                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS                   June 13, 2011
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 10-3319
                                              (D.C. Nos. 2:10-CV-02414-CM and
v.
                                                    2:06-CR-20024-CM-1)
                                                          (D. Kansas)
SANDTAS METCALF,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.




      Petitioner, Sandtas Metcalf, seeks a certificate of appealability (“COA”) so

he can appeal the district court’s dismissal of the motion to vacate, set aside, or

correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255

motion unless he first obtains a COA). In 2007, Metcalf pleaded guilty to

possession with intent to distribute five grams or more of crack cocaine, in

violation of 18 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The written plea agreement

contained a waiver of Metcalf’s right to directly or collaterally challenge his

prosecution, conviction, or sentence. Metcalf was sentenced as a career offender
under USSG § 4B1.1 based on three prior felony convictions—two involving

controlled substances and one based on a failure-to-report-type escape. See

USSG § 4B1.1 (providing a defendant is a career offender if he “has at least two

prior felony convictions of either a crime of violence or a controlled substance

offense”).

      The instant § 2255 motion was filed in the district court on July 22, 2010.

Relying on Chambers v. United States, Metcalf argued he was erroneously

sentenced as a career offender because his felony conviction for escape does not

constitute a crime of violence. 555 U.S. 122 (2009) (holding that failure-to-report

escape crimes are not crimes of violence). The Government argued, alternatively,

that: (1) Metcalf’s § 2255 motion was barred by the waiver, (2) Chambers does

not apply retroactively to cases on collateral review, and (3) Metcalf’s § 2255

motion was untimely because it was filed more than one year after his conviction

became final. See 28 U.S.C. § 2255(f) (setting forth a one-year statute of

limitations for § 2255 motions). In its order of dismissal, the district court

rejected the Government’s argument that Chambers does not apply retroactively.

See United States v. Shipp, 589 F.3d 1084, 1089-90 (10th Cir. 2009) (holding

Chambers involved a new substantive rule and applying that rule retroactively to

an appeal involving the Armed Career Criminal Act); see also United States v.

Charles, 579 F.3d 1060, 1068-69 (10th Cir. 2009) (applying the reasoning in

Chambers to a case involving USSG § 4B1.2(a)(2)). Using the date on which the

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Supreme Court decided Chambers, the district court nonetheless concluded

Metcalf’s § 2255 motion was untimely because it was not filed within the one-

year limitations period. The court further concluded Metcalf failed to

demonstrate any entitlement to equitable tolling of the one-year period and,

accordingly, dismissed his § 2255 motion. 1 In his appellate brief, Metcalf does

not address the district court’s procedural ruling and does not present any

argument that the district court miscalculated the one-year period or erroneously

resolved the equitable tolling question.

      To be entitled to a COA, Metcalf must show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). Our review of the record

demonstrates that the district court’s dismissal of Metcalf’s § 2255 motion as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, we deny Metcalf’s request for a COA and




      1
        The district court also concluded it was appropriate to enforce the waiver
of collateral attack rights contained in Metcalf’s plea agreement.

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dismiss this appeal. Metcalf’s request to proceed in forma pauperis on appeal is

granted.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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