We have concluded that such claims are not reasonably debatable. See Jones v. Martin, 622 Fed.Appx. 738, 739- 40 (10th Cir. 2015) (unpublished). This claim fares no better under more recent decisions.
“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.” Jones v. Martin, 622 Fed.Appx. 738, 739 (10th Cir. 2015) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (alterations and internal quotation marks omitted)). Garcia has not pointed to new evidence to satisfy this standard.
In any event, defendant has not shown that the actual innocence exception can apply where he seeks “only a shorter sentence and d[oes] not claim innocence of the offense.” United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (“person cannot be actually innocent of a noncapital sentence”); see Jones v. Martin, 622 Fed.Appx. 738, 739-40 (10th Cir. 2015) (reasonable jurists could not find debatable or wrong district court's conclusion that the fundamental-miscarriage-of-justice exception does not apply to defendant's claim that “he is innocent of his sentence”) (emphasis in original); United States v. Glover, 156 F.3d 1244, 1998 WL 476779, at *2 (10th Cir. Aug. 11, 1998) (claim that defendant in noncapital case should have received lesser sentence does not constitute claim that he is actually innocent or did not commit crime).
In Jones v. Martin, the Tenth Circuit held that the equitable exception for a "fundamental miscarriage of justice" applies only when "new evidence shows 'it is more likely than not that no reasonable juror would have convicted [the petitioner].'" Jones v. Martin, 622 F. App'x 738, 739 (10th Cir. 2015) (unpublished) (citations omitted). The Tenth Circuit found that the petitioner could not meet this standard because he did not "assert actual innocence of the crimes for which he was convicted" and instead asked the court to expand the exception, "arguing he is innocent of his sentence."
But even to the extent this statement could be read as invoking an equitable exception to the statute of limitations bar under the fundamental miscarriage of justice theory, it would fail. That is, this exception allows a petitioner to bypass the AEDPA's statute of limitations only upon a credible showing of actual innocence. See United States v. Springer, 875 F.3d 968, 976 (10th Cir. 2017) (explaining the Supreme Court's decision in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) as holding that the "'fundamental miscarriage of justice exception[] is grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons'" (citing McQuiggin, 133 S. Ct. at 1931)); see also Jones v. Martin, 622 F. App'x 738, 739 (10th Cir. 2015) ("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.'" (citation omitted and brackets omitted)).
Here, defendant asserts that he should have received a lower sentence. In similar contexts, the Tenth Circuit has held that a defendant cannot be actually innocent of a noncapital sentence.See Jones v. Martin, 622 F. App'x 738, 740 (10th Cir. 2015); Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2012); see also United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (to satisfy "fundamental miscarriage of justice" exception, defendant must show innocence of offense for which he was convicted, not innocence of higher sentence). In addition, the actual innocence exception does not apply because Mr. Carter does not assert that he is factually innocent of a certain base offense level or an enhancement.