Black v. Fhure

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 22, 2025
• Docket: 25-1126
• Status: Unpublished

Opinion

Appellate Case: 25-1126 Document: 21-1 Date Filed: 10/22/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 22, 2025 _________________________________ Christopher M. Wolpert Clerk of Court NATHAN DAVID BLACK,

Petitioner - Appellant,

v. No. 25-1126 (D.C. No. 1:24-CV-03574-LTB-RTG) FHURE, Warden San Carlos Correctional (D. Colo.) Facility; THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before HARTZ, EID, and ROSSMAN, Circuit Judges. _________________________________

Nathan Black, proceeding pro se, 1 requests a certificate of appealability (COA) to

appeal from the district court’s denial and dismissal of his 28 U.S.C. § 2254 habeas

application as procedurally defaulted. We deny a COA and dismiss this matter.

Mr. Black was convicted in the district court for Jefferson County, Colorado, of

stalking (serious emotional distress), violating bail bond conditions, and violating a civil

protection order. Citing his rights to equal protection and due process, he made two

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Black proceeds pro se, we liberally construe his filings, but we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Appellate Case: 25-1126 Document: 21-1 Date Filed: 10/22/2025 Page: 2

claims in his § 2254 application. First, he asserted that state law did not authorize the

prosecutor to charge him for stalking and violating bail bond conditions, but instead it

allowed only a choice between charges for violating a civil protection order or

committing contempt of court. Second, he alleged the state district court lacked

jurisdiction to convict him on charges arising out of the violation of a protective order

issued by a different court (the county court). Mr. Black sought vacatur of his

convictions and $800 trillion in damages.

The magistrate judge directed the State to file a pre-answer response addressing

timeliness and exhaustion of state-court remedies. The State asserted that Mr. Black had

not exhausted his state remedies, resulting in a procedural default. The magistrate judge

agreed. Determining that Mr. Black had not shown cause and prejudice or a fundamental

miscarriage of justice to excuse the procedural default, he recommended that the district

court dismiss the application. Mr. Black objected. Reviewing the record de novo, the

district court agreed with and adopted the recommendation, overruled Mr. Black’s

objections, denied and dismissed the § 2254 application, and denied a COA.

To appeal from the district court’s decision, Mr. Black must obtain a COA,

28 U.S.C. § 2253(c)(1)(A), meaning that he must make “a substantial showing of the

denial of a constitutional right,” § 2253(c)(2). Because the district court decided the

§ 2254 application on a procedural ground, for a COA Mr. Black must demonstrate that

reasonable jurists “would find it debatable” both “whether the petition states a valid claim

of the denial of a constitutional right” and “whether the district court was correct in its

2 Appellate Case: 25-1126 Document: 21-1 Date Filed: 10/22/2025 Page: 3

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, we begin and

end with the district court’s procedural ruling.

Mr. Black does not contest the district court’s determination that he failed to

exhaust his state remedies. Rather, he focuses on whether the district court should have

excused the default—specifically, whether he established a fundamental miscarriage of

justice. He reiterates his position that state law did not authorize prosecution for anything

except violation of a civil protection order or contempt of court and only the county court

that issued the protective order may try the charges. He continues, “As [a] result, the

charges are illegal under the circumstances, thereby no facts as to the charges may be

taken into account. [His] due process and equal protection rights are violated and has

resulted in the conviction; of which [he is] actually innocent.” Aplt. Combined Opening

Br./Appl. for COA at 3. Then, without any supporting citation, he states, “Under the

circumstances, legal innocence does satisfy the fundamental miscarriage of justice.” Id.

But no reasonable jurist would debate whether Mr. Black demonstrated a

fundamental miscarriage of justice. The fundamental-miscarriage exception requires a

prisoner to make “a credible showing of actual innocence.” McQuiggin v. Perkins,

569 U.S. 383, 392 (2013). As the district court recognized, “in this regard ‘actual

innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998); see also Herrera v. Collins, 506 U.S. 390, 404 (1993)

(“The fundamental miscarriage of justice exception is available only where the prisoner

supplements his constitutional claim with a colorable showing of factual innocence.”

(emphasis and internal quotation marks omitted)). Contradicting Mr. Black’s contention

3 Appellate Case: 25-1126 Document: 21-1 Date Filed: 10/22/2025 Page: 4

that his claims should satisfy the fundamental-miscarriage exception, we have rejected

the premise that “the factual-innocence gateway is available when one has been convicted

by the wrong jurisdiction.” Pacheco v. El Habti, 62 F.4th 1233, 1242 (10th Cir. 2023).

We grant Mr. Black’s motion to proceed without prepayment of fees and costs.

We deny his “Motion for habeas appeal P.R. bond.” We deny a COA and dismiss this

matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk