UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

ORDER DENYING CERTIFIC ATE OF APPEALABILITY

Before HARTZ , McKAY , and MATHESON , Circuit Judges.

Defendant Christopher Tenderholt, acti ng 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 conv ictions 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 requi ring a different result. The FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 district court rejected Defendant’s § 2255 motion as untimely, a nd 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 ha ve 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) (interna l 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 di strict court erred in dismissing the petition or that the petitioner should be a llowed to proceed further.” Id. Defendant filed his § 2255 motion some seven years after his conviction became final, well after the expiration of the one-ye ar limitations period se t 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 on3 which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court a nd made retroactively applicable to cases

on collateral review.” 28 U.S. C. §2255(f)(3). Second, he c ontends 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 establis h “(1) that he has been pursuing his rights diligently, a nd (2) that some extraordinar y 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 fe deral circuits had been making for years,” Aplt. Br. at 3. There was no impediment to Defendant’s ra ising 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 bu t 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 a ny way that it was re treating from its application of [the modified categoric al] 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 484.4 We DENY the application for a COA and DISMISS the appeal.

ENTERED FOR THE COURT

Harris L Hartz Circuit Judge