UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ NATHAN E. JONES, Petitioner - Appellant,

v. TODD MARTIN, Warden, Wyoming Honor Conservation Camp, Wyoming Department of Corrections, Respondent - Appellee. No. 15-8022 (D.C. No. 2:14-CV-00209-ABJ) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , TYMKOVICH , and MORITZ , Circuit Judges.

________________ _________________ Nathan Jones, a Wyoming state prisoner pr oceeding pro se, seeks a certificate of appealability (COA) to appeal the district c ourt’s denial of his federal habeas petition. Jones is currently serving time for particip ating 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 expirati on 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 wa s revoked. Jones challenges the execution of his sentences under 28 U.S.C. § 2241.

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 12, 2015
Elisabeth A. Shumaker Clerk of Court2 In 1975, Jones was convicted of first-degree felony murder and sentenced to life in prison. But after serving 14 years he was re leased on parole based on his good behavior. After four years on parole, Jones was convicte d of aiding and abetting armed robbery and conspiracy to commit armed robbery. At se ntencing, Jones asked the court to run his sentences for armed robbery concurrent with th e parole-revocation sentence that was sure to follow. The sentencing judge declined, le aving 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 penite ntiary treated the sentences as consecutive and Jones embarked on a years-long effort to revers e that decision. Eventually, the Wyoming Supreme Court reviewed his sentence and conc luded that a Wyoming district court erred in ordering the consecutive sentences. The cas e then went back and forth between the Wyoming Supreme Court and a Wyoming district court, cu lminating 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 aris es out of process issued by a state court.3 Montez v. McKinna , 208 F.3d 862, 867 (10th Cir. 2000). This court may grant a COA only if the petitioner shows that reasonable juri sts could find the dist rict 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 co ncluded Jones’ claims were untimely and also procedurally barred based on Jones’ failure to exhaust hi s claims in state court. It also found that Jones failed to show th at 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 limitatio n period applies to all habe as 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 ju stice, this equitable excep tion applies only when “new evidence shows ‘it is more likel y 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”).4 Jones cannot meet this standard; he does no t assert actual innocence of the crimes for which he was convicted. Instead he as ks the court to expand the fundamentalmiscarriage-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 justi ce.’” 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, 13 71 (10th Cir. 1993) (concluding that petitioner’s claim of actu al innocence did not satisfy fundamentalmiscarriage-of-justice exception to procedur al 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 th e wrong person of the crime”). Because reasonable jurists could not find debatable or wrong the district court’s decision rejecting J ones’ argument, we deny Jone s’ request for a COA and dismiss the matter. We need not address th e district court’s alternative conclusion that Jones failed to exhaust and pr ocedurally defaulted on his claims.

Entered for the Court
Nancy L. Moritz Circuit Judge