UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

________________ _________________ ORDER DENYING CERTIFIC ATE 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 sent ence. The district court dismissed the action as untimely and denied Defendant a certificate of appealability. Now, Defendant requests a cer tificate of appealability fro m this Court. Exercising

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, a nd collateral estoppel. It ma y 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 appella te 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. FILED United States Court of Appeals Tenth Circuit 

### April 2, 2020 Christopher M. Wolpert Clerk of Court2 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 pr ocedural grounds without reaching the defendant’s underlyi ng constitutional claim, a ce rtificate of appealability will issue when the defendant shows “jurists of reason w ould 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 wh ether 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v. McDaniel , 529 U.S. 473, 478 (2000); see also United States v. Crooks , 769 F. App’x 569, 5 71 (10th Cir. 2019) (unpublished).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 dism issed Defendant’s motion to vacate as untimely. After carefully reviewing Defendant’s reque st for a certificate of appealability, the district cour t’s order of dismissal, and th e 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 inno cent and failure to address his claims would result in a mi scarriage of justice. While § 2255’s one-year limitation period is subject to equitable tolling in certain circumstances, including when an in mate is actually innoc ent, Defendant fails to show he is actually innocent of being a felon in possession of a firearm. Rather, Defendant argues he should no t have been sentenced as an armed career criminal.3 Relying on United States v. Hamilton , 889 F.3d 688 (10th Cir. 2018), Defendant argues his prior state convictions for second degree burglary a nd 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, howev er, 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). T hus, Defendant’s attempt to circumvent the one-year limitation period through a showi ng of actual innocence fails. Moreover, as the district court notes in its order of dismissa l, equitable tolling applies when “an inmate diligen tly pursues his claims and de monstrates 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, De fendant has not show n any extraordinary circumstance caused his fa ilure to timely file. Although he relies on United States v. Hamilton to argue he only recently discovered hi s prior state convic tions do not qualify as crimes of violence under the ACCA, Hamilton was decided on Ma y 4, 2018. 889 F.3d 688. Defendant did not file his motion to vacate until October 26, 2019. Defendant provides no explanation as to w hy he delayed in filing his motion to vacate until more than one year after th is Court issued its decision in Hamilton . He certainly has not shown he pursued his claims diligen tly, or that his failure to timely file was caused by extraordinary circumst ances beyond his control. See Gabaldon , 522 F.3d at 1124.4 Accordingly, for substantially the same reasons set fort h in the district court’s order, we hold that no reasona ble jurist would find it “debat able 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 DISM ISS this appeal.

Entered for the Court
Bobby R. Baldock Circuit Judge