                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  April 2, 2008
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 RONALD JENNINGS FOGLE,

       Petitioner-Appellant,

 v.                                                     No. 07-1491
                                                (D.C. No. 07-cv-01636-ZLW)
 WARDEN DICK SMELSER; JOHN                               (D. Colo.)
 SUTHERS, Attorney General of the
 State of Colorado,

       Respondents-Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Ronald Jennings Fogle, a state prisoner proceeding pro se, requests a

Certificate of Appealability (“COA”) to appeal the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition. For substantially the same reasons as the

district court, we DENY a COA and DISMISS the appeal.

      Fogle was convicted in Colorado state court on August 4, 2000, of second-

degree kidnaping, simple robbery, aggravated robbery, and attempted aggravated

robbery. Based on several prior Maryland felony convictions, the trial court

concluded that Fogle was a habitual criminal and sentenced him to 64 years’
imprisonment. Fogle pursued unsuccessful direct and collateral state appeals, and

the Colorado Supreme Court denied review of his final motion for postconviction

relief on July 16, 2007.

      Fogle filed an application for habeas relief in federal district court on

August 2, 2007. In response to a magistrate judge’s order that he clarify two of

the claims asserted in his application, Fogle filed an amended petition on October

19, 2007. His amended petition asserted three claims: (1) His Maryland

convictions, which the Colorado sentencing court used in treating Fogle as an

habitual criminal, were based on an unconstitutional plea; (2) The sentencing

court erred by counting his Maryland convictions as four separate convictions,

even though they were consolidated for the purposes of entering a guilty plea, in

violation of the Full Faith and Credit Clause; and (3) The sentencing court erred

by relying on unauthenticated records of Fogle’s Maryland conviction, in

violation of the Equal Protection Clause. The district court dismissed Fogle’s

petition, finding that his first claim was an impermissible challenge to a prior

conviction, and that the remaining two claims failed to raise a violation of federal

constitutional or statutory law. It also denied his subsequent motion for a COA.

Fogle now seeks a COA from this court. 1

      1
         Because the district court denied Fogle a COA, he may not appeal the
district court’s decision absent a grant of a COA by this court. 28 U.S.C.
§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
                                                                      (continued...)

                                        -2-
      Fogle is entitled to habeas relief only if the state court decision he

challenges was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States” or “based on an unreasonable determination of the facts in light of the

evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). A federal court “may not issue

the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” Williams v.

Taylor, 529 U.S. 362, 411 (2000). We review a district court’s legal analysis of a

state court decision de novo. Turrentine v. Mullin, 390 F.3d 1181, 1189 (10th

Cir. 2004).

      Fogle first contends that the Maryland convictions used to support his

Colorado habitual offender status were unconstitutional because his plea was not

knowingly, voluntarily, and intelligently entered. 2 Fogle does not contend,

      1
        (...continued)
requires Fogle to show “that 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
      2
        In support of this issue, Fogle’s initial habeas petition cited state and
federal procedural rules rather than a specific provision of the United States
Constitution. His amended petition cites the United States Constitution, but lacks
developed arguments. We note, however, that Fogle has attached to his
application excerpts from state court motions that present an involuntary plea
argument based on constitutional grounds. Construing Fogle’s pro se pleadings
                                                                         (continued...)

                                         -3-
however, that he is in custody for the Maryland convictions that he indirectly

challenges. We therefore cannot reach this claim because federal courts have

jurisdiction to review habeas petitions from state court prisoners only when the

petitioner “is in custody in violation of the Constitution or laws or treaties of the

United States.” § 2254(a) (emphasis added). This remains so even though

Fogle’s conviction was later used to lengthen his sentence for his subsequent

Colorado crime. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394,

402-03 (2001).

      Courts have acknowledged two potential exceptions to this rule. Neither

applies here. First, a trial court’s failure to appoint counsel in violation of the

Sixth Amendment allows for habeas review of a prior conviction notwithstanding

the petitioner’s release. Coss, 532 U.S. at 404 (citing Gideon v. Wainwright, 372

U.S. 335 (1963)). Fogle, however, was represented by counsel at his Maryland

plea hearing. Under the second exception, habeas review may remain available

even after a sentence expires when, through no fault of the petitioner, he has no

other channel of review available. See Coss, 532 U.S. at 405. Fogle does not

contend that he lacked any other channel of review for his Maryland convictions.

We therefore deny a COA on this issue.



      2
        (...continued)
liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we conclude
that his § 2254 petition fairly raises this same constitutional argument.

                                          -4-
      Fogle next contends that the sentencing court violated the Full Faith and

Credit Clause by failing to honor the Maryland court’s order consolidating his

four Maryland charges into one case for the purposes of entering a plea. He

reasons that, because of this consolidation, his four convictions should have been

treated as a single conviction under the Colorado habitual criminal statute, Colo.

Rev. Stat. § 18-1.3-801(2). But Fogle does not explain how Colorado’s

characterization of an out-of-state conviction, used only to calculate a Colorado

sentence, affords anything less than full faith and credit to Maryland’s interest in

the earlier conviction. Because Fogle has belatedly attached a federal

constitutional label to a pure issue of state law, we cannot grant a COA on this

claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the

province of a federal habeas court to reexamine state-court determinations on

state-law questions. In conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the

United States.”).

      Finally, Fogle claims that the sentencing court relied on improperly

authenticated records establishing his Maryland convictions. He claims that this

error violated the Equal Protection Clause because other prisoners are sentenced

using properly authenticated records. The Colorado Court of Appeals rejected

Fogle’s evidentiary argument, concluding that the trial court relied on admissible

evidence. On collateral review, we give considerable deference to state court

                                         -5-
evidentiary rulings, and may not provide habeas relief unless those rulings were

“so fundamentally unfair that a denial of constitutional rights results.” Duckett v.

Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (quotation omitted). Fogle presents

no evidence that the court relied on inaccurate records or that these records

otherwise rendered his sentence fundamentally unfair. We thus deny a COA on

this claim as well. 3

       Fogle’s request for a COA is DENIED, and his petition is DISMISSED.

His motion to proceed in forma pauperis is GRANTED.



                                       Entered for the Court



                                       Carlos F. Lucero
                                       Circuit Judge




       3
        Even if Fogle’s second and third claims properly raise an issue of federal
constitutional law, his petition would be subject to dismissal for failure to exhaust
because he presented these claims to the Colorado courts solely in terms of state
law. See 28 U.S.C. § 2254(b)(1)(A) (requiring state court exhaustion).
Notwithstanding this potential failure to exhaust, we reject his claims on their
merits. See Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002); see also
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”).

                                        -6-
