Fierro v. Balderas ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 1, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ERIC R. FIERRO,
Petitioner - Appellant,
v. No. 18-2127
(D.C. No. 2:17-CV-00738-JCH-KBM)
R.C. SMITH, Warden; HECTOR H. (D. New Mexico)
BALDERAS, Attorney General for the
State of New Mexico,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
This matter is before the court on Eric Fierro’s pro se request for a
certificate of appealability (“COA”). Fierro seeks a COA so he can appeal the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See
28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a “final order
in a habeas corpus proceeding in which the detention complained of arises out of
process issued by a State court” without first obtaining a COA). Because Fierro
has not “made a substantial showing of the denial of a constitutional right,” id.
§ 2253(c)(2), this court denies his request for a COA and dismisses this appeal.
Following a jury trial in New Mexico state court, Fierro was convicted of
twenty-nine counts relating to his on-going sexual abuse of his stepdaughter. See
State v. Fierro, 278 P.3d 541, 542-43 (N.M. Ct. App. 2012) (“Defendant Eric
Fierro appeals his convictions for eight counts of first degree criminal sexual
penetration (CSP), sixteen counts of second degree CSP, four counts of third
degree criminal sexual contact (CSC), and two counts of bribery of a witness, all
connected to his actions in sexually abusing his step-daughter . . . over a period of
twelve years.”). The New Mexico Court of Appeals affirmed Fierro’s convictions
on direct appeal. See id. at 553.
After the state courts denied his request for post-conviction relief, Fierro
filed the instant § 2254 habeas petition raising the following 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) the withholding by the prosecution of
favorable evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5)
double jeopardy; (6) constitutionally ineffective assistance of counsel; and (7)
witness intimidation. The district court referred the matter to a magistrate judge
for initial proceedings. 28 U.S.C. § 636(b)(1)(B). In a thorough Report and
Recommendation, the magistrate judge recommended that the district court deny
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Fierro’s petition because the claims raised therein either (1) failed on the merits
upon de novo review 1; (2) failed because the state courts’ resolution of the claim
was neither contrary to, nor an unreasonable application of, clearly established
Supreme Court precedent, 28 U.S.C. § 2254(d); and/or (3) failed to state a
constitutional violation implicating the right of habeas corpus. 2 Upon de novo
review, 28 U.S.C. § 636(b)(1), the district court adopted the Report and
Recommendation and denied Fierro’s habeas petition.
Fierro seeks a COA so he can appeal the district court’s denial of his
habeas petition. The granting of a COA is a jurisdictional prerequisite to an
appeal from the dismissal of a § 2254 petition. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). To be entitled to a COA, Fierro must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is,
he must demonstrate “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”
1
The majority of the claims set out in Fierro’s petition were properly
exhausted in state court. The district court resolved the unexhausted claims on
the merits because the record made clear those claims lacked merit. See
28 U.S.C. § 2254(b)(2); Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir.
2009).
2
See Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual
innocence . . . have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the underlying state
criminal proceeding.”).
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Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether Fierro has
satisfied his burden, this court undertakes “a preliminary, though not definitive,
consideration of the [legal] framework” applicable to each of his claims. Id. at
338. Although Fierro need not demonstrate his appeal will succeed to be entitled
to a COA, he must “prove something more than the absence of frivolity or the
existence of mere good faith.” Id.
Having undertaken a review of Fierro’s appellate filings, the magistrate
judge’s Report and Recommendation, the district court’s order, and the entire
record before this court pursuant to the framework set out by the Supreme Court
in Miller-El, we conclude Fierro is not entitled to a COA. The district court’s
denial of Fierro’s § 2254 petition is not reasonably subject to debate and the
issues he seeks to raise on appeal are not adequate to deserve further proceedings.
In so ruling, this court concludes it is unnecessary to restate the careful analysis
set out in the Report and Recommendation. Cf. Buck v. Davis, 137 S. Ct. 759,
773 (2017) (holding that the straightforward process of deciding whether a
petitioner is entitled to a COA should not be treated by the Courts of Appeals as
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tantamount to a merits determination). Accordingly, this court DENIES Fierro’s
request for a COA and DISMISSES this appeal. Fierro’s various motions to
supplement the record with materials not before the district court are DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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