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, 

, 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, 

 (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, 

, 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, 

, 1156 (10th Cir.
2009).
      2
       See Herrera v. Collins, 

, 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, 

,

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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