Fogle v. Coffman

Filing 4

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/16/15. No certificate of appealability will issue, and 2 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01953-GPG
RONALD JENNINGS FOGLE,
Petitioner,
v.
CYNTHIA COFFMAN, Colorado Attorney General,
Respondent.

ORDER OF DISMISSAL

Petitioner, Ronald Jennings Fogle, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Crowley County Correctional Facility in Olney
Springs, Colorado. Mr. Fogle has filed pro se a Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241 (ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2). Mr.
Fogle will not be required to file an amended pleading on the proper form because the
action will be dismissed for lack of jurisdiction for the reasons discussed below. The
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action will be denied as moot because Mr. Fogle has paid the $5.00
filing fee for a habeas corpus action.
The Court must construe the petition liberally because Mr. Fogle is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an

advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Mr. Fogle is challenging the validity of the habitual criminal sentence he is
serving as a result of his conviction in Denver District Court case number 99CR136. He
specifically claims that Colorado’s habitual criminal statute violates the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution because the statute is not applied consistently to all offenders in the State
of Colorado who have three or more prior felony convictions. Because Mr. Fogle is
challenging the validity of his sentence and not the execution of his sentence, the Court
construes the petition as seeking relief pursuant to 28 U.S.C. § 2254. See Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir. 2000).
Mr. Fogle has filed a number of prior habeas corpus actions in the District of
Colorado challenging the validity of his conviction and sentence in Denver District Court
case number 99CR136. Mr. Fogle initially 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 then filed a habeas corpus 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-009322

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 with respect to that conviction.
Mr. Fogle next filed a habeas corpus action pursuant to 28 U.S.C. § 2241
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. 13cv-00486-LTB (D. Colo. May 9, 2013). The Court construed case number 13-cv-00486LTB as seeking relief 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.
Mr. Fogle then filed another 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-02759LTB (D. Colo. Nov. 6, 2013). The Court dismissed case number 13-cv-02759-LTB 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 yet another 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. Raemisch, No.
14-cv-03381-LTB (D. Colo. Jan. 27, 2015). The Court dismissed case number 14-cv03381-LTB 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 any of these prior actions in the instant petition, the
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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
petition is a second or successive application.
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 does not allege, and there is no indication in the petition, that he has
obtained authorization from the Tenth Circuit to file a second or successive § 2254
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application. Therefore, the Court must either dismiss the petition for lack of jurisdiction
or, if it is in the interest of justice, transfer the petition to the Tenth Circuit pursuant to 28
U.S.C. § 1631. In re Cline, 531 F.3d at 1252. The factors to be
considered in deciding whether a transfer is in the interest of
justice include whether the claims would be time barred if
filed anew in the proper forum, whether the claims alleged
are likely to have merit, and whether the claims were filed in
good faith or if, on the other hand, it was clear at the time of
filing that the court lacked the requisite jurisdiction.
Id. at 1251. When “there is no risk that a meritorious successive claim will be lost
absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is
not in the interest of justice to transfer the matter.” Id. at 1252.
Mr. Fogle fails to demonstrate that his claim in this action is based on either a
new and retroactive rule of constitutional law or newly discovered evidence as required
pursuant to § 2244(b)(2). Therefore, the Court finds that a transfer is not in the interest
of justice for that reason alone. See id.
Consideration of the other relevant factors also supports this conclusion.
Although it appears that the petition would be time-barred if filed anew in the proper
forum, it appears that the petition would be time-barred even if Mr. Fogle had sought
proper authorization prior to filing in this Court. There also is no indication that the claim
Mr. Fogle seeks to raise has any merit. Finally, it was clear when the instant action was
filed that this Court lacks jurisdiction over the petition. As demonstrated above, Mr.
Fogle has been advised in a number of prior habeas corpus actions that this Court lacks
jurisdiction to consider claims challenging the validity of his conviction or sentence in a
second or successive application in the absence of authorization by the Tenth Circuit.

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As a result, the Court finds that a transfer of this action to the Tenth Circuit is not in the
interest of justice. Instead, the action will be dismissed for lack of jurisdiction.
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 Mr. Fogle files a notice of appeal he also must pay the full $505
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
ORDERED that the habeas corpus petition (ECF No. 1) is denied and the action
is dismissed for lack of jurisdiction. It is
FURTHER ORDERED that no certificate of appealability will issue because
Petitioner has not made a substantial showing of the denial of a constitutional right. 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 Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2) is
denied as moot.
DATED at Denver, Colorado, this 16th day of

September , 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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