Carlos Fierro petition for new trial

7/29/2019 Carlos Fierro petition for new trial

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FIRST J UDICIAL DISTRICT COURTCOUNTY OF SANTA FESTATE OF NEW MEXICO

No. D-101-CV-2011-03927

STATE OF NEW MEXICO,

Plaintiff,

vs.

CARLOS FIERRO,

Defendant/Petitioner,

vs.

J OSEPH GARCIA, WARDEN,

Respondent.

FIRST AMENDED PETITION FOR HABEAS CORPUS

Defendant Carlos Fierro, through his attorney, Ray Twohig, pursuant to Rule 5-

802, submits this petition for habeas corpus to challenge the constitutionality of his

conviction. The grounds for this petition are

1. Defendant/Petitioner was, at the time of filing of this petition, a minimum

security prisoner at the Central New Mexico Correctional Facility, Los Lunas, New

Mexico by virtue of the conviction entered in this Court in this case, and Respondent

J oseph Garcia is its warden. As a minimum custody prisoner, Defendant/Petitioner was

housed at the Farm. He has since been released on parole, and resides in California.

2. This proceeding is an extension of the criminal prosecution, and is

opposed by the State of New Mexico. The First J udicial District Attorney prosecuted and


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obtained the convictions which are challenged in this proceeding. No prior habeas

corpus proceedings have been filed by or on behalf of Mr. Fierro, and no prior

exhaustion is required. A post judgment motion seeking to amend the judgment was

filed in this proceeding, but was later withdrawn.

3. On November 26, 2008, Mr. Fierro was arrested and charged in a criminal

complaint filed in the Magistrate Court for Santa Fe County with one count of vehicular

homicide and one count of leaving the scene of an accident involving death. On

February 4, 2009, a Criminal Information was filed in this Court containing the same

charges. These offenses arose out of an accident on November 26, 2008 in which a

pedestrian was killed.

4. On October 2, 2009, a jury returned a verdict of guilty of vehicular

homicide, but was unable to reach a verdict on the second charge of leaving the scene

of an accident involving death, resulting in a mistrial on that charge. On November 13,

2009, very shortly before a scheduled hearing on Defendants Motion for New Trial

challenging the Courts mid-deliberation change of jury instructions on the elements of

vehicular homicide, Mr. Fierro pled no contest to leaving the scene of an accident and

agreed not to appeal the vehicular homicide conviction. He was sentenced to nine years

of incarceration, with two years suspended, for a sentence of seven years, which he is

presently serving pursuant to the J udgment, Sentence and Commitment entered on

November 20, 2009. Pursuant to the plea agreement, Defendant was to be credited for

all time served under electronic monitoring and confinement. The J udgment and

sentence ultimately entered did not include all such time.


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6. Mr. Fierro was represented by the firm of Bowles and Crow, and by Robert

Gorence as second chair counsel and, to a more limited extent in a non trial capacity,

by Colin Hunter. Counsel were retained by Mr. Fierros family soon after his arrest, and

continued in the case until after the entry of the J udgment. Mr. Bowles was lead

counsel.

7. Attorneys Bowles and Gorence were, in combination, a highly experienced

federal prosecution team, both having worked extensively in the United States

Attorneys office for the District of New Mexico. Mr. Gorence had been a criminal

defense lawyer for a number of years, and had considerable experience and success in

defending criminal cases, including high visibility and complex criminal cases. Mr.

Bowles had substantially less experience as a criminal defense lawyer with very few

state criminal defenses behind him when retained, and, for that reason, successfully

recommended to Mr. Fierros family that Mr. Gorence be retained as part of the defense

team. Mr. Crow was less experienced, but an able lawyer. As Mr. Bowles partner, he

had a limited role in this case.

8. Mr. Bowles was primarily responsible to coordinate and prepare the

defense of the criminal charges and to take the lead role in trial. Two other lawyers were

to assist in the defense, with responsibilities designated by Mr. Bowles. Mr. Bowles was

ineffective in this role, which limited the effectiveness of the other lawyers. The

deficiencies combined to render constitutionally ineffective assistance of counsel to

Defendant Fierro, and included the following:


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I. MEDIA

9. Mr. Fierro was soundly and repeatedly excoriated in the local media in the

Santa Fe area, where the jury pool would be drawn. The family of the deceased

pedestrian, who are professional political operatives with experience in media relations,

realized that a media campaign would be important and, together with a professional

media and political consultant , worked along with inaccurate leaks from the Santa Fe

Police Department to manipulate public opinion about the accident. They were very

effective in convincing the news media to portray Mr. Fierro in a highly negative and

inflammatory manner, motivated significantly by a presumed relationship to Governor

Richardson and other public figures as well as the identity of his passenger. The

headlines characterized him as a killer, said his case was high profile, said he was

politically influential, that he killed, impaled, struck the pedestrian, and otherwise was

grossly intoxicated and painted him as clearly guilty. They promoted the view that a

double standard of political influence was involved before the facts and evidence were

known in order to deter decision makers in his case from ruling in his favor. Substantial

additional false information was repeated, such as dual citizenship, substantial property

ownership and financial wealth that would influence the process. The media was at its

worst, consistently selecting fragments out of context to characterize Mr. Fierro

negatively and maintaining the story of the case in repeated segments for lengthy

periods while labeling the deceased and his family as nonpolitical and misstating many

known facts. Bloggers compounded the damage from the false labeling with

anonymous commentary used by Santa Fe Police Department and others close to the


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case to justify politicizing and sensationalizing the case in unprecedented ways in this

area.

10. Mr. Fierro urged his attorneys to accept the assistance of people who

were willing to help guide the appropriate response and correct the inaccurate claims in

the aggressive public media campaign being conducted against him. Since causation

was the critical issue in the case, had the media been balanced or at least offset by the

attorneys by readily avialble means, a fairer trial would have been possible. Despite

many requests by Mr. Fierro, his attorneys virtually shut out the media and even

alienated some reporters unnecessarily. Their occasional comments were random and

poorly structured, resulting in little public awareness of the causation issue prior to trial,

a deficiency which continued during the trial. This was a serious shortcoming in this very

high visibility case, and was a mistake which experienced criminal defense attorneys

dont normally make because it is common knowledge among defense lawyers that the

information, true or false, which the prosecution and police place in the public arena, will

have an influence on the jury pool which will be difficult to ferret out during voir dire, and

impossible to eliminate during trial

II. ACCIDENT RECONSTRUCTION

11. The Santa Fe Police Department modified its accident reconstruction in

the case once it became evident that any driver in Mr. Fierros position likely could not

have avoided this accident. Upon learning this, the Santa Fe Police Department

leadership removed officers and experienced investigators and accident

reconstructionists from the case, and replaced them with less experienced officers who

were willing to slant the case to strengthen the prosecution of Defendant Fierro by


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ignoring key physical evidence and witness statements. The substitute police

investigation was virtually indefensible, and the first one was shielded from the defense,

the evidence being suppressed in violation of the rule long ago established in Brady v.

Maryland, 373 U.S. 83 (1963) and later expanded in Kyles v. Whitley, 514 U.S. 419

(1994) and applied in federal habeas corpus to police in New Mexico withholding

evidence in Smith v. Secretary, New Mexico Department of Corrections, 50 F.3d 801

(10th Cir. 1995). Though Mr. Fierro and his family learned some information outside of

the discovery process about this shift, and informed defense counsel, this critical area

was not followed up on nor effectively developed by defense counsel prior to trial, and

not effectively demonstrated at trial. Had this been done, the original investigator could

have easily been called upon to explain his conclusions, his statement could have been

taken prior to trial, and motions could have been filed concerning the issue to compel

full disclosure. In the absence of adequate pretrial preparation by the defense lawyers,

Mr. Fierros uncle located a qualified lighting expert to identify the deficiencies in

lighting, the visual picture a driver in Mr. Fierros position would see and to review the

States analysis and calculations. This whole area, central to the case, did not get

meaningful attention by defense counsel, despite repeated urging by Mr. Fierros family

members and friends. The defense attorneys failed multiple times to meet or speak

with the expert, mark Green, to coordinate his pretrial interview, and failed to pay him

for the work he did despite payment of ample fees by Defendant and his family.

12. Bowles and associates did not interview the States final accident

reconstructionist and probe his conclusions, nor did they interview the original accident

reconstructionist. Their failure to do so prevented them from being fully aware of the


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Santa Fe police manipulation of the evidence, and thus they were ineffective in

exposing it and demonstrating its importance to the central issue in the case. Because

the Defense did not develop this area in any meaningful way, and due to the fact that

the Santa Fe Police reconstruction was so deficient, the State did not call any

reconstructionist to testify at trial, and neither did the defense. Moreover, they failed to

provide sufficient information to their initially retained accident reconstructionist and lost

him because of their inattention. Thereafter, when another accident reconstructionist,

was located by Mr. Fierros family and made available repeatedly to Mr. Bowles and his

cocounsel, they failed to meet with him and consult with him on the case as any

reasonably competent attorney would do, until moments before his testimony. They

were thus unprepared to effectively present his conclusions. Mr. Fierro and his family

met with the witness, but counsel got involved too late in this central aspect of the case.

They made him available for a prosecution interview very late, and ineffectively

presented his testimony at trial due to lack of preparation time with the witness. Finally,

a very important witness, Mark Green, a lighting and visual expert, was not made

available for prosecution interview due to neglect of the defense team, and defense

counsel were forced to abandon him as a witness on a pretext justification, despite his

substantial importance to the causation issue. Major facets of the accident

reconstruction area were omitted from the trial of this case. The State was relieved.

One trial prosecutor was later overheard to say, Thank God they didnt challenge the

investigation. He was rightit was not effectively challenged, and could have been with

very little real preparation, the retention of and full cooperation with a highly qualified

accident reconstructionist shortly after counsel was retained should have been followed


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by development and implementation of a strategy which sought to present the truth, and

which placed the issue at the center of the case through presentation of evidence of

these various components of causation.

A. LIGHTING

13. The accident occurred on a moonless night in an area where several

streetlights were burned out and visibility was limited. A videotape was taken by Mr.

Fierros uncle showing the lighting as it was that night which demonstrated the inability

to view pedestrians in the roadway. This was done only a few days after the accident,

was provided to Bowles & Associates then apparently not turned over to the State, and

reportedly lost by Bowles office. The level of lighting is a key factor in reconstruction of

the accident. Though efforts were made to obtain City of Santa Fe records concerning

the lighting complaints and repairs, etc, that information was not developed because the

defense team started late, and failed to seek information from PNM rather than the City

until several months after they had been made aware of the lighting issue. So, when Mr,

Vick, the sole testifying defense accident reconstructionist, testified as a witness, he

was undermined effectively by the State concerning the lighting, as well as his limited

opinions which had not been discussed with him. His testimony, as a result, was

underdeveloped, focused on the wrong issue, and consequently failed to have an

effective impact on the jury.

B. VEHICLE PATH, ACCIDENT DETAILS AND SPEED

14. This area was inadequately developed through expert analysis. This left

the prosecution to try the case without putting on any expert, and left prosecutors open

to argue speculative theories. A capable defense preparation would have made


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available police reports, witness statements of the prosecution witnesses, blood spatter

evidence, bodily injury reports, medical evidence, and full police reports to an

experienced defense expert reconstructionist. Such an expert would have testified to

key conclusions demonstrating that Mr. Fierros driving was not a cause of the accident,

and would have refuted the SFPD accident reconstruction as without any basis. The

difficulty of seeing the pedestrian in dark clothing under poor lighting on a moonless

night was compounded by his inattentiveness (he was walking backwards and talking

on a cell phone) as well as the awkward path necessary to navigate this area with new

low medians which cant be detected easily at night, and which are struck frequently by

motorists in the area. The lack of early and effective focus on reconstruction in this

causation case led to a poor presentation which engendered misunderstandings by the

jury. Had Defense counsel focused effectively in this area, it is likely that there would

have been no conviction for vehicular homicide.

III. LACK OF INVESTIGATION

15. Bowles, et al. retained former New Mexico State Police officer, now

private investigator, Larry Trujillo as an investigator for the case. Mr. Trujillos

investigations stopped short of what was necessary to fully defend this case. He is a

very capable investigator who did not receive sufficient direction to follow up and

develop defense witnesses. Many leads were reported to Mr. Bowles by various people,

but not followed up through detailed scene and witness investigation. Yet, it was evident

to Mr. Vick that the prosecution investigation was biased, notions were premature,

insufficient and lacked in proof of Mr. Fierros guilt or innocence. The focus of pretrial

investigation and negotiation, as directed by Mr. Bowles, was on assisting federal


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agents and others in developing evidence against then-Governor Richardson and other

democrats. These democrats had no role in this accident, but the defense team

apparently believed that Mr. Fierro could benefit in some fashion by assisting the

Federal Investigation of Governor Richardson, and apparently worked to persuade him

to do so.

IV. LEVEL OF INTOXICATION

16. Mr. Fierro did not dispute that he was drinking, but seriously disputed the

blood alcohol level which was reported, and the related quantity of alcohol he allegedly

consumed. The blood draw was problematic and could have been challenged, but was

not. Portions of a video which was shown repeatedly on television after being released

by police but never was fully reviewed by Bowles & Associates, but were admitted in

part in evidence. The entire video was not shown to the jury by the defense, which

would have demonstrated Mr. Fierros relative sobriety and cast doubt on the level of

intoxication claimed by the State.

V. CHANGE OF VENUE

17. A change of venue from Santa Fe County was sought without sufficient

evidence being developed or produced in order to obtain one. Moreover, the attorneys

sought a change to Rio Arriba County, where publicity was virtually the same as in

Santa Fe County.

VI. WITNESSES AND TRIAL PREPARATION

18. The State listed close to eighty (80) witnesses and few were researched

or looked into sufficiently to enable effective cross-examination. The defense attorneys

did not press for a meaningful witness list in order to enable adequate preparation. A


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great deal of the cross examination was done without any preparation, or based on

limited preparation at the last minute, or while in trial. This meant that defense

testimony could not be effectively developed and that the defense case was

exceedingly weak because the weaknesses in the prosecution case had not been

effectively exploited. Defense counsel failed to investigate witnesses whom defendant

and his family advised them had exculpatory information. Had they done so, and

exploited that evidence, they would have been able to effectively demonstrate the

cover-up within the police department, the withholding of evidence, and the cause of the

accident.

19. Mr. Fierro could not locate nor afford other attorneys and when the

relationship between him and Bowles became so strained due to surprisingly poor

communication and preparation, and his repeated demands for more funds without any

accounting of funds which had been paid, that Bowles resigned as counsel and stopped

preparing. Nonetheless, he did not move to withdraw, but instead ultimately tried the

case despite many efforts by Mr. Fierro and his family to change counsel. In particular,

Mr. Fierro requested that co-counsel, Robert Gorence, take the lead role. Because of

his friendship with Mr. Bowles and also because he was retained in the more limited

capacity as second chair, and was unprepared to try the case in that role, Mr. Gorence

declined to do so.

VII. THE TRIAL, INCLUDING PROSECUTORIAL MISCONDUCT

20. The trial was an unmitigated disaster because of the lack of preparation

and a seriously deteriorated and dysfunctional relationship between Bowles and Fierro.

Mr. Bowles expected the continuance he sought prior to trial to be granted and, when it


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was denied, he simply was not prepared to try the case when it began. Mr. Fierro did

not know he would testify until the jury was so advised during voir dire. There had been

no final discussion with him concerning whether or not he should testify. The right to

testify or not belongs exclusively to the client, not to the attorney, yet in this case, the

attorneys made the decision without consulting with Mr. Fierro because of the strained

relationship between them, the inadequate preparation time and the urgency which

resulted from denial of the continuance motion. Surprisingly, although there was a full

weekend between the testimony of the previous witness and Mr. Fierros testimony,

there was virtually no time spent preparing him for that very important part of the trial.

Incredibly, despite the very substantial array of possible defense witnesses, only two

defense witnesses were called, Mr. Vick and Defendant Carlos Fierro. Most incredibly,

despite his background, not a single character witness was sought nor developed by the

defense, nor offered to support Mr. Fierro. Explanations by Bowles for these failures

were contrived and not genuine, since the lack of preparation was the primary reason.

These were not strategic decisions, but rather further examples of ineffective assistance

of counsel due to lack of trial preparation.

21. Defense counsel were so unfamiliar with the evidence that they failed to

recognize that prosecutors were using damage to the car as an argument to

demonstrate high speed, even though that damage was known to have been caused

during towing when the car was dropped.

22. Defense counsel refused to subpoena tapes from the jail and hospital

which would have shown that officers were not present during the blood draw, as

claimed.


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23. Defense counsel failed to investigate the possibility of or retain

toxicologists who, based on the amount Mr. Fierro ate and drank that night, could have

testified that his blood alcohol level was below the legal limit.

24. Defense counsel failed to retain a jury consultant, and failed to investigate

jurors, reviewing jury questionnaires only briefly before voir dire began. Had they done

so, they would have discovered that the juror who later became the jury foreman had a

pending criminal charge which he had failed to disclose on his jury questionnaire and

during voir dire, and, had they further investigated, they would have discovered that

jurors former or current girlfriend had a sister who was or had recently been a sister in

law of the States jury consultant. Had they pursued this issue, they would have seen

that the pending criminal charge was known to the State and that they did not excuse

that juror. This would have come to light once the hidden lawyer jury consultant of the

state was known, and the jurors acquaintance/relationship to him was known, and they

then should have moved to strike him from the jury out of concern he would rule against

Mr. Fierro in order to curry favor in his own pending criminal case. Upon information and

belief, after the foreman guided the jury to the guilty verdict, his criminal charge(s) were

dismissed by the same District Attorneys office. The failure of the State to disclose its

hidden jury consultant lawyer and, especially, his relationship with the eventual jury

foreman also constituted prosecutorial misconduct which denied Mr. Fierro due process

and the right to a trial by jury in violation of federal and state constitutions. Once the

hidden jury consultant attorney became known, the States failure to disclose this

relationship to the defense and to make it available to the Court during the inquiry of

already seated jurors magnified the misconduct and constitutional violations.


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25. Mr. Bowles and Mr. Crow proposed jury instructions. The trial court gave

one of the proposed instructions rather than the uniform jury instruction as the elements

instruction on causation, and then, when the jury asked a question four (4) days into the

deliberations, the prosecution objected to that previously given instruction, and the trial

judge changed the instruction to the correct UJ I instruction. This meant that the

causation instruction had an entirely different meaning, which undermined the closing

argument the defense had already given on the basis of the prior instruction to the jury.

The Motion For New Trial raised this issue and sought appropriate relief. The judge had

denied a mistrial during deliberations, but never got an opportunity to consider the

motion for new trial, nor did any appellate court. The trial judge said at the time he

decided to give the changed instruction that this may be the basis for a mistrial, or

basis for a new trial.

VIII. THE PLEA AND AFTERMATH

26. The Motion For New Trial was incomplete and insufficient, failing to raise

jury issues described above, and it was never heard. It was set for hearing on the

morning Mr. Fierro was to be sentenced on the vehicular homicide conviction, according

to his attorneys. The pressure applied by defense counsel on Mr. Fierro to enter the

plea was astronomical and the time constraints indefensible. Mr. Bowles failed to meet

with Mr. Fierro the weekend prior to the hearing despite numerous requests that he do

so. Mr. Fierro had been placed in custody after the jury verdict, and six weeks later was

transported to the courthouse for the motion hearing and apparently also for sentencing,

without any communication with Mr. Bowles about a proposed plea agreement or about

the plan for the sentencing proceeding. No witnesses had been arranged by the


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defense for the sentencing. Unbeknownst to Mr. Fierro, however, Mr. Bowles had earlier

been able to negotiate a plea agreement which, if accepted by Mr. Fierro, would relieve

Mr. Bowles of further responsibility in the case and avoid the necessity for a public

argument as well as an appeal concerning the mid deliberation elements jury instruction

change. This agreement had been provided in draft form to Mr. Bowles based upon

apparently concluded negotiations, but Mr. Fierro was not informed of it nor provided a

copy of it until minutes before the plea had to be entered, according to the attorneys.

Mr. Fierro had seen no presentence report, nor had he been interviewed by the

probation office concerning sentencing, although he was told the sentencing would take

place immediately after the motion hearing that morning. There had already been

adverse editorial comment arising from the jury instruction and Mr. Bowles likely limited

public embarrassment was going to increase if the hearing was held. Moreover, during

the course of efforts to persuade Mr. Fierro to accept the plea agreement which Mr.

Bowles had negotiated, defense counsel made inaccurate and unjustified promises and

assurances concerning the time he would serve in prison and his ability to return to law

practice through reinstatement of his law license. Mr. Fierro, though he was a licensed

attorney, he was not a criminal defense lawyer, and had no knowledge nor experience

which enabled him to realize that these representations were false. He was also

prevented from consulting with family members or attorney friends, because he was

assured by Mr. Bowles and Mr. Gorence that he would receive a very substantial

sentence immediately after the impending hearing on the Motion for New trial, and was

also assured that motion would be denied by the trial judge. The contrived haste with

which the decision was demanded gave him inadequate opportunity to understand its


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impact and weigh its wisdom against the alternative approach of being sentenced if the

motion was denied, appealing the conviction with new counsel and retrying the leaving

the scene charge with new counsel. The plea was coerced by Mr. Bowles and Mr.

Gorence without adequate time for Defendant Fierro to consider it. He followed the

script laid out for him during the hearing.

27. After the plea, the testimony of Mr. Vick was followed by his letter to J udge

Vigil. In it, he made clear that the pedestrian caused his own death. He said, Mr.

Tenorio was J aywalking, was intoxicated, was walking in darkness while dressed in

dark clothing, he was preoccupied with his cell phone and he carelessly presented the

obstruction in the middle of the roadway where vehicles travel by inattentively walking

into the path of a readily identifiable approaching BMW. Circumstances such as these

have led to dismissals of vehicular homicide charges in other cases. There are many

publicly reported examples of favorable treatment received by some drivers where the

victims had used alcohol, drugs, were suicidal, or merely walked in front of the vehicle,

as here. These examples highlight a key point in this caseMr. Fierro was treated

differently. Mr. Vick points out he was prejudged guilty, and it was not only the jurys

prejudgment, but was also that of the media. The causation issue was underdeveloped

at trial, but with a properly selected jury in a neutral venue, and with better presentation

of the causation issue, he would have been acquitted. And in many places, absent the

political aspects of the case, he would have pled guilty to DWI. As Mr. Vick said in his

letter: This was not a case where an intoxicated driver caused the crash, the pedestrian

did. Mr. Fierro did not jump a curb and strike Mr. Tenorio on the sidewalk. Mr. Fierros

mistake was being under the influence when Mr. Tenorio walked in front of him.


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28. Mr. Bowles and other defense counsel failed to exercise the diligence and

professional responsibility essential to effective assistance of counsel for Petitioner. He

did so in the following respects, among others not yet identified:

a. Failed to adequately investigate the facts surrounding the accident,

and to direct his retained investigator in a manner which would

have assisted in the defense of the criminal case, directing instead

that the investigation and negotiations focus on making Mr. Fierro a

prosecution witness against others, particularly then-Governor

Richardson and other Democrats. A very substantial portion of the

time spent on the case by defense counsel was directed to this

theme, with special emphasis on assisting federal investigators who

were focusing on charging Governor Richardson with federal

crimes.

b. Failed to take sufficient witness statements as permitted by Rule 5-

503 in order to develop the causation issue.

c. Failed to seek, identify and retain as well as to effectively use

essential expert witnesses relating to causation. Likewise failed to

follow up on and develop evidence that the Santa Fe Police

Department investigation had initially concluded that the pedestrian

caused the accident and that it would have been unavoidable to

any driver in Mr. Fierros position. Failed to consult with a jury

selection specialist or, to themselves investigat prospective jurors

and, once the hidden jury consultant was discovered, failed to fully


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explore the relationships between that consultant, his family

members and jurors. The jurors were asked to identify knowledge

of the jury consultant, and the foreman failed to disclose that

knowledge.

d. Failed to adequately consult with and communicate with Defendant

Fierro.

e. Coerced and manipulated Mr. Fierro to accept the plea agreement

which had been negotiated based, in large part, upon

misrepresentations of the consequences of the plea and by

minimizing the likelihood of success on the appeal of his conviction

for Vehicular Homicide.

f. Failed to develop available evidence which would have exonerated

Mr. Fierro and failed to develop or even explore the details of the

trial strategy and failed to meaningfully discuss it with Mr. Fierro

even though he was an attorney who was capable of effectively

cooperating with his attorneys. Failed to properly and fairly inform

Defendant of the likely consequences of entering into the

negotiated plea agreement.

g. Coerced Mr. Fierro into entering into the plea agreement in this

case by misrepresenting key facts, distorting the realities which the

Defendant faced, and failing to discuss or advise him of alternatives

while creating artificial time pressures which had an additional

coercive effect.


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h. Failed to assure that the plea agreement was followed by

ineffectively allowing insufficient pretrial confinement time to be

included in the judgment, costing the Defendant additional time in

prison.

29. Had counsel conducted a complete investigation, taken key witness

statements, worked with expert witnesses in a normal and professional manner,

they would have been in a better position to defend Mr. Fierro in the trial on both counts,

with a probable outcome of acquittal.

30. Had Mr. Fierro been aware of the misrepresentations of his attorneys

concerning the consequences of their proposed plea agreement, been given the time

necessary to consult with family members and others, and considered available

alternatives, he would not have entered into the plea agreement, would have instead

directed that the motion for new trial proceed to hearing, and, if denied, that an appeal

be taken to the New Mexico Court of Appeals. He would have retained different counsel

for that purpose. The retrial of the second charge could then have proceeded with

different retained counsel.

31. The States failure to disclose a police investigation which would have

exonerated the defendant at trial by showing his driving was not a cause of the

accident, but rather that it was pedestrian caused, Defendant was denied due process

of law at the trial of this matter. His conviction must be reversed for the reasons more

fully explained in Smith v. Secretary, New Mexico Department of Corrections, 50 F.3d

801 (10th Cir. 1995).


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32. The use of a hidden attorney under contract to the District Attorneys office

using federal search tools and other means to investigate jurors was discovered part

way through trial by defense counsel. The failure to disclose the existence of the

attorney, who is well known in the Santa Fe area, to prospective jurors to determine

whether they knew or had been represented by him or his family members constituted

prosecutorial misconduct. That attorney was well known to the eventual foreman of the

jury, who had a pending criminal case, and who had a prior relationship with that

attorneys sister. The failure to discover and explore this relationship, and to seek to

exclude that juror from the jury, had a major impact on the verdict in this case. Post trial

interviews with jurors revealed his influence on the final verdict. In the event of an

appeal of his Vehicular Homicide conviction, Defendant could have presented these

issues, but the plea agreement prevented him from doing so.

33. The J udgment and Sentence had 299 days of presentence confinement,

in violation of the term of the plea agreement requiring that it include time served under

electronic monitoring and confinement. The failure to assure that all time was included

constitutes additional ineffective assistance of counsel.

Wherefore Defendant prays that this Honorable Court enter the writ of habeas

corpus, vacate his plea, vacate his convictions, and set this case for a new trial.


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Respectfully submitted,

RAY TWOHIG, P.C.

/s/ Ray Twohig

__________________________Ray TwohigAttorney for Petitioner8998 Rio Grande Blvd., N.W.Albuquerque, NM 87114Phone: (505) 898-0400

I certify that a true and correctcopy of the foregoing AmendedPetition for habeas corpus has

been served on the DistrictAttorneys Office and theAppellate Division of theAttorney General by emailon February 18, 2013.

/s/ Ray Twohig________________________Ray Twohig

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Carlos Fierro petition for new trial

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