteen and
sixteen years old by a person in position of authority, in violation of Section 30-911(D)(1), id. Petitioner was sentenced to nine years for each count, to run concurrently
with each other and consecutively to his sentence based on the Bernalillo County
convictions. Id. at 94-95.
2. Direct Appeal
Petitioner appealed his conviction on five grounds: first, that he was denied his
right to a speedy trial; second, that the delay between his arrest and trial denied him
due process; third, that the district court in Sandoval County lacked jurisdiction after
Petitioner was first indicted in Bernalillo County; fourth, that the indictment should have
been quashed after the grand jury heard impermissible evidence; and finally that
insufficient evidence supported his conviction. Fierro, 2014-NMCA-004, ¶ 1.
a. Speedy Trial Claim
First, the court analyzed Petitioner’s speedy trial claim. The court acknowledged
that its analysis was governed by the four-factor test announced in Barker v. Wingo, 407
U.S. 514, 530 (1972). Id., ¶ 6. The four factors are: (1) the length of delay; (2) the
reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to
the defendant. Id. Under the first factor, the NMCOA held that because the state did not
act in bad faith or forum shop, the delay should be measured from when Petitioner was
indicted the second time. Id., ¶ 13. Measuring from that date, Petitioner suffered a

8

twenty-three month delay. Id. Although Petitioner argued the time should have been
measured from when he was first arrested and charged in Bernalillo County, the
NMCOA declined to do so because the Sandoval County charges were dismissed on
Petitioner’s motion. Id., ¶ 12. Still, the court found this factor weighed slightly in
Petitioner’s favor because the delay was presumptively unreasonable. Id.
The court next found that Petitioner caused most of the delay by filing numerous
motions, including many motions filed pro se despite the fact Petitioner was represented
by counsel. Id., ¶ 17. The state requested extensions of time prior to trial, but two of the
requests were made to address Petitioner’s pretrial dispositive motions. Id. Accordingly,
because the state did not intentionally delay trial, this factor did not weigh in Petitioner’s
favor. Id., ¶ 18.
Under the third factor, the NMCOA determined Petitioner’s assertion of his right
to a speedy trial weighed only slightly in his favor. Id., ¶ 19. Petitioner “timely and
frequently asserted his right to a speedy trial,” but he “coupled” those assertions with
numerous motions, “which served to slow the proceedings.” Id., ¶ 20. The court found it
inconsistent to call for a speedy trial while also filing motions and requesting pretrial
hearings. Id.
Finally, the court discussed whether Petitioner suffered prejudice. Petitioner was
required to show particular prejudice, such as oppressive pretrial incarceration, unusual
anxiety or concern, or damage to his defense. Id., ¶¶ 21-24 (citing State v. Garza, 2009NMSC-038, ¶¶ 35-39, 146 N.M. 499, 212 P.3d 387). Although he claimed that he
suffered unusual anxiety and concern, Petitioner did not substantiate these claims. Id., ¶
24. Petitioner also asserted his defense was impaired because one of his witnesses

9

would have testified that the victim and her mother fabricated the charges against
Petitioner, but the witness died before trial. Id., ¶ 21; see generally State v. Fierro, 2012NMCA-054, ¶¶ 59-60, 278 P.3d 541. Despite this charge, Petitioner “provided no other
evidence about this witnesses’ potential testimony.” Id., ¶ 25; see Fierro, 2012-NMCA054, ¶ 60 (affirming district court finding that witness’s potential testimony was “wholly
speculative,” and that despite its alleged importance, Petitioner made no effort to
preserve the testimony). Accordingly, the court found Petitioner failed to demonstrate he
was prejudiced and that his right to a speedy trial was not violated. Id., ¶ 26.
b. Pre-Indictment Delay
Petitioner’s second argument was that he was subject to an unconstitutionally
long pre-indictment delay. Id., ¶ 27. In order to show a violation of his constitutional
rights, Petitioner had to show that his defense was prejudiced and that the state
intentionally caused the delay to gain a tactical advantage. Id. (quoting State v. Palmer,
1998-NMCA-052, ¶ 4, 125 N.M. 86, 957 P.2d 71). Here, as before, Petitioner did not
show that his defense was prejudiced or that the state intentionally delayed trial. Id., ¶
28-29. Accordingly, the court concluded the pretrial delay did not infringe Petitioner’s
constitutional rights. Id., ¶ 29.
c. Whether the Sandoval County District Court had Jurisdiction
Petitioner next contended that the district court in Sandoval County lacked
jurisdiction over him since he was first indicted in Bernalillo County. Id., ¶ 30. Petitioner
argued the state was required to “‘follow through’” with trying Petitioner in Bernalillo
County or lose jurisdiction. Id. The NMCOA disagreed. First, the court stated that
jurisdiction lies when the trier of fact can infer from the evidence that the crime occurred

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in New Mexico, and that a crime must be prosecuted in the jurisdiction where the crime
occurred. Id., ¶ 31. The court then recited evidence showing Petitioner committed the
crime in Sandoval County. Id. Moreover, though, the court reiterated that Petitioner
moved to dismiss the Sandoval County charge because venue was improper in
Bernalillo County, and that he could not change venue and then complain of a lack of
jurisdiction. Id., ¶ 32.
d. Whether Petitioner’s Indictment should have been quashed
Next, Petitioner argued the indictment should have been quashed because the
grand jury heard inadmissible evidence. Id., ¶ 33. Specifically, the state provided the
grand jury with Petitioner’s confession, which was obtained prior to informing him of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). Id., ¶ 34. The NMCOA held that
the proper remedy in such a circumstance is suppression of the evidence at trial. Id.;
see United States v. Blue, 384 U.S. 251, 255 (1966). Because the district court
suppressed Petitioner’s pre-Miranda confession, the NMCOA held that quashing the
indictment was unnecessary. Id.
e. Whether Sufficient Evidence Supported Petitioner’s Conviction
Finally, Petitioner challenged the sufficiency of the evidence supporting his
conviction. The court noted that Petitioner was charged with CSP in the second degree
on two alternative theories: first, CSP through the use of force or coercion resulting in
personal injury, to wit pregnancy; and second, CSP of a victim between thirteen and
sixteen years old by a person in a position of authority. Id., ¶ 36; (Doc. 19-1 at 4-5). The
court listed the elements necessary to prove each of the charges. Fierro, 2014-NMCA004, ¶ 36.

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The court then recited the evidence before the district court, in particular the
victim’s testimony that Petitioner, her stepfather, impregnated her when was fourteen
years old; that he stated he would kill her, her family, and himself if she told anyone;
and that she felt compelled to have sex with Petitioner because he was her stepfather
and in a position of authority over her. Id., ¶ 37. The victim gave birth to a child in July
2000. Id. A DNA analyst obtained samples from Petitioner, the victim, and the resulting
child, and concluded there was at least a 99.9% chance Petitioner fathered his victim’s
daughter. Id., ¶ 38.
On review, the NMCOA considered the above evidence sufficient to convict
Petitioner under either theory. Id., ¶ 39. The victim’s testimony showed that Petitioner
threatened to kill her and her family in order to coerce her into sex, proving the elements
of the first theory. Id. Likewise, the DNA evidence proved beyond a reasonable doubt
that Petitioner, who was in a position of authority over the victim as her stepfather,
fathered victim’s child, providing sufficient evidence for the second theory. Id. Although
Petitioner argued that the evidence was presented after a long delay and his victim’s
testimony was unreliable, the NMCOA emphasized that the fact-finder must reconcile
conflicts in the evidence and determine credibility. Id., ¶ 40. The court therefore affirmed
Petitioner’s conviction. Id., ¶ 41. On Petitioner’s application, the New Mexico Supreme
Court denied a writ of certiorari. State v. Fierro, 321 P.3d 127 (Dec. 13, 2013)
(unpublished); (Doc. 19-4 at 44).
3. State Petition for Writ of Habeas Corpus
After the New Mexico Supreme Court denied a writ of certiorari, Petitioner filed a
state petition for a writ of habeas corpus. (Doc. 19-4 at 47-66). Petitioner raised three

12

grounds for relief: his rights against double jeopardy were violated by his convictions in
Bernalillo County and Sandoval County; he received ineffective assistance of counsel;
and he was denied a fair trial due to prosecutorial misconduct. Id. at 47-48. On April 5,
2016, Petitioner’s state petition was summarily dismissed. Id. at 105. Petitioner again
petitioned the New Mexico Supreme Court for a writ of certiorari. (Doc. 19-5 at 1-4).
After ordering a response on the double jeopardy issue, id. at 91-92, the court again
denied Petitioner’s petition for a writ of certiorari without an opinion.
C. Whether Petitioner exhausted the issues in the Motion
As discussed, Petitioner must have exhausted all grounds raised in the Motion.
In this case, Petitioner alleges that he was not afforded a speedy trial, that the Sandoval
County district court lacked jurisdiction because the second indictment caused a denial
of Petitioner’s speedy trial rights, that the indictment should have been quashed
because the grand jury heard his pre-Miranda confession, and that his conviction was
not supported by sufficient evidence. (Doc. 1 at 5-10). Three of these claims mirror the
claims Petitioner argued on appeal: speedy trial; that the indictment should have been
quashed for impermissible evidence; and insufficient evidence to support the conviction.
Fierro, 2014-NMCA-004, ¶¶ 6-26, 30-40. Regarding jurisdiction, Petitioner previously
argued that the state forfeited jurisdiction in Sandoval County after indicting him in
Bernalillo County. Id., ¶ 30-31. This argument is different than the one Petitioner raises
in the Motion, which is that the second indictment resulted in an unnecessary delay and
violation of Petitioner’s speedy trial rights. (Doc. 1 at 7). Because Petitioner raises a
different argument than he raised before, he has not exhausted this issue. See
Smallwood, 191 F.3d at 1267. Still, Respondent asks the Court to deny the Motion in its

13

entirety on the merits, which the Court may do. Fairchild, 579 F.3d at 1156. The Court
will therefore consider the merits of each of Petitioner’s claims.
D. Whether the State Courts’ Decisions Violate § 2254(d)
1. Speedy Trial Claim
Whether a defendant’s right to a speedy trial has been violated depends on the
four-factor balancing test announced in Barker, 407 U.S. at 530-33. As the NMCOA
recognized, the four factors are: the length of the delay; the reason for the delay; the
defendant’s assertion of the right; and prejudice to the defendant. Id. at 530. The
Supreme Court explained that the length of delay is a trigger: without a presumptively
prejudicial delay, there’s no reason to analyze the other factors. Id. at 530-31.
Regarding the reason for the delay, a deliberate attempt to delay as a tactical
advantage weighs heavily against the government, while delay attributable to the
defendant weighs against him. Id. at 529, 531. A defendant bears the responsibility of
asserting his right to a speedy trial, and failure to do so is strong evidence against
finding denial of the right. Id. at 531-32. As for prejudice, the Supreme Court wrote that
a defendant’s inability “to prepare his case skews the fairness of the entire system.” Id.
“If witnesses die or disappear during delay, the prejudice is obvious.” Id.
In this case, the NMCOA accurately described and analyzed these factors before
deciding they weighed slightly in Petitioner’s favor, but that Petitioner’s claim failed
because he showed no concrete prejudice. Fierro, 2014-NMCA-004, ¶ 26. The court
acknowledged that defendants do not always need to show particular prejudice, but that
in Petitioner’s case the factors did not weigh heavily in his favor. Id. While Petitioner
insists that the factors weigh more heavily in his favor than Respondent admits, (Doc.

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21 at 3), Petitioner has not shown that the NMCOA’s weighing of the factors was
contrary to or an unreasonable application of federal law as announced by the Supreme
Court. See § 2254(d)(1).
Although the Supreme Court stated that if a witness dies the prejudice is
“obvious,” Barker, 407 U.S. at 532, the NMCOA found that Petitioner suffered no
prejudice even though a potential witness died. Fierro, 2014-NMCA-004, ¶ 25. The
NMCOA reasoned that because Petitioner failed to produce evidence that the witness
would have testified in Petitioner’s favor, Petitioner was not prejudiced. Id.; see Fierro,
2012-NMCA-054, ¶ 60 (finding potential witness’ testimony “wholly speculative”). New
Mexico law states that defendants must “make a particularized showing of prejudice that
resulted from the asserted loss of a witness.” Id. (citing State v. Coffin, 1999-NMSC038, ¶ 71, 128 N.M. 192, 991 P.2d 477). Federal courts have also required defendants
to provide evidence of a witness’ testimony and take steps to preserve that testimony.
See Jackson v. Ray, 390 F.3d 1254, 1264-65 (10th Cir. 2004) (denying a per se rule
that a witness’ death impairs defense); United States v. Harris, 566 F.3d 422, 433 (5th
Cir. 2009). The Court therefore does not believe the NMCOA’s finding was contrary to
or an unreasonable application of Barker. The Court therefore finds that the NMCOA’s
speedy trial analysis did not violate § 2254(d)(1).
2. Jurisdictional Argument
Second, Petitioner argues that his trial and conviction violated his due process
rights because the Sandoval County district court did not have jurisdiction over him.
(Doc. 1 at 7). Petitioner contends the Sandoval County district court lacked jurisdiction

15

because the dismissal in Bernalillo County and refiling in Sandoval County resulted in
unnecessary delay and a denial of his right to a speedy trial. Id.
First, to the extent Petitioner argues that the Sandoval County district court
lacked jurisdiction under New Mexico law, that claim rests on state law rather than
federal law. In particular, Petitioner argues the state was required to charge him through
an information, rather than an indictment, under New Mexico procedural rules. (Doc. 21
at 4). However, review under § 2254 is limited to errors related to federal law. §
2254(d)(1) (stating a writ of habeas corpus may not be issued unless a state court
decision unless it was “contrary to, or involved an unreasonable application of, clearly
established federal law”); see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding “it
is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions”). Accordingly, the Court may not consider this argument.
Second, to the extent Petitioner argues that the delay he suffered, by itself,
constituted a violation of his right to a speedy trial, Petitioner’s argument conflicts with
Supreme Court precedent. In Barker, the Supreme Court clarified that none of the four
factors by themselves were enough to find denial of the right to a speedy trial. Barker,
407 U.S. at 533 (“We regard none of the four factors identified above as either a
necessary or sufficient condition to the finding of a deprivation of the right of speedy
trial.”). Courts must still weigh and balance the other factors. Id. (“In sum, these factors
have no talismanic qualities; courts must still engage in a difficult and sensitive
balancing process.”). This means that even if Petitioner suffered extreme delay, that
would not necessarily mean Petitioner’s speedy trial rights were violated. Doggett v.
United States, 505 U.S. 647, 655-56 (1992) (stating “presumptive prejudice” caused by

16

delay “cannot alone carry a Sixth Amendment claim without regard to the other Barker
criteria.”).
3. Whether the Indictment Should Have Been Quashed
Liberally construed,1 Petitioner argues that the state courts’ refusal to quash the
Sandoval County indictment violated his due process rights. As part of Petitioner’s
indictment, the grand jury heard Petitioner’s pre-Miranda confession, which would have
been inadmissible at trial. Petitioner sought to dismiss the indictment on these grounds,
but the district court declined and instead suppressed the confession at trial; the court of
appeals affirmed. Fierro, 2014-NMCA-004, ¶¶ 33-34. These decisions accord with
Supreme Court precedent, which states that an indictment that is valid on its face
should not be dismissed, even if it obtained using that information that violates a
defendant’s right against self-incrimination. See, e.g., United States v. Calandra, 414
U.S. 338, 345 (1974) (stating a valid indictment is not subject to challenge on the
grounds it was obtained using information obtained in violation of a defendant’s Fifth
Amendment right against self-incrimination); Holt v. United States, 218 U.S. 245, 247-48
(1910) (holding same). The state courts’ decisions are therefore not contrary to or an
unreasonable application of federal law, and Petitioner is not entitled to relief under this
theory.
4. Sufficiency of the Evidence
Finally, Petitioner challenges the sufficiency of the evidence supporting his
conviction. The United States Constitution guarantees that a person may only be
convicted of a crime if there is sufficient proof to support the conviction. Jackson v.

1

Because Plaintiff appears pro se, the Court must liberally construe his pleadings, though the Court may
not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

17

Virginia, 443 U.S. 307, 316 (1979). Sufficient proof is the evidence necessary to
convince any rational trier of fact beyond a reasonable doubt of the existence of every
element of the offense. Williams v. Illinois, 567 U.S. 50, 76 n.8 (2012) (citing Jackson,
443 U.S. at 316). In other words, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319 (emphasis in original).
The NMCOA accurately identified and applied these standards. Fierro, 2014NMCA-004, ¶¶ 35-40. Although Petitioner disputes that the evidence was enough to
convict him, he does not argue that the state courts’ decisions were the result of an
unreasonable application of federal law. Petitioner insists that the victim was not a
reliable witness, (Doc. 21 at 5), but, on appeal, courts must view the evidence in the
light most favorable to upholding the verdict. Jackson, 443 U.S. at 319.
Further, Petitioner has not provided clear and convincing evidence that the state
court’s decision was incorrect, or that its determination of facts was unreasonable, as
required by § 2254. In particular, the DNA analyst testified there was a 99.99% chance
Petitioner fathered the victim’s child. Fierro, 2014-NMCA-004, ¶ 38. So, even assuming
the victim was not a credible witness, there was still convincing evidence to support the
conclusion that Petitioner committed CSP. Given this evidence, it was not unreasonable
for the state courts to find Petitioner committed CSP and affirm Petitioner’s convictions.
E. Petitioner’s Assorted Motions
In addition to the Motion, Petitioner has filed numerous other motions asking for
assorted relief. First, in his Motion for Interlocutory Appeal for Motion for Enlargement of

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Time and For Denial of Motion to Compel Brief in Chief or Opinion for Writ of Certiorari,
(Doc. 6), Petitioner protests the New Mexico Supreme Court’s denial of his petition for a
writ of certiorari without an opinion. (Doc. 6 at 1-2). Petitioner asks that the Court
compel the New Mexico Supreme Court to explain why they denied his petition. Id. at 3.
The Court lacks authority to grant Petitioner’s requested relief, therefore this motion
should be denied.
Second, in his Motion of Objection to Time Extension and Motion for Default
Judgement, (Doc. 10), Petitioner objects to Respondents’ request for an extension of
time to answer the Motion and moves for default judgment. (Doc. 10 at 2). Because the
Court granted the extension of time, (Doc. 9), and Respondents have answered the
Petition, (Doc. 19), this motion should also be denied.
Third, in the Motion Requesting Appointment of Counsel and Motion for Stay of
Proceedings, and Motion to Show Cause for Requested Relief, (Doc. 11), Petitioner
asks for appointment of counsel, a stay of proceedings for his attorney to review the
Motion, and to allow appointed counsel to amend the Motion. (Doc. 11 at 3). Petitioner
has ably filed and argued the Motion and has not established good cause for an openended stay to add claims to the Motion, therefore this motion should be denied.
Finally, in the Motion to Show Cause, (Doc. 15), Petitioner asks the Court to take
judicial notice of the issue of Petitioner’s denial of his right to a speedy trial, and in
Petitioner’s Motion to Amend Petitioner’s Writ of Habeas Corpus, (Doc. 16), he moves
to amend the Motion to add a claim of denial of his right to a speedy trial. Because
Petitioner raised his speedy trial claim in the Motion, and these motions do not add to or
clarify his arguments, they should both be denied.

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III.

Conclusion
For the foregoing reasons, the Court finds that Petitioner has failed to establish

that the state courts’ decisions are contrary to or an unreasonable application of federal
law or that they result in an unreasonable factual determination. Additionally,
Petitioner’s various motions should be denied. The Court therefore recommends that
Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody, (Doc. 1), Motion for Interlocutory Appeal for Motion for Enlargement of
Time and For Denial of Motion to Compel Brief and Chief or Opinion for Writ of
Certiorari, (Doc. 6), Motion of Objection to Time Extension and Motion for Default
Judgment, (Doc. 10), Motion Requesting Appointment of Counsel and Motion for a Stay
of Proceedings, and Motion to Show Cause for Requested Relief, (Doc. 11), Motion to
Show Cause, (Doc. 15), Motion to Amend Petitioner’s Writ of Habeas Corpus, (Doc.
16), all be DENIED. The Court also recommends a Certificate of Appealability be
DENIED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have appellate review of the
proposed findings and recommended disposition. If no objections are filed, no
appellate review will be allowed.

THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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