Fogleman v. Hubbard

Decision Date25 January 2022
Docket NumberCivil Action 1:20-CV-12-HSO-RPM
CourtU.S. District Court — Southern District of Mississippi



Civil Action No. 1:20-CV-12-HSO-RPM

United States District Court, S.D. Mississippi, Southern Division

January 25, 2022




On January 13, 2020, petitioner Jeremy Shane Fogleman (“Fogleman”), proceeding pro se, filed a writ for habeas corpus seeking immediate release from pretrial detention. Doc. [1]. Originally brought under both 28 U.S.C. § 2241 (“Section 2241”) and 28 U.S.C. § 2254, U.S. District Judge Ozerden (“Judge Ozerden”) issued an construing Fogleman's habeas petition as arising solely under Section 2241 because he is only challenging his pretrial detention. Doc. [5]. On March 17, 2021, respondent Evan Hubbard (“State”) filed the instant motion to dismiss. Doc. [30].


In the early morning hours of July 8, 2015, Gulfport Police Department Officer Nicholas Kehoe (“Officer Kehoe”) spotted an orange Chevrolet Camaro (“Camaro”) doing “burnouts” around the traffic intersection between 28th Street and 22nd Avenue in Gulfport, MS. Doc. [31], Ex. 42, (T. 665); Ex. 43 (T. 822). Turning on his lights and siren, Officer Kehoe attempted to pull over the Camaro for careless driving. Id., Ex. 42, (T. 667). However, the Camaro sped off at a “very high rate of speed . . . in excess of 80 MPH” Ibid. After only a few blocks, the Camaro ran


a red light at another intersection and struck the side of Edward Frederickson's (“Frederickson”) car at roughly 65 MPH; the impact caused both cars to careen into Cassandra Walker's (“Walker's”) car. Id., Ex. 14, at 11; Ex. 42, (T. 669); Ex. 43, (T. 822, 825); Ex. 46, (T. 1250-53). Immediately after the accident, Officer Kehoe observed Fogleman exit the Camaro through the driver's side door. Id., Ex. 42, (T. 671-75). Conducting an inventory search of the crashed Camaro, Officer Kehoe discovered roughly 2.3 grams of methamphetamine in the car's central console. Id., Ex. 42, (T. 677-78). While Walker eventually recovered from the serious injuries she suffered, Frederickson dies of his injuries a few days after the crash. Id., Ex. 43, (T. 825, 828); Ex. 46, (T. 1250-53). On February 17, 2016, Fogleman appeared at a preliminary hearing in connection with the above events. See, e.g., Doc. [31], Ex. 7, at 2, 51; Ex. 8, at 14. At that hearing, he allegedly made perjurious statements about the identity of the Camaro's driver. See, e.g., id., Ex. 7, at 51; Ex. 37, at 107; Ex. 38, (T. 109, 171, 205).

On August 1, 2016, a grand jury indicted Fogleman with four felonies: (i) failure to stop a motor vehicle pursuant to a law enforcement officer's signal that resulted in the death of another person (Count I), Miss. Code. Ann. § 97-9-72(4); (ii) failure to stop a motor vehicle pursuant to a law enforcement officer's signal that resulted in serious bodily injury to another person (Count II), Miss. Code. Ann. § 97-9-72(3); (iii) possession of a controlled substance (Count III), Miss. Code. Ann. § 41-29-139(c)(1); and (iv) perjury (Count IV), Miss. Code. Ann. § 97-9-59. See Doc. [11], Ex. 1; [31], Ex. 39, at 52.[1] On February 14, 2018, he was denied pretrial bond on the grounds that he was a “special danger” to the community. Doc. [31], Ex. 3, at 149-50; Ex. 13, at


80; Ex. 38 (T. 137). The perjury charge was eventually severed from the other charges. Doc. [27], Ex. 3; [31], Ex. 39, (T. 279).

Thereafter, Fogleman eventually filed the present pretrial habeas petition on January 13, 2020. Doc. [1].[2] Shortly after Fogleman filed the instant petition, he was brought to trial on Counts I- III. Doc. [11], Ex. 4. On February 13, 2020, a jury convicted Fogleman on all three counts and the state trial judge sentenced him to fifty years in prison. Ibid. At that time, however, the State did not pursue the severed perjury charge. Doc. [11], Ex. 4. See also Fogleman v. State, 311 So.3d 1221, 1225 n.1 (Miss. Ct. App. 2021). After Fogleman was convicted, the State moved to dismiss Fogleman's pretrial habeas petition on the grounds that it was moot. Doc. [11].

On January 15, 2021, the undersigned filed a report and recommendation opining that Fogleman's pretrial habeas petition should be dismissed as moot. Doc. [24]. On March 9, 2021, U.S. District Judge Sul Ozerden (“Judge Ozerden”) entered an Order overruling in part Fogleman's objections and modifying in part this Court's report and recommendation. Doc. [29]. In overruling Fogelman's objections, Judge Ozerden dismissed his habeas petition without prejudice insofar as it concerned Counts I-III. Id., at 8-9. Modifying this Court's conclusions, however, Judge Ozerden identified the State's lack of clarity about whether Count IV was dismissed. Id., at 6. See also Doc. [11], Ex. 1. After the State presented an order demonstrating that Count IV was “passed to the files, ” Doc. [28], Ex. 1, Judge Ozerden expressed concern that “passing to the files” did not equate a dismissal. Doc. [29], at 7. As a result, the State was granted leave to refile its motion to dismiss


with additional clarity on this issue. Ibid. Taking this opportunity, the State filed the instant motion focusing on the sole remaining Count underlying Fogleman's petition, Count IV. Doc. [30].[3]


A. Is there still an “Active Case or Controversy?”

i. Introduction

The Court begins with the State's threshold argument that Fogleman's habeas petition no longer presents an active case or controversy. Doc. [30], at 7-12. While conceding that Fogleman was “in custody” upon filing his habeas petition, 28 U.S.C. § 2241(c)(3), [4] and declining to raise an exhaustion argument, the State argues that passing an indictment to the files, within itself, extinguishes any existing case or controversy in a pretrial habeas petition. Doc. [30], at 7-12.

ii. Active Case or Controversy Generally

Pursuant to Section 2241, a pretrial detainee can file a habeas petition. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). In order to be eligible for pre-trial habeas relief, “a petitioner must be ‘in custody' and must have exhausted his available state remedies[.]” Dickerson v. Louisiana, 816 F.2d 220, 224-26 (5th Cir. 1987). While Section 2241 itself contains the “in custody” requirement, 28 U.S.C. § 2241(c)(3), “[t]he exhaustion doctrine is a judicially crafted instrument [, ]'” Braden, 410 U.S. at 490, 93 S.Ct. 1123


(citations omitted). However, the habeas petitioner need not only be “in custody” and exhaust his state remedies to maintain a pretrial habeas petition. “‘In order to maintain jurisdiction, the court must have before it an actual case or controversy at all stages of the judicial proceedings.'” Herndon v. Upton, 985 F.3d 443, 446 (5th Cir. 2021) (quoting United States v. Vega, 960 F.3d 669, 672 (5th Cir. 2020)). As such, the petitioner must “separately satisfy the case-or-controversy requirement of Article III, Section 2 of the Constitution[, ]” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), which constrains federal court jurisdiction to adjudicating “actual, ongoing controversies between litigants[, ]” Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). However, “[a] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (internal quotation marks and citation omitted). See also Salgado v. Fed. Bureau of Prisons, 220 Fed.Appx. 256, 257 (5th Cir. 2007) (finding that a Section 2241 habeas petition is only moot when the “court cannot grant the relief requested by the moving party. . . .”).

iii. Passing an Indictment to the Files Generally

Passing an indictment (or charge) to the files describes a method by which the State can “postpone” a criminal judicial proceeding. Hall v. State, 187 So.3d 133, 137 (Miss. 2016) (quoting Gordon v. State, 90 So. 95, 95 (Miss. 1921)). Normally, the State will pass an indictment, or a portion thereof, to the files when it is “unwilling to recommend a[n] [order of] nolle prosequi, ” Hall, 187 So.3d at 137, i.e. dismissal of the indictment without prejudice, Payton v. State, 41 So.3d 713, 717-18 (Miss. Ct. App. 2009); Beckwith v. Anderson, 89 F.Supp.2d 788, 792 (S.D.Miss. 2000), but willing to, for example, decline to pursue the charge “pending good behavior” by the defendant, Hall, 187 So.3d at 137. See also Cooper v. State, 118 So. 452, 452 (Miss. 1928) (finding


passing indictment to the files appropriate while defendant's competency was in question). Furthermore, at least as a matter of course, the State must move the state trial court to pass an indictment to the files. Cooper, 118 So. at 452; Lofton, 115 So. at 593. When the State has passed an indictment to the files, the indictment is declared “inactive” and remains pending as such on the state trial court's “inactive” docket. Hall, 187 So.3d at 137; Walton v. City of Tupelo, 90 So.2d 193, 194 (Miss. 1956).[5] To “reactivate” an indictment passed to the files, the State must file a motion with the state trial court. Hall, 187 So.3d at 137; Byrd v. State, 175 So. 190, 191 (Miss. 1937); Gordon, 90 So. at 95. At that time, the defendant may challenge reactivation of the indictment. See, e.g., Rush v. State, 182 So.2d 214, 216-17 (Miss. 1966). While passing an indictment to the files is a court-approved process, the procedure lacks formal codification in statute or court rule.[6]

iv. Does passing an indictment to the files operate as a dismissal of the indictment?

Within the above context, the Court turns to the State's argument that passing an indictment to the files equates a dismissal without prejudice and, thus, renders Fogleman's petition moot. Doc. [30], at 7-12. For the...

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