UNITED STATES COURT OF APPEALS

Filed 5/31/96 TENTH CIRCUIT

JAMES FRANKLIN BROWN,

Appellant, 

v.

JAMES FERGUSON, individually,

and in his official capacity as State

Penitentiary Warden, Wyoming

Department of Corrections; WYOMING

ATTORNEY GENERAL,

Appellees. 

No. 95-8071

(D.C.Wyoming)

(D.C. No. 95-CV-175)

ORDER ON REHEARING

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges. 

The petitioner James Brown has filed a petition for rehearing with a suggestion for

rehearing in banc. After due consideration of the arguments set out in the petition, the

panel has determined that rehearing is not necessary. Accordingly, the petition for

rehearing is hereby denied. Furthermore, as no judge who is in regular, active service in

this circuit has called for a poll, the suggestion for rehearing in banc is likewise denied.
2

Nevertheless, the panel has determined to withdraw the Order and Judgment

originally filed on April 29, 1996. Upon review, the panel has concluded that Brown’s

claims are procedurally barred and that his theory of actual innocence is unavailable

under binding Tenth Circuit precedent. A new Order and Judgement reflecting the

panel’s decision is filed with this Order.

It is hereby ordered that the petition for rehearing is DENIED, the suggestion for

rehearing in banc is DENIED, and the Order and Judgment filed on April 29, 1996, is

WITHDRAWN. The Order and Judgment accompanying this Order shall be filed by the

Clerk of the Court.
 

*This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES FRANKLIN BROWN,

Appellant, 

v.

JAMES FERGUSON, individually,

and in his official capacity as State

Penitentiary Warden, Wyoming

Department of Corrections; WYOMING

ATTORNEY GENERAL,

Appellees. 

No. 95-8071

(D.C.Wyoming)

(D.C. No. 95-CV-175)

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined that oral

argument would not materially assist the determination of this appeal. See Fed. R. App.

P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral

argument.
2

James Brown, a state inmate and pro se litigant, appeals the denial of habeas relief. 

We review the district court’s order de novo and affirm.

Brown was convicted in the State of Wyoming of five counts of second degree

sexual assault and two counts of indecent liberties with a minor. Brown was sentenced to

life on each of the five counts of sexual assault and a minimum term of nine years and a

maximum term of ten years for each count of indecent liberties. Three of the life

sentences were to be served consecutively.

Brown appealed to the Wyoming Supreme Court asserting five errors: (1)

improper admission of Rule 404(b) conduct; (2) variance between the bill of particulars

and the indictment; (3) instructional error; (4) insufficient evidence; and (5) cumulative

error. The Wyoming Supreme Court reversed one of his convictions for sexual assault

but affirmed the remaining four counts of sexual assault and the two counts of indecent

liberties with a minor.

After Brown unsuccessfully pursued post conviction relief in the Wyoming courts,

he filed a federal habeas corpus petition. In that petition, Brown asserted the same issues

that he had asserted on direct appeal and also raised eight additional issues that he had

failed to raise on direct appeal. Included among those eight issues was a claim that he

had received an excessive, illegal, and unconstitutional sentence. The district court

dismissed the petition, concluding as follows: (1) Brown had failed to show any federally

protected right was violated concerning the issues appealed to the Wyoming Supreme
3

Court; and (2) the new claims, including the claim that his sentence was excessive and

illegal, were procedurally barred because Brown had not raised them on direct appeal and

had not demonstrated “cause and prejudice” or a “fundamental miscarriage of justice.” 

This court affirmed on appeal for substantially those reasons identified by the district

court. Brown v. Shillinger, No. 93-8109, 1994 WL 145993 (10th Cir. 1994).

After filing several additional state petitions, Brown filed the instant petition. In

the current petition, Brown focuses on the claim that his sentence was illegal, excessive,

and in violation of the Equal Protection and Due Process Clauses. According to Brown,

the sentencing court erred in sentencing him to straight life terms rather than to a

maximum and minimum terms as is required by Wyoming law. See Wyo. Code Ann. § 7-

13-201 (1995). Because he was purportedly not sentenced in conformity with Wyoming

law, Brown claimed that he was “actually innocent” of the life sentences and that his

claims were not, therefore, procedurally barred. The district court dismissed the current

petition as legally frivolous, stating that Brown was procedurally barred from raising the

sentencing/constitutional claims because he had not raised them on direct appeal. The

district court went on to address Brown’s claim that he was not procedurally barred

because he was actually innocent of the sentence imposed. According to the district

court, even if it assumed that Brown was sentenced in error, that error was “not the type

of error that amounts to ‘actual innocence’ of the sentence, and it is not constitutionally

actionable.”
1Brown repeatedly argues that Wyoming courts have misinterpreted Wyoming law

in holding that the claims he wishes to assert here are procedurally barred. In response,

we simply note that “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).

4

We conclude that the district court did not err when it dismissed Brown’s petition. 

Brown failed to raise, in his direct appeal, the issue that his sentence was not in

conformity with Wyoming law and in violation of the Due Process and Equal Protection

Clauses. See Brown v. Shillinger, No. 93-8109, 1994 WL 145993, at *2 (10th Cir. 1994)

(holding that Brown had waived, in an earlier habeas petition, the exact issue presented

here because he failed to raise the issue on direct appeal to the Wyoming Supreme Court);

Brown v. State, 894 P.2d 597, 598 (Wyo. 1995) (noting that Brown’s claim of

illegal/unconstitutional sentence is procedurally barred under Wyoming law).1

Accordingly, Brown is procedurally barred from raising the issue unless he can

demonstrate either “cause and prejudice” or a “fundamental miscarriage of justice.” See

Coleman v. Thompson, 501 U.S. 722, 750 (1991). This Brown cannot do.

Brown attempts to meet his burden under Coleman by asserting that he need not

show prejudice because he is actually innocent of the life sentences. Under Tenth Circuit

precedent, however, “[a] person cannot be actually innocent of a noncaptal sentence.”

United States v. Richardson, 5 F.3d 1369, 1371 (10th Cir. 1993); see also Sones v.

Hargett, 61 F.2d 410, 419 n.19 (5th Cir. 1995) (noting circuit split on question of whether

actual innocence standard can be extended to non-capital sentencing procedures and
5

noting that no such claim is available in the Tenth Circuit.). Because the sentences at

issue are not capital in nature, a claim that Brown is actually innocent of the sentences

does not lie. Because Brown’s asserted avenue for overcoming the procedural bar is

unavailing, we hold that the district court did not err in dismissing his petition.

The judgment of the United States District Court for the District of Wyoming is

AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge