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
No. 95-8071
Penitentiary Warden, Wyoming
(D.C.Wyoming)
Department of Corrections; WYOMING
(D.C. No. 95-CV-175)
ATTORNEY GENERAL,
Appellees.
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.
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WITHDRAWN.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.
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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JAMES FRANKLIN BROWN,
Appellant,
v.
No. 95-8071
JAMES FERGUSON, individually, (D.C.Wyoming)
and in his official capacity as State (D.C. No. 95-CV-175)
Penitentiary Warden, Wyoming
Department of Corrections; WYOMING
ATTORNEY GENERAL,
Appellees.
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.
This order and judgment is not binding precedent, except under the doctrines of law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.
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
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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.”
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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
1
Brown 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).
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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
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