Ogden V Attorney General For The State Of New Mexico
Appellate Case: 24-2140 Document: 12-1 Date Filed: 07/24/2025 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 24, 2025
_________________________________
Christopher M. Wolpert
Clerk of Court
KEVIN OGDEN,
Petitioner - Appellant,
v. No. 24-2140
(D.C. No. 1:22-CV-00801-JCH-JMR)
ATTORNEY GENERAL FOR THE (D. N.M.)
STATE OF NEW MEXICO;
PENITENTIARY OF NEW MEXICO
SOUTH; CHARLENE HAGERMAN,
Warden,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, BACHARACH, and EID, Circuit Judges.
_________________________________
Kevin Ogden is serving a life sentence for a New Mexico murder conviction. Yet
he asserts that he has completed the sentence and that he remains confined only because
prison authorities have unlawfully deprived him of good-time credits. He filed a
28 U.S.C. § 2241 habeas application seeking release, and the district court denied it. He
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 24-2140 Document: 12-1 Date Filed: 07/24/2025 Page: 2
now applies for a certificate of appealability (COA) to appeal the district court’s
judgment.1 See 28 U.S.C. § 2253(c)(1)(A).
I
Some New Mexico inmates can earn good-time credits that decrease the maximum
amount of time they “must serve in prison before being eligible for parole or release.”
State v. Tafoya, 237 P.3d 693, 698 (N.M. 2010). Since before Mr. Ogden’s 1992 crime,
however, New Mexico’s Department of Corrections has operated under the view that
good-time credits cannot decrease life sentences. See Compton v. Lytle, 81 P.3d 39,
40–41 (N.M. 2003), superseded by statute on other grounds. New Mexico’s legislature
made that point explicit in 1999. See id. at 45; 1999 N.M. Laws ch. 238, sec. 1
(clarifying that the relevant statute “shall not be interpreted as providing eligibility to
earn meritorious deductions from a sentence of life imprisonment”). And the Supreme
Court of New Mexico later confirmed that, even before the 1999 legislation, “the
Legislature intended that only inmates convicted of noncapital crimes receive the benefit
of good-time credits.” Compton, 81 P.3d at 45. Unable to take advantage of good-time
credits, New Mexico inmates serving life sentences become eligible for parole after
serving thirty years of the sentence. N.M. Stat. Ann. § 31-21-10(A).
In 1994, Mr. Ogden received a life sentence for a murder conviction and
consecutive sentences totaling six years for other convictions. He received a parole
hearing in 2022, but the board denied him parole.
1
Mr. Ogden represents himself, so we construe his filings liberally. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
Appellate Case: 24-2140 Document: 12-1 Date Filed: 07/24/2025 Page: 3
On the heels of his parole denial, Mr. Ogden filed the § 2241 application
underlying this case. The application raised four claims:
1. He is really serving a 36-year sentence2 that should have been reduced by
good-time credits. With those credits, he discharged the sentence long ago.
And by refusing to apply the credits to reduce his sentence, the Department of
Corrections has effectively revoked his credits without due process.
2. The Supreme Court of New Mexico committed fraud by issuing the decision in
Compton.
3. “Special laws have always been illegal and do not control over general laws.”
R. at 108 (formatting modified). This claim appears to criticize Compton’s
reliance on the canon of statutory construction holding that “the specific
governs the general,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384
(1992).
4. The 1999 legislation clarifying that good-time credits do not apply to a life
sentence is an ex post facto law as applied to Mr. Ogden.
The district court denied the habeas application.
II
To obtain a certificate of appealability, Mr. Ogden must show that reasonable
jurists would find the district court’s resolution of his “constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). He has not done so.
First, he asserts that all New Mexico inmates—including those serving life
sentences—“convicted before 1999” must receive good-time credits against their
2
We suspect Mr. Ogden came up with 36 years by adding the 30 years he was
required to serve on his life sentence and the 6 consecutive years he received on other
counts. Whatever the reasoning behind it, the calculation is incorrect. On the murder
count, he is serving a life sentence, not, for example, a 30-year sentence. New Mexico’s
parole laws require that he serve at least 30 years on the sentence. After serving
30 years, he became merely eligible for parole on the sentence.
3
Appellate Case: 24-2140 Document: 12-1 Date Filed: 07/24/2025 Page: 4
sentences that cannot be revoked without due process. COA Appl. at 2 (formatting
modified). Compton forecloses this argument. See 81 P.3d at 45.
Mr. Ogden’s attempts to distinguish Compton fall short. Granted, differences exist
between Compton and this case. The inmate in Compton sought good-time credits in part
for time spent on death row (before his sentence was commuted to life imprisonment),
whereas Mr. Ogden never had a death sentence. See id. at 40. And the Department of
Corrections initially (and erroneously) applied good-time credits to the inmate’s sentence
in Compton (before ultimately removing them). See id. But those differences do not
matter. Compton’s holding—that “inmates serving life sentences” cannot receive the
benefit of good-time credits—squarely addresses Mr. Ogden’s circumstances.3 Id.
Second, Mr. Ogden alleges several errors in the Compton decision. But whether
the Supreme Court of New Mexico erred in interpreting New Mexico statutes is a matter
of state law that we cannot address here. After all, “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991).
Third, Mr. Ogden says that “special laws have always been illegal and do not
control over general laws.” COA Appl. at 7 (formatting modified). This argument
confuses a type of legislation that New Mexico calls a “special law,” see Thompson v.
3
The record suggests that Mr. Ogden has accumulated good-time credits over the
years. And he faults the district court for labelling his good-time credits unearned. But
whether he has earned any accumulated credits does not matter. What matters is that
New Mexico law prohibits prison officials from applying the credits to reduce his life
sentence. See Compton, 81 P.3d at 45.
4
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McKinley County, 816 P.2d 494, 496 (N.M. 1991), with the well-established canon of
construction (employed in Compton) recognizing that the specific controls over the
general. Grounded in confusion, this argument presents no coherent constitutional claim.
Fourth, Mr. Ogden asserts that “retroactive laws have always been illegal.”
COA Appl. at 8 (formatting modified). This assertion hints at two possible constitutional
claims, but neither has even debatable merit.
The 1999 legislation clarifying that life sentences will not be reduced through
good-time credits is not an ex post facto law. The law is prospective, applying only “to
persons convicted of a criminal offense committed on or after July 1, 1999.” 1999 N.M.
Laws ch. 238, sec. 8. So it does not even apply to Mr. Ogden. And even if it did, it
would not violate the Ex Post Facto Clause because it does not “disadvantage” him.
Weaver v. Graham, 450 U.S. 24, 29 (1981). Even before the 1999 legislation, the
relevant statutes precluded inmates serving life sentences from receiving “the benefit of
good-time credits.” Compton, 81 P.3d at 45.
Nor does it violate due process to apply Compton’s holding to Mr. Ogden’s
sentence because Compton’s interpretation of New Mexico’s parole and good-time
statutes was foreseeable. See Lustgarden v. Gunter, 966 F.2d 552, 554 (10th Cir. 1992).
Indeed, the New Mexico Attorney General had adopted the same interpretation years
before Mr. Ogden’s crime. See Compton, 81 P.3d at 40.
5
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III
We grant Mr. Ogden’s motion to proceed without prepaying costs or fees. We
deny a certificate of appealability and dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
6