                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          December 16, 2014
                                   TENTH CIRCUIT
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 14-8051
                                                             (D. Wyoming)
 CHRISTOPHER M. TENDERHOLT,                       (D.C. Nos. 2:14-CV-00068-NDE and
                                                        2:04-CR-00059-CAB-1)
        Defendant - Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



       Defendant Christopher Tenderholt, acting pro se, filed a motion for relief under

28 U.S.C. § 2255 in the United States District Court for the District of Wyoming. His

single claim (and the only claim raised in this court) was that he was improperly

sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because

his Montana burglary convictions were not convictions of violent felonies. Although we

rejected that contention on his direct appeal, see United States v. Tenderholt, 149 F.

App’x 805, 810 (10th Cir. 2005), he relies on the recent Supreme Court decision in

Descamps v. United States, 133 S. Ct. 2276 (2013), as requiring a different result. The
district court rejected Defendant’s § 2255 motion as untimely, and Defendant now asks

us to issue a certificate of appealability (COA). See 28 U.S.C. § 2253(c) (requiring a

COA to pursue appeal). We deny a COA and dismiss this appeal.

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the claim was either

“debatable or wrong.” Id. If habeas relief was denied on procedural grounds, the COA

applicant must also show “that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “Where a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a reasonable

jurist could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

       Defendant filed his § 2255 motion some seven years after his conviction became

final, well after the expiration of the one-year limitations period set forth in 28 U.S.C.

§ 2255(f). He raises two arguments, however, for extending that limitations period. Both

derive from his contention that Descamps established a new right for defendants. First,

he relies on § 2255(f)(3), which restarts the one-year limitations period from “the date on
                                               2
which the right asserted was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to cases

on collateral review.” 28 U.S.C. §2255(f)(3). Second, he contends that he could not

have raised his present claim before Descamps and thus can invoke the equitable-tolling

doctrine, which protects a § 2255 movant who can establish “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (footnote and internal

quotation marks omitted).

       Both arguments fail because they are based on a false premise. Descamps did not

create a new right, nor was it even, as Defendant asserts, a “reinterpretation of precedent

which corrected mistakes that federal circuits had been making for years,” Aplt. Br. at 3.

There was no impediment to Defendant’s raising his present arguments before that

decision was handed down. The purpose of Descamps was not to make new law but to

correct the Ninth Circuit’s misunderstanding of prior opinions. The Court began its

discussion of the issue before it by stating that its “caselaw . . . all but resolves this case.”

Descamps, 133 S. Ct. at 2283; see United States v. Trent, 767 F.3d 1046, 1055 (10th Cir.

2014) (the Descamps Court “did not . . . suggest in any way that it was retreating from its

application of [the modified categorical] approach in previous cases”).

       No reasonable jurist could conclude either that the district court erred in denying

Defendant’s § 2255 motion or that Defendant should be allowed to proceed further. See

Slack, 529 U.S. at 484.
                                                3
We DENY the application for a COA and DISMISS the appeal.

                              ENTERED FOR THE COURT


                              Harris L Hartz
                              Circuit Judge




                                 4
