                                                                                     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.
                       _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
                 _________________________________


       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the sentence he received when his parole was revoked.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         This order is not binding precedent except under the doctrines of law of the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”).



                                              3
       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


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