Fogle v. Miller et al

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/28/13. 1 Motion for Appointment of Counsel in State Clemency Proceeding and 4 Amended Motion for Appointment of Counsel in State Clemency Proceeding are denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01938-BNB
RONALD JENNINGS FOGLE,
Plaintiff,
v.
MICHAEL MILLER, Warden, and
JOHN W. SUTHERS, Colorado Attorney General,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Ronald Jennings Fogle, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Fogle initiated this action by filing pro se a “Motion for
Appointment of Counsel in State Clemency Proceeding” (ECF No. 1). In the motion,
Plaintiff asks the Court to appoint counsel to represent him and he asserts that counsel
would decide what legal action should be taken, including the possibility of seeking
habeas corpus relief pursuant to either 28 U.S.C. § 2241 or 28 U.S.C. § 2254 or filing a
state clemency petition. However, Mr. Fogle failed to cite any authority that would allow
the Court to consider the motion to appoint counsel prior to his filing a proper pleading.
Therefore, the instant action was commenced and, on July 22, 2013, Magistrate Judge
Boyd N. Boland entered an order directing Mr. Fogle to cure certain deficiencies if he
wished to pursue any claims in this action. Specifically, Magistrate Judge Boland
directed Mr. Fogle to file an application for a writ of habeas corpus on the proper form
and either to pay the $5.00 filing fee for a habeas corpus action or to file a motion

seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 along with a
certificate from an appropriate prison official showing the balance in his inmate account.
Mr. Fogle was warned that the action would be dismissed without further notice if he
failed to cure the deficiencies within thirty days.
On August 7, 2013, Mr. Fogle filed an “Amended Motion for Appointment of
Counsel in State Clemency Proceeding” (ECF No. 4) and paid the $5.00 filing fee for a
habeas corpus action. Mr. Fogle clarifies in the amended motion that he is asking the
Court to appoint counsel to represent him only in connection with a state clemency
petition, citing Harbison v. Bell, 556 U.S. 180 (2009), in support of his request.
However, nothing in Harbison is applicable to Mr. Fogle because, in Harbison, the
United States Supreme Court addressed the scope of a federal statute, 18 U.S.C. §
3599, that authorizes federally appointed counsel in certain death penalty cases. See
id. Mr. Fogle alleges that he was sentenced to a term of years in prison.
Mr. Fogle has failed to cure all of the deficiencies within the time allowed
because he has not filed a proper pleading. Therefore, the action will be dismissed
without prejudice for failure to cure all of the deficiencies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
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ORDERED that the action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Mr. Fogle failed to cure all of the
deficiencies as directed. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that the “Motion for Appointment of Counsel in State
Clemency Proceeding” (ECF No. 1) and the “Amended Motion for Appointment of
Counsel in State Clemency Proceeding” (ECF No. 4) are denied as moot.
DATED at Denver, Colorado, this 28th day of

August , 2013.

BY THE COURT:

s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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