United States v. Caldwell, No. 21-4026 (10th Cir. 2021)

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Appellate Case: 21-4026 Document: 010110593693 Date Filed: 10/21/2021 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHAD EUGENE CALDWELL, Page: 1 FILED United States Court of Appeals Tenth Circuit October 21, 2021 Christopher M. Wolpert Clerk of Court No. 21-4026 (D.C. Nos. 2:16-CV-00607-DAK & 2:03-CR-00325-DAK-1 & 2:03-CR-00696-DAK-1) (D. Utah) Defendant - Appellant. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________ Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________ Chad Caldwell seeks a certificate of appealability (COA) to appeal an order denying his 28 U.S.C. § 2255 motion as untimely. Because reasonable jurists would not find the district court’s procedural ruling debatable, we deny Caldwell’s request and dismiss this matter. Caldwell’s § 2255 motion stems from his federal convictions for armed bank robbery and an associated firearm offense. When pleading guilty to those offenses in 2003, Caldwell stipulated that he would be sentenced as a career offender because his criminal history included two crimes of violence. See U.S.S.G. §§ 4B1.1(a), 4B1.2(a). * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-4026 Document: 010110593693 Date Filed: 10/21/2021 Page: 2 This stipulation increased Caldwell’s offense level, producing a higher sentencing range under the then-mandatory United States Sentencing Guidelines. Caldwell ultimately received a 272-month prison term and did not appeal his convictions or sentence. Over a decade later, Caldwell moved to vacate his sentence under § 2255. Relevant here, Caldwell’s motion asserted that one of the prior convictions that supported his career-offender status—a California burglary offense—no longer qualified as a “crime of violence” under U.S.S.G. § 4B1.2(a)(2) after the Supreme Court’s decision in Johnson v. United States, which invalidated an identically worded statutory definition as unconstitutionally vague. 576 U.S. 591, 597, 606 (2015). The district court dismissed the motion as untimely, alternatively concluded that any error in Caldwell’s sentence was harmless, and declined to issue a COA. Caldwell now seeks a COA from this court so he can appeal the district court’s order dismissing his motion. See 28 U.S.C. § 2253(c)(1)(B). Because the district court dismissed Caldwell’s motion on procedural grounds, we can grant that request only if Caldwell shows that reasonable jurists could debate both the district court’s procedural ruling and the validity of his constitutional claim. Slack v. McDaniel, 529 U.S. 473, 484 (2000). As explained below, Caldwell has not made this showing as to the district court’s procedural ruling. The district court based its procedural ruling on the timeliness of Caldwell’s motion. Specifically, it determined that Caldwell filed the motion more than one year after the judgment became final in his underlying criminal case. See § 2255(f)(1). As in the district court, Caldwell argues that his motion was timely because he filed it within 2 Appellate Case: 21-4026 Document: 010110593693 Date Filed: 10/21/2021 Page: 3 one year of Johnson, which he says announced a new constitutional rule that applies retroactively on collateral review. See § 2255(f)(3); Welch v. United States, 136 S. Ct. 1257, 1264–65 (2016) (holding that Johnson applies retroactively). But we have held that Johnson did not create a new constitutional rule as applied to the mandatory Guidelines. United States v. Pullen, 913 F.3d 1270, 1283 (10th Cir. 2019). And while other circuits may have taken a different view, the district court, as Caldwell recognizes, “was bound by this court’s contrary holding[].” Aplt. Br. 6. Thus, reasonable jurists could not debate the district court’s ruling that Caldwell’s motion was untimely because he filed it more than one year after his conviction became final. Nor could they debate whether Caldwell can overcome this untimeliness by proving actual innocence. To invoke the actual-innocence exception to the one-year filing deadline, Caldwell must show based on new evidence that “it is more likely than not that no reasonable juror would have convicted him.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (emphasis added) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). But Caldwell does not argue that he is innocent of his underlying crimes; he argues that he is innocent of “being a career offender” under the Guidelines. That argument affects Caldwell’s sentence, and in this circuit, “[a] person cannot be actually innocent of a noncapital sentence.”1 United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993). Caldwell suggests that an exception to this rule applies when a person is “innocent of the 1 For this reason, it makes no difference whether, as Caldwell argues, “a change in the law can be the basis for a factual[-]innocence claim.” Aplt. Br. 11. Even if that’s true, the change in law asserted here impacts Caldwell’s sentence and thus cannot establish actual innocence. See Richards, 5 F.3d at 1371. 3 Appellate Case: 21-4026 Document: 010110593693 Date Filed: 10/21/2021 Page: 4 fact—i.e., the prior conviction—necessary to sentence [that person] as a[] habitual offender.” Selsor v. Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994). Yet even if such an exception exists, it would not apply here: Caldwell contends that his California burglary offense no longer qualifies as a “crime of violence” under the Guidelines, not that he did not commit that offense in the first place. Caldwell cites no authority from this court suggesting that a sentencing argument of that kind constitutes actual innocence.2 In sum, Caldwell fails to show that reasonable jurists could debate the district court’s procedural ruling that his § 2255 motion is untimely and does not assert an actualinnocence claim. We therefore decline Caldwell’s COA request and dismiss this matter. See Slack, 529 U.S. at 484. Entered for the Court Nancy L. Moritz Circuit Judge 2 Contrary to Caldwell’s view, Richards itself did not “acknowledge[] that ‘one might be actually innocent of a sentence in some circumstances.’” Aplt. Br. 8 (quoting Richards, 5 F.3d at 1371). The language Caldwell quotes comes from a parenthetical attached to a “But see” cite that notes the Eighth Circuit’s opposing view. See Richards, 5 F.3d at 1371 (citing Jones v. Arkansas, 929 F.2d 375, 381 & n.16 (8th Cir. 1991)). But Richards rejected that view and instead held that “[a] person cannot be actually innocent of a noncapital sentence.” Id. 4

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