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-CV-00068-NDE and 

2:04-CR-00059-CAB-1)

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 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 16, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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. 
4 

We DENY the application for a COA and DISMISS the appeal. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge