Jones v. Martin , 622 F. App'x 738 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 12, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
NATHAN E. JONES,
Petitioner - Appellant,
v. No. 15-8022
(D.C. No. 2:14-CV-00209-ABJ)
TODD MARTIN, Warden, Wyoming (D. Wyo.)
Honor Conservation Camp, Wyoming
Department of Corrections,
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
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Nathan Jones, a Wyoming state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his federal habeas petition.
Jones is currently serving time for participating in an armed robbery while he was on
parole from a life sentence for felony murder. He argues he has been held unlawfully for
more than three years past the expiration of his sentences because the Wyoming
penitentiary ran his armed robbery sentences consecutive to, instead of concurrent with,
the sentence he received when his parole was revoked. Jones challenges the execution of
his sentences under 28 U.S.C. § 2241.
*
This order is not binding precedent except under the doctrines of law of the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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
In 1975, Jones was convicted of first-degree felony murder and sentenced to life in
prison. But after serving 14 years he was released on parole based on his good behavior.
After four years on parole, Jones was convicted of aiding and abetting armed robbery and
conspiracy to commit armed robbery. At sentencing, Jones asked the court to run his
sentences for armed robbery concurrent with the parole-revocation sentence that was sure
to follow. The sentencing judge declined, leaving it to the parole board to determine
whether Jones’ robbery sentences should run concurrent with or consecutive to whatever
remained of Jones’ 1975 sentence.
In turn, the Wyoming penitentiary treated the sentences as consecutive and Jones
embarked on a years-long effort to reverse that decision. Eventually, the Wyoming
Supreme Court reviewed his sentence and concluded that a Wyoming district court erred
in ordering the consecutive sentences. The case then went back and forth between the
Wyoming Supreme Court and a Wyoming district court, culminating in a 2004 Wyoming
district court decision which again ordered that Jones’ armed robbery sentences run
consecutive to the sentence imposed upon his parole revocation. Jones did not appeal that
decision.
Instead, after waiting nearly 10 years, he filed this federal habeas petition
challenging a 2003 Wyoming Supreme Court decision—the second remand from that
court, which led to the district court’s 2004 decision. The federal district court denied
Jones’ petition and his COA request.
A state prisoner must obtain a COA to appeal the denial of a § 2241 habeas
petition when the detention complained of arises out of process issued by a state court.
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Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). This court may grant a COA
only if the petitioner shows that reasonable jurists could find the district court’s decision
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); see also
28 U.S.C. § 2253(c)(2). The district court concluded Jones’ claims were untimely and
also procedurally barred based on Jones’ failure to exhaust his claims in state court. It
also found that Jones failed to show that any equitable exception excused these
procedural requirements.
Jones concedes his habeas petition was untimely under the one-year statute of
limitations for filing a federal habeas petition. Pet’r Br. at 13; see also 28 U.S.C.
§ 2244(d)(1)(A); Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006) (holding that
“§ 2244(d)(1)’s one-year limitation period applies to all habeas petitions filed by” state
prisoners, including petitions under § 2241). He argues, however, that his decade-long
delay should be excused because failure to consider his claims would result in a
fundamental miscarriage of justice.
While the untimely filing of a habeas petition may be excused to avoid a
fundamental miscarriage of justice, this equitable exception applies only when “new
evidence shows ‘it is more likely than not that no reasonable juror would have convicted
[the petitioner].’” McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013) (quoting Schlup v.
Delo, 513 U.S. 298, 329(1995)); accord Black v. Workman, 682 F.3d 880, 915 (10th Cir.
2012) (stating that “[t]his exception applies to those who are actually innocent of the
crime of conviction”).
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Jones cannot meet this standard; he does not assert actual innocence of the crimes
for which he was convicted. Instead he asks the court to expand the fundamental-
miscarriage-of-justice exception, arguing he is innocent of his sentence. The district court
rejected this argument, characterizing it as a “rather unique interpretation of ‘innocence’
as a ‘fundamental miscarriage of justice.’” Order, Doc. 10 at 18. We agree.
In a similar context we have said that a “person cannot be actually innocent of a
noncapital sentence.” United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993)
(concluding that petitioner’s claim of actual innocence did not satisfy fundamental-
miscarriage-of-justice exception to procedural bar because he sought only a shorter
sentence and did not claim innocence of the offense); accord United States v. Denny, 694
F.3d 1185, 1190-91 (10th Cir. 2012); see also Sawyer v. Whitley, 505 U.S. 333, 341-42
(1992) (explaining that “[i]n the context of a noncapital case, the concept of ‘actual
innocence’ is easy to grasp”—it means “the State has convicted the wrong person of the
crime”).
Because reasonable jurists could not find debatable or wrong the district
court’s decision rejecting Jones’ argument, we deny Jones’ request for a COA and
dismiss the matter. We need not address the district court’s alternative conclusion
that Jones failed to exhaust and procedurally defaulted on his claims.
Entered for the Court
Nancy L. Moritz
Circuit Judge
4