Fogle v. Miller et al

Filing 5

ORDER by Magistrate Judge Boyd N. Boland on 10/28/13, that within 14 days from the date of this order, Applicant shall submit to the court proof that he has obtained authorization from the United States Court of Appeals for the Tenth Circuit to file a second or successive habeas corpus application. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02759-BNB
RONALD JENNINGS FOGLE,
Applicant,
v.
MICHAEL MILLER, Warden, and
JOHN W. SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER

Applicant, Ronald Jennings Fogle, initiated this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1)
challenging the validity of the sentence he is serving as a result of his criminal
conviction in Denver District Court case number 99CR136. Mr. Fogle claims in the
application that the habitual criminal sentence he is serving violates the Fourteenth
Amendment to the United States Constitution and that counsel was ineffective in failing
to challenge application of the Colorado habitual criminal statute.
Mr. Fogle has filed three prior habeas corpus actions pursuant to § 2254 in the
District of Colorado challenging the validity of his conviction and sentence in Denver
District Court case number 99CR136. In the first § 2254 action, Mr. Fogle challenged
the validity of his convictions and sentences in three Denver District Court cases, one of
which was 99CR136. See Fogle v. Smelser, No. 07-cv-01636-ZLW (D. Colo. Nov. 13,
2007), appeal dismissed, 314 F. App’x 89 (10th Cir. 2008). Case number 07-cv-01636-

ZLW was dismissed on the merits because Mr. Fogle’s first claim was an impermissible
challenge to prior Maryland convictions used to enhance his Colorado sentence and his
other claims did not raise cognizable federal constitutional issues. Mr. Fogle
subsequently filed another § 2254 action challenging the validity of his convictions and
sentences in six Denver District Court cases, one of which again was 99CR136. See
Fogle v. Smelser, No. 10-cv-00932-ZLW (D. Colo. June 22, 2010), appeal dismissed,
No. 10-1291 (10th Cir. July 30, 2010). In case number 10-cv-00932-ZLW, Mr. Fogle’s
claims relevant to Denver District Court case number 99CR136 were dismissed for lack
of jurisdiction because Mr. Fogle had not obtained the necessary authorization to file a
second or successive application. Most recently, Mr. Fogle filed an application for a writ
of habeas corpus challenging the validity of the habitual criminal sentence he is serving
as a result of his conviction in Denver District Court case number 99CR136. See Fogle
v. Miller, No. 13-cv-00486-LTB (D. Colo. May 9, 2013). In case number 13-cv-00486LTB, the Court construed the habeas corpus application as asserting claims pursuant to
§ 2254 and dismissed the action for lack of jurisdiction because Mr. Fogle had not
obtained the necessary authorization to file a second or successive application.
Although Mr. Fogle fails to list each of these prior actions in the application (see
ECF No. 1 at 7), the court may take judicial notice of its own records and files that are
part of the court’s public records, see St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). The court has examined the records for
the cases listed above and finds that Mr. Fogle previously has challenged the validity of
his conviction and sentence in Denver District Court case number 99CR136. Therefore,
the instant application is a second or successive application.
2

Pursuant to 28 U.S.C. § 2244(b)(3)(A), Mr. Fogle must apply to the United States
Court of Appeals for the Tenth Circuit for an order authorizing this court to consider his
second or successive habeas corpus application. See In re Cline, 531 F.3d 1249, 1252
(10th Cir. 2008) (per curiam). In the absence of such authorization, the court lacks
jurisdiction to consider the merits of the claims asserted in a second or successive §
2254 application. See id. at 1251. An applicant seeking authorization to file a second
or successive application for a writ of habeas corpus pursuant to § 2254 must
demonstrate that any claim he seeks to raise is based on “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable,” 28 U.S.C. § 2244(b)(2)(A); or that “the factual predicate for the
claim could not have been discovered previously through the exercise of due diligence”
and “the facts underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(B).
Mr. Fogle alleges that he has obtained authorization from the Tenth Circuit to file
a second or successive § 2254 application. (See ECF No. 1 at 7.) However, he fails to
provide proof of such authorization to the court. Therefore, Mr. Fogle will be ordered to
submit to the court documentary evidence that he has received authorization from the
Tenth Circuit to file a second or successive habeas corpus application that raises the
claims he is asserting in the instant application challenging the validity of his conviction
and sentence in Denver District Court case number 99CR136. Accordingly, it is
ORDERED that, within fourteen (14) days from the date of this order,
3

Applicant shall submit to the court proof that he has obtained authorization from the
United States Court of Appeals for the Tenth Circuit to file a second or successive
habeas corpus application.
DATED October 28, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

4