Fierro v. Smith, et al.

Filing 31

MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by District Judge Kenneth J. Gonzales denying 10 Motion of Objection to Time Extension and Motion for Default Judgment; denying 11 Motion Requesting Appointment o f Counsel and Motion for a Stay of Proceedings, and Motion to Show Cause for Requested Relief; denying 15 Motion to Show Cause; denying 16 Motion to Amend Petitioner's Writ of Habeas Corpus; denying 27 Motion for Abeyance, Extension and Remand Back to the District Court's of Both Bernalillo and Sandoval County's to Amend and Exhaust All State Remedy's; and denying 29 Pro Se Motion Pursuant to Federal Rules of Civil Procedure 60(b) at 1. (tah)

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.
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Chief United States Magistrate Judge Carmen E.
Garza’s Proposed Findings and Recommended Disposition (the “PFRD”), (Doc. 24), filed
December 18, 2017; Petitioner Eric Fierro’s Motion for Abeyance, Extension and Remand Back
to the District Court’s of Both Bernalillo and Sandoval County’s to Amend and Exhaust All State
Remedy’s (the “Motion to Stay”), (Doc. 27), and Pro Se Motion of Objection’s to Magistrate
Court Ruleing (sic), with Declaration’s and Motion in Support of Withdrawal and or Removal of
Any and All Prior Petition’s Motion’s or Document’s Now Priorly (sic) Submitted to the U.S.
District Court of New Mexico (the “Objections”), (Doc. 28), both filed January 2, 2018;
Petitioner’s Pro Se Motion Pursuant to Federal Rules of Civil Procedure 60(b) at 1 (the “Rule
60(b) Motion”), (Doc. 29), filed January 5, 2018; and Respondents’ Response in Opposition to
Pro Se Petitioner Eric Fierro’s Motion for Abeyance, Extension, & Remand Back to the District
Court’s of Both Bernalillo & Sandoval County’s to Amend & Exhaust All State Remedy’s [sic]
[Doc. 27] (the “Response”), (Doc. 30), filed January 16, 2018.
In the PFRD, the Chief Magistrate Judge recommended denying Petitioner’s Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the

“Petition”), (Doc. 1), because Petitioner is not entitled to relief under § 2254. (Doc. 24 at 20).
The parties were notified that objections to the PFRD were due within fourteen days. Id.
Petitioner timely objected to the PFRD and filed the accompanying Motion to Stay, and
Respondent timely responded to the Motion to Stay. See Rule 12 of the Rules Governing
Section 2254 Proceedings in the United States District Courts; Fed. R. Civ. P. 72(B)(2).
Following de novo review of the PFRD, Objections, Motion to Stay, Rule 60(b) Motion, and
Response, the Court will overrule Petitioner’s Objections, deny the Motion to Stay and Rule
60(b) Motion, adopt the PFRD, and dismiss the Petition with prejudice.
I.

Background
This case arises from Petitioner’s trial and conviction for criminal sexual penetration

(“CSP”) in the second degree in Sandoval County, New Mexico, and related charges in
Bernalillo County, New Mexico. On July 8, 2004, Petitioner was indicted for several counts of
CSP in the Second Judicial District of New Mexico in Bernalillo County. Nearly three years
later, on June 7, 2007, Petitioner moved to dismiss one of the counts for improper venue, arguing
the count allegedly occurred in adjacent Sandoval County. The prosecution agreed and
dismissed the count without prejudice.
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 because they were identical to the ones remaining in Bernalillo County, leaving the
one previously dismissed 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).

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Petitioner appealed both judgments. See 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). Pertinent to the Petition, Petitioner challenged his
Sandoval County conviction arguing that: (1) he was denied his right to a speedy trial; (2) the
pretrial delay denied him due process; (3) the district court lacked jurisdiction over him; (4) the
Sandoval County indictment should have been quashed; and (5) insufficient evidence supported
his conviction. Fierro, 2014-NMCA-004, ¶ 1. The New Mexico Court of Appeals 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).
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). This time, Petitioner argued that: (1) his
conviction in Sandoval County constituted double jeopardy; (2) he was denied effective
assistance of counsel; and (3) he was denied a fair trial due to prosecutorial misconduct. Id. at
47-48; 53-66. The state district court dismissed the petition without a hearing 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 then timely filed his Petition pursuant to § 2254 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: (1) he was denied his right to a speedy trial; (2) the district court
lacked jurisdiction over him; (3) his indictment should have been quashed; and (4) his conviction
was not supported by sufficient evidence. (Doc. 1 at 5-10, 18-31). Petitioner asserts that he

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exhausted these claims in state court, either through direct appeal or through his state habeas
corpus petition. (Doc. 1 at 6-12).
In the PFRD, the Chief Magistrate Judge first found that Petitioner had not exhausted all
the claims in his Petition. Exhaustion under § 2254 requires that every claim and every argument
supporting that claim be presented to a state court. Smallwood v. Gibson, 191 F.3d 1257, 1267
(10th Cir. 1999). Although Petitioner claimed that the Sandoval County district court lacked
jurisdiction over him on appeal and in the Petition, Petitioner changed his argument from a
procedural state-law argument to a substantive federal-law argument, making that claim
unexhausted. (Doc. 24 at 13). Nonetheless, Respondents urged the Court to evaluate the merits
of Petitioner’s claims. The Chief Magistrate Judge did so and recommended denying the
Petition entirely, along with the miscellaneous motions Petitioner filed. Id. at 14-20.
Petitioner responded by filing the Objections and the Motion to Stay. Liberally
construed,1 both ask the Court to allow plaintiff to withdraw his Petition without prejudice or
stay this case until Petitioner exhausts his unexhausted claim. (Doc. 28 at 1; Doc. 27 at 1-3).
Petitioner also states he plans to file seventeen other claims of constitutional rights violations.
(Doc. 28 at 12-13, 17-41). These claims consist of various case citations and statements that
Petitioner’s rights were violated. For instance, Petitioner claims his right to effective assistance
of counsel was violated because of budgetary crises the New Mexico Public Defender’s Office
faced. (Doc. 28 at 34-41). Finally, Petitioner asks for appointment of counsel to develop these
claims. Id. at 3.
Petitioner’s only objections to the PFRD are to the Chief Magistrate Judge’s analysis of
Petitioner’s speedy trial claim and his claim that his indictment should have been quashed. First,
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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).
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Petitioner asserts that any pretrial delay was not his fault. (Doc. 28 at 7-8). Second, Petitioner
argues that because previously suppressed evidence was used to indict him, the indictment
should have been quashed or a mistrial should have been declared. Id. at 9-11.
Respondents did not respond to Petitioner’s Objections, but they did respond to the
Motion to Stay. Respondents recognize the Court has the authority to equitably toll the Petition,
but they argue Petitioner is not entitled to equitable tolling. (Doc. 30 at 2). Respondents also
oppose Petitioner’s request for counsel. Id. at 2-3.
Finally, Petitioner filed a Rule 60(b) Motion, asking for relief from judgment for
“excusable neglect.” See Fed. R. Civ. P. 60(b)(1) (providing party may obtain relief from final
judgment for “mistake, inadvertence, surprise, or excusable neglect”). Petitioner asserts
excusable neglect for “filing violations” in this case and accuses Respondents, namely Warden
R. C. Smith, of violating his right to access the court. (Doc. 29 at 1). Specifically, Petitioner
states his right to access the court is being violated because he has a learning disability that
Respondents are not accommodating. Id. at 3-4. Petitioner also states his right to the courts is
being infringed because the only time he can perform legal research is the same time he is
allowed to go outside and practice his religion. Id. at 5-6.
Most of the Rule 60(b) Motion describes actions related to a different case, Granado v.
LNU, 16-cv-859-KG-SCY. Petitioner alleges that Respondents retaliated against another
prisoner, Augustin Granado, preventing him and his proposed co-plaintiffs, including Petitioner,
from prosecuting their case against Respondents. Id. at 6-7. Petitioner states that Mr. Granado’s
case was dismissed because of his failure to meet Court-imposed deadlines, which was caused by
Respondents’ interference, and he fears Respondents will do the same here. Id.

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II.

Analysis
a. Law Regarding Objections
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the United

States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a pretrial dispositive
motion to a magistrate judge for proposed findings of fact and recommendations for disposition.
Within fourteen days of being served, a party may file objections to this recommendation. Rule
8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A
party may respond to another party’s objections within fourteen days of being served with a
copy; the rule does not provide for a reply. FED. R. CIV. P. 72(b).2
When resolving objections to a magistrate judge’s recommendation, the district judge
must make a de novo determination regarding any part of the recommendation to which a party
has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that address the primary
issues in the case “advances the interests that underlie the Magistrate’s Act, including judicial
efficiency.” United States v. One Parcel of Real Prop., With Bldgs., Appurtenances,
Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir. 1996). Objections must be timely and
specific to preserve an issue for de novo review by the district court or for appellate review. Id.
at 1060. Additionally, issues “raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996);
see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit,
theories raised for the first time in objections to the magistrate judge’s report are deemed
waived.”).

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The Federal Rules of Civil Procedure may be applied to the extent that they are not inconsistent
with any statutory provisions or the Rules Governing Section 2255 Proceedings. Rule 12 of the
Rules Governing Section 2255 Proceedings for the United States District Courts.
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In this case, Petitioner reiterated two of his arguments in the Petition as objections to the
PFRD. First, Petitioner argues he was denied a speedy trial, stating no pretrial delay was
attributable to him, and that any pretrial delay was the state’s fault. (Doc. 28 at 7-8); see (Doc. 1
at 5). Second, Petitioner asserts the Sandoval County indictment should have been quashed, or a
mistrial declared, because the grand jury that indicted Petitioner heard inadmissible evidence.
(Doc. 28 at 9-11); see (Doc. 1 at 10).
1. Speedy Trial Claim
As discussed, more than six years passed between Petitioner’s original indictment in
Bernalillo County and his conviction in Sandoval County. Petitioner was indicted in July 2004;
he moved to dismiss the Sandoval County charge in June 2007; he was indicted in Sandoval
County in December 2008; and he was convicted in December 2010. Petitioner appealed his
conviction, arguing in part that he was denied his right to a speedy trial. (Doc. 19-2 at 98 to Doc.
19-3 at 93).
On appeal, the New Mexico Court of Appeals identified the four-prong test in Barker v.
Wingo, 407 U.S. 514 (1972), as the standard for whether a speedy trial violation has occurred.
State v. Fierro, 2014-NMCA-004, ¶ 6, 315 P.3d 319. The four prongs are: (1) the length of the
delay; (2) the reason for the delay; (3) whether the defendant asserted the right; and (4) the
prejudice to the defendant. Id. Before analyzing the four prongs, though, the court considered
whether the delay Petitioner suffered was presumptively prejudicial. Id. The court concluded
that, whether measuring from when Petitioner was originally arrested or when he was indicted in
Sandoval County, the delay was presumptively prejudicial. Id., ¶ 7.
The court next evaluated the four factors. In pertinent part, the court determined that
Petitioner was the reason for most of the pretrial delay. Id., ¶ 17. Between February and

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December 2009, Petitioner filed thirteen motions pro se, despite the fact he was represented by
counsel. Id. Petitioner filed more than a dozen motions after that period as well. Id. Although
the state moved for extensions of time prior to trial, two of the extensions were requested to
respond to Petitioner’s motions. Id. The court therefore concluded that Petitioner was largely
the reason for the delay and that this factor did not weigh in his favor. Id. Petitioner argued that
the delay was attributable to the state since the majority of the delay occurred while he awaited
trial in Bernalillo County. Id., ¶ 15. However, because the state did not act in bad faith in
dismissing and refiling the Sandoval County charge, the court measured the delay from when
Petitioner was indicted in Sandoval County, and delay related to the Bernalillo County case was
irrelevant. Id., ¶ 16.
On review, the Magistrate Judge recounted this analysis and found that it was not
contrary to or an unreasonable application of clearly established federal law. (Doc. 24 at 14-15).
The Magistrate Judge also found that the New Mexico Court of Appeals’ decision was consistent
with Barker and cases interpreting Barker. Id. at 15. The PFRD therefore found Petitioner is not
entitled to relief under § 2254(d)(1) on this claim.
Petitioner now objects to the PFRD, stating he did not cause the pretrial delay he
suffered. Liberally construed, Petitioner denies that his pro se motions in the district court
delayed his case. (Doc. 28 at 7) (“So again and for posterity of the record where are these delays
present, due to me exercising my 6th amendment right to self-defense.”). Petitioner also claims
that his motions were necessary because he was “virtually left” without defense counsel. Id.
Having reviewed the objections, the PFRD, and the underlying record, the Court finds no
error in the Magistrate Judge’s analysis. Under § 2254, the question is whether the state courts’
decisions were contrary to or an unreasonable application of federal law. § 2254(d)(1). The

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New Mexico Court of Appeals identified Barker as the appropriate federal law, and it was not
contrary to or an unreasonable application of Barker to consider Petitioner’s filings against him.
In Barker, the Supreme Court stated a defendant may waive their right to a speedy trial if delays
are attributable to him. See Barker, 407 U.S. 514, 528 (“We hardly need add that if delay is
attributable to the defendant, then his waiver may be given effect under standard waiver doctrine,
the demand rule aside.”). Thus, it was not contrary to or an unreasonable application of federal
law to attribute pretrial delay to Petitioner and hold that his right to a speedy trial was not
violated.
Petitioner reasons that he was forced to file pretrial motions because his counsel was
deficient and his rights were allegedly being violated. (Doc. 28 at 7-8). Thus, any delay caused
by those motions was really the state’s fault, since they were violating his constitutional rights.
To be clear, the Court does not intend to punish Petitioner for defending his constitutional rights.
However, it was not unreasonable for the New Mexico Court of Appeals to find it was
inconsistent for Petitioner to file approximately 25 pretrial motions for the district court to rule
on, including motions to dismiss and for summary judgment, and also complain that the state did
not try him quickly enough. Accordingly, the Court finds that Petitioner is not entitled to relief
under § 2254 for his claim that he was denied his right to a speedy trial.
2. Whether the Indictment Should Have Been Quashed
Petitioner’s second objection relates to his claim that the Sandoval County indictment
should have been quashed because the grand jury proceedings were tainted with inadmissible
evidence. (Doc. 1 at 8). During a custodial detention, Petitioner confessed prior to being read his
Miranda rights. Id.; see Fierro, 2014-NMCA-004, ¶ 33. Although the Bernalillo County district
court suppressed the confession at trial, the state presented the confession to the Sandoval

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County grand jury. Id. The Sandoval County district court also suppressed the confession at
trial. Fierro, 2014-NMCA-004, ¶ 34. Still, Petitioner claims the indictment and conviction are
“fruit of the poisonous tree,” and that the indictment should have been quashed or a mistrial
declared. (Doc. 28 at 5, 9-11).
Petitioner also raised this claim on direct appeal. The New Mexico Court of Appeals
held that when inadmissible evidence is presented to a grand jury, the appropriate remedy is
suppression of the evidence at trial. Fierro, 2014-NMCA-004, ¶ 33 (citing State v. Elder, 1985NMCA-076, ¶ 9, 103 N.M. 211, 704 P.2d 465). Because the district court suppressed
Petitioner’s confession at trial, quashing the indictment was unnecessary. Id., ¶ 34. As
explained in the PFRD, this decision accords with Supreme Court precedent stating an
indictment should not be quashed if it is obtained with inadmissible evidence. See United States
v. Calandra, 414 U.S. 338, 334-45 (1974) (“Thus, an indictment valid on its face is not subject to
challenge on the ground that the grand jury acted . . . on the basis of information obtained in
violation of a defendant’s Fifth Amendment privilege against self-incrimination”); United States
v. Blue, 384 U.S. 251, 255 (1966) (“Our numerous precedents ordering the exclusion of such
illegally obtained evidence assume implicitly that the remedy does not extend to barring the
prosecution altogether.”).
Here again, the Court finds no error in the PFRD or the underlying state decisions. The
PFRD rightfully concluded that the New Mexico courts’ decisions align with Supreme Court
precedent on this issue, and are therefore not contrary to or an unreasonable application of
federal law under § 2254(d).
b. Whether to Stay the Petition and Hold it in Abeyance or Allow Petitioner to
Withdraw the Petition without Prejudice

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In addition to objecting to the PFRD, Petitioner requests the Court either stay the Petition
and hold it in abeyance or allow Petitioner to withdraw the Petition without prejudice so
Petitioner can return to state court and exhaust his one unexhausted claim, as well as bring
several new claims. (Doc. 28 at 1, 4, 12-13). As discussed, § 2254 requires complete exhaustion
of all claims. Rhines, 544 U.S. at 273-75. This includes each argument made to support a claim.
Wilson, 577 F.3d at 1294. The Chief Magistrate Judge found the Petition contained an
unexhausted claim because Petitioner presented a different argument in the Petition than he made
in state court. (Doc. 24 at 13-14). If a petition contains exhausted and unexhausted claims, it 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, 579 F.3d at 1156.
Courts may stay a petition and hold it in abeyance only if the petitioner “had good cause
for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no
indication petitioner engaged in intentionally dilatory tactics.” Rhines, 544 U.S. at 278.
However, “stay and abeyance should be available only in limited circumstances.” Id. at 277.
“Good cause” for failure to exhaust includes confusion about whether a state petition would be
timely, ineffective assistance of post-conviction counsel, or “any external objective factor that
cannot fairly be attributable” to petitioner. Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014)
(quotation omitted). The Tenth Circuit has held that a petitioner does not establish good cause
by “merely list[ing] the new claims he wants to bring, without proffering a convincing reason for
a stay or satisfying the other Rhines requirements.” Kincaid v. Bear, 687 Fed. Appx. 676, 679

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(10th Cir. 2017) (unpublished). Finally, a district court abuses its discretion if it grants a stay
when the petitioner’s claims are plainly meritless, even if the petitioner had good cause for
failing to exhaust. Rhines, 544 U.S. at 277-78.
In this case, Petitioner’s unexhausted claim is that the delay he suffered between the
Bernalillo County indictment and Sandoval County indictment deprived the Sandoval County
court of jurisdiction and denied Petitioner due process. (Doc. 1 at 7). The Chief Magistrate
Judge considered this claim in the PFRD and found it meritless, and Petitioner did not object to
that analysis. (Doc. 24 at 15-17). Thus, Petitioner’s unexhausted claim is not potentially
meritorious, and the Court would abuse its discretion by granting a stay to exhaust this claim.
Regarding Petitioner’s potential new claims, Petitioner lists seventeen constitutional
claims he wishes to bring in state court. (Doc. 28 at 12-13). Petitioner lists these claims and
provides case and rule citations in support of them. Id. at 17-33. Petitioner states he has recently
discovered these claims by reviewing the record. Id. at 38. (“The Plaintiff in reviewing records
has now discovered all of this.”).
Although Petitioner states his new claims are based on his recent review of the record,
Petitioner does not give a reason why these claims were unavailable to him before. See Carter v.
Mitchell, 829 F.3d 455 (6th Cir. 2016) (denying stay where a § 2254 petitioner raised new claims
based on information he discovered in record). Here, as in Kincaid, Petitioner has listed the
claims he wishes to bring, but he has not given “a convincing reason for a stay or satisf[ied] the
other Rhines requirements.” Kincaid v. Bear, 687 Fed. Appx. 676, 679 (10th Cir. 2017)
(unpublished). Accordingly, the Court finds Petitioner has not established good cause to allow
him to stay or withdraw the Petition.

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Finally, Petitioner has waived the issues by raising them for the first time in his
Objections to the PFRD. Marshall, 75 F.3d at 1426; Garfinkle, 261 F.3d at 1031. Petitioner had
an opportunity to further review the record and request a stay or withdrawal after Respondents
filed their Response, which attached the record and argued the Petition was mixed. Instead,
Petitioner argued the merits of the Petition and has requested a stay only after the Chief
Magistrate Judge recommended denying the Petition. By waiting until after the PFRD was filed,
Petitioner has waived his new arguments. Garfinkle, 261 F.3d at 1031 (“In this circuit, theories
raised for the first time in objections to the magistrate judge’s report are deemed waived.”). For
the foregoing reasons, the Court will deny Petitioner’s request to either stay the Petition or allow
him to withdraw the Petition without prejudice.
c. The Rule 60(b) Motion
Finally, Petitioner filed a motion requesting relief from a final judgment or order for
“excusable neglect” under Fed. R. Civ. P. 60(b)(1). (Doc. 29). Petitioner claims he is being
denied access to the court because Respondents: have not accommodated his learning disability;
only allow Petitioner to perform legal research at the same time he is allowed to practice his
religion; and demand payment prior to rendering services like copying, notarization, and phone
calls. Id. at 1-6. Petitioner alleges Respondents’ interference caused him and his co-plaintiffs to
miss filing deadlines in another case, Granado v. LNU, 16-cv-859-KG-SCY, that Granado was
dismissed because they missed deadlines, and that he fears this case will also be dismissed due to
Respondents’ denial of his right to access the court. Id. at 7.
Rule 60(b)(1) allows the court to “relieve a party . . . from a final judgment, order, or
proceeding” for “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1).
The Court has not taken adverse action against Petitioner because of missed deadlines, nor has

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the Court entered a final judgment or order, so Rule 60 is inapplicable here. To the extent
Petitioner requests relief for excusable neglect in Granado, the Court cannot grant relief in this
case. Finally, to the extent Petitioner wishes to add any new claims to his Petition, they are not
appropriate under § 2254. The Court may grant the Petition “only on the ground that [Petitioner]
is in custody in violation of the Constitution or laws or treaties of the United States.” § 2254(a).
Petitioner’s claims relate to the conditions of confinement and alleged violations of his
constitutional rights while he is in custody, but they do not pertain to whether Petitioner is in
custody in violation of federal law. Accordingly, the Court will deny Petitioner’s Rule 60(b)
Motion.
III.

Conclusion
For the foregoing reasons, the Court finds that the Chief Magistrate Judge conducted a

proper analysis and correctly concluded that the state court decisions at issue in this case were
not contrary to or unreasonable applications of clearly established federal law, or that they
resulted in an unreasonable determination of facts in light of the evidence presented.
Additionally, Petitioner is not entitled to relief under any of his various motions.
IT IS THEREFORE ORDERED that Petitioner’s Pro Se Motion of Objection’s to
Magistrate Court Ruleing, with Declaration’s and Motion in Support of Withdrawl and or
Removal of Any and All Prior Petition’s Motion’s or Document’s now Priorly Submitted to the
U.S. District Court of New Mexico (Doc. 28), are OVERRULED; Chief United States Magistrate
Judge Carmen E. Garza’s Proposed Findings and Recommended Disposition, (Doc. 24), are
ADOPTED; and 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,

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(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); Motion for Abeyance, Extension and
Remand Back to the District Court’s of Both Bernalillo and Sandoval County’s to Amend and
Exhaust All State Remedy’s, (Doc. 27); and Pro Se Motion Pursuant to Federal Rules of Civil
Procedure 60(b) at 1, (Doc. 29); are DENIED and this case shall be DISMISSED WITH
PREJUDICE.

UNITED STATES DISTRICT JUDGE

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