ERIC R. FIERRO, Petitioner - Appellant,
R.C. SMITH, Warden; HECTOR H. BALDERAS, Attorney General for the State of New Mexico, Respondents - Appellees.
No. 2:17-CV-00738-JCH-KBM) (D. New Mexico)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
MICHAEL R. MURPHY, CIRCUIT JUDGE
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.
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.
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 Fierro's
petition because the claims raised therein either (1) failed
on the merits upon de novo review; (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. 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.
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." 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.
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 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
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.
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 ...