                                                                                 FILED
                                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                       Tenth Circuit

                              FOR THE TENTH CIRCUIT                         April 2, 2020
                          _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,
                                                             No. 20-6027
    v.                                              (D.C. Nos. 5:19-CV-00982-R &
                                                         5:15-CR-00174-R-1)
    HADORI KARMEN CHANTEL                                    (W.D. Okla.)
    WILLIAMS,

         Defendant - Appellant.
                        _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges.**
                 _________________________________

         Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to

28 U.S.C. § 2255 in the Western District of Oklahoma alleging ineffective assistance

of counsel and challenging his armed career criminal sentence. The district court

dismissed the action as untimely and denied Defendant a certificate of appealability.

Now, Defendant requests a certificate of appealability from this Court. Exercising



*
 This order and judgment is not binding precedent, except under the doctrines of law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.
**
   After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
jurisdiction under 28 U.S.C. § 2253(a), we deny Defendant a certificate of appealability

and dismiss Defendant’s appeal.

       If a district court denies a motion to vacate on procedural grounds without

reaching the defendant’s underlying constitutional claim, a certificate of appealability

will issue when the defendant shows “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right” and “jurists of

reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000); see also United States v. Crooks,

769 F. App’x 569, 571 (10th Cir. 2019) (unpublished). The defendant must satisfy

both parts of this threshold inquiry before we can hear the merits of the appeal. Gibson

v. Klinger, 232 F.3d 799, 802 (10th Cir. 2000).

       In this case, the district court dismissed Defendant’s motion to vacate as

untimely.    After carefully reviewing Defendant’s request for a certificate of

appealability, the district court’s order of dismissal, and the record on appeal, we agree

that Defendant’s claims are barred by 28 U.S.C. § 2255’s one-year statute of

limitations. Defendant attempts to escape this conclusion by arguing he is entitled to

equitable tolling because he is actually innocent and failure to address his claims would

result in a miscarriage of justice.

       While § 2255’s one-year limitation period is subject to equitable tolling in

certain circumstances, including when an inmate is actually innocent, Defendant fails

to show he is actually innocent of being a felon in possession of a firearm. Rather,

Defendant argues he should not have been sentenced as an armed career criminal.

                                            2
Relying on United States v. Hamilton, 889 F.3d 688 (10th Cir. 2018), Defendant argues

his prior state convictions for second degree burglary and attempted first degree

burglary should not have been considered crimes of violence under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We have held, however, that “[p]ossible

misuse of a prior conviction as a predicate offense under the sentencing guidelines does

not demonstrate actual innocence.” Sandlain v. English, 714 F. App’x 827, 831 (10th

Cir. 2017) (unpublished). Thus, Defendant’s attempt to circumvent the one-year

limitation period through a showing of actual innocence fails.

        Moreover, as the district court notes in its order of dismissal, equitable tolling

applies when “an inmate diligently pursues his claims and demonstrates that the failure

to timely file was caused by extraordinary circumstances beyond his control.” United

States v. Gabaldon, 522 F.3d 1121, 1124 (citing Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000)).      In this case, Defendant has not shown any extraordinary

circumstance caused his failure to timely file. Although he relies on United States v.

Hamilton to argue he only recently discovered his prior state convictions do not qualify

as crimes of violence under the ACCA, Hamilton was decided on May 4, 2018. 889

F.3d 688.     Defendant did not file his motion to vacate until October 26, 2019.

Defendant provides no explanation as to why he delayed in filing his motion to vacate

until more than one year after this Court issued its decision in Hamilton. He certainly

has not shown he pursued his claims diligently, or that his failure to timely file was

caused by extraordinary circumstances beyond his control. See Gabaldon, 522 F.3d at

1124.

                                            3
      Accordingly, for substantially the same reasons set forth in the district court’s

order, we hold that no reasonable jurist would find it “debatable whether the district

court was correct in its procedural ruling.” Slack, 529 U.S. at 478. Therefore, we

GRANT Defendant’s motion to proceed in forma pauperis, DENY Defendant’s request

for a certificate of appealability, and DISMISS this appeal.




                                           Entered for the Court


                                           Bobby R. Baldock
                                           Circuit Judge




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