United States District Court, S.D. Indiana, Indianapolis Division
Fogle, #12919-028 Englewood Federal Correctional Institution
Steven D. DeBrota UNITED STATES ATTORNEY'S OFFICE
ENTRY REGARDING OBJECTIONS TO NOVEMBER 8, 2017 ORDER
AND OPPORTUNITY TO CONVERT “MOTION TO CORRECT CLEAR
ERROR” TO A MOTION PURSUANT TO 28 U.S.C. §
WALTON PRATT, JUDGE
matter is before the Court on defendant Jared Fogle's
(“Fogle”) Objections to the Courts November 8
2017 order. See Dkts. 112 and 113. The Court is also
providing Fogle an opportunity to convert his Rule 52(b)
motion to a motion pursuant to 28 U.S.C. § 2255, if it
was his intent to move to vacate or set aside the sentence
imposed in this criminal case.
The Rule 52(b) Motion
November 8, 2017, the Court denied Fogle's frivolous and
untimely pro se Motion to Correct Clear Error
Pursuant to Rule 52(b) of the Federal Rules of Civil
Procedure. In that motion, Fogle challenges the
Court's subject matter jurisdiction over this criminal
case. Because this district court clearly had subject matter
jurisdiction over Fogle's criminal proceedings his motion
was summarily denied. See 18 U.S.C. § 3231
(providing that “[t]he district courts of the United
States shall have original jurisdiction . . . of all offenses
against the laws of the United States.”).
before the Court are Fogle's objections to that ruling.
He references the Tenth Amendment and continues to deny that
this Court has jurisdiction over this criminal case. He
requests that a final judgment be issued on the Motion to
Correct Clear Error Pursuant to Rule 52(b) so that an appeal
may be taken.
second final judgment shall not issue in this criminal case.
A judgment is not necessary to appeal a ruling on a
post-judgment motion. Rule 4(b) of the Federal Rules of
Appellate Procedure sets forth rules governing the filing of
an appeal in a criminal case. Rule 4(b)(A) provides,
“In a criminal case, a defendant's notice of appeal
must be filed in the district court within 14 days after the
later of: (1) the entry of either the judgment or the
order being appealed; or (ii) the filing of the
government's notice of appeal.” (emphasis added).
If Fogle would like to appeal the ruling on his frivolous
motion, he may do so. Accordingly, Fogle's requests and
objections, Dkts. , , and  are
A Motion under 28 U.S.C. § 2255
alternative, Fogle shall have through January 10,
2018, to notify the Court whether he would like his
Rule 52(b) motion to be treated as a motion pursuant to 28
U.S.C. § 2255. In making this decision, Fogle is
notified of the following:
may grant relief from a federal conviction or sentence
pursuant to 28 U.S.C. § 2255 “upon the ground that
the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” “A
post-judgment motion [in a criminal action in federal court]
needs a source of authority for the judge to act. . .
.” United States v. Scott, 414 F.3d 815, 816
(7th Cir. 2005). This is because “[a] district court
does not have inherent authority to modify a previously
imposed sentence; it may do so only pursuant to statutory
authorization.” United States v. Mendoza, 118
F.3d 707, 709 (10th Cir. 1997); see also United States v.
Krilich, 257 F.3d 689, 693 (7th Cir. 2001).
of the circumstance described above, it is important that a
defendant seeking relief pursuant to Section 2255 set forth
all claims and grounds on which he seeks relief. The failure
to do so jeopardizes the defendant's potential
opportunity to present a claim which is omitted from the
first such motion. As explained in In Re Davenport,
147 F.3d 605, 610 (7th Cir. 1998), “[t]he amended
section 2255 gives a convicted defendant only one further
bite at the apple after his direct appeal unless he can
demonstrate a compelling reason, as defined in the section
(newly discovered evidence of innocence or a new and
retroactive rule of constitutional law).”
shall have through January 12, 2018 by which
to notify the Court whether he would like his Rule 52(b)
motion to be treated as a motion pursuant to 28 U.S.C. §
2255. If he chooses to proceed under 28 U.S.C. § 2255,
he must supplement his motion filed on
November 6, 2017 with a complete statement of the claims and
grounds on which he could and does challenge his conviction
and/or sentence. Castro v. United States, 540 U.S.
375, 383 (2003). He may, in the alternative, notify the Court
that the filing of November 6, 2017, does constitute a
complete statement of the claims and grounds on which he
could and does challenge his conviction and/or sentence.
Fogle does not inform the Court, by January 12.
2018, that he would like his November 6, 2017 motion
to be proceed under Section 2255, that motion will be
understood to be withdrawn insofar as it could be thought to
seek relief authorized by 28 U.S.C. § 2255.