United States v. Metcalf ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 13, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3319
(D.C. Nos. 2:10-CV-02414-CM and
v.
2:06-CR-20024-CM-1)
(D. Kansas)
SANDTAS METCALF,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.
Petitioner, Sandtas Metcalf, seeks a certificate of appealability (“COA”) so
he can appeal the district court’s dismissal of the motion to vacate, set aside, or
correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255
motion unless he first obtains a COA). In 2007, Metcalf pleaded guilty to
possession with intent to distribute five grams or more of crack cocaine, in
violation of 18 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). The written plea agreement
contained a waiver of Metcalf’s right to directly or collaterally challenge his
prosecution, conviction, or sentence. Metcalf was sentenced as a career offender
under USSG § 4B1.1 based on three prior felony convictions—two involving
controlled substances and one based on a failure-to-report-type escape. See
USSG § 4B1.1 (providing a defendant is a career offender if he “has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense”).
The instant § 2255 motion was filed in the district court on July 22, 2010.
Relying on Chambers v. United States, Metcalf argued he was erroneously
sentenced as a career offender because his felony conviction for escape does not
constitute a crime of violence. 555 U.S. 122 (2009) (holding that failure-to-report
escape crimes are not crimes of violence). The Government argued, alternatively,
that: (1) Metcalf’s § 2255 motion was barred by the waiver, (2) Chambers does
not apply retroactively to cases on collateral review, and (3) Metcalf’s § 2255
motion was untimely because it was filed more than one year after his conviction
became final. See 28 U.S.C. § 2255(f) (setting forth a one-year statute of
limitations for § 2255 motions). In its order of dismissal, the district court
rejected the Government’s argument that Chambers does not apply retroactively.
See United States v. Shipp, 589 F.3d 1084, 1089-90 (10th Cir. 2009) (holding
Chambers involved a new substantive rule and applying that rule retroactively to
an appeal involving the Armed Career Criminal Act); see also United States v.
Charles, 579 F.3d 1060, 1068-69 (10th Cir. 2009) (applying the reasoning in
Chambers to a case involving USSG § 4B1.2(a)(2)). Using the date on which the
-2-
Supreme Court decided Chambers, the district court nonetheless concluded
Metcalf’s § 2255 motion was untimely because it was not filed within the one-
year limitations period. The court further concluded Metcalf failed to
demonstrate any entitlement to equitable tolling of the one-year period and,
accordingly, dismissed his § 2255 motion. 1 In his appellate brief, Metcalf does
not address the district court’s procedural ruling and does not present any
argument that the district court miscalculated the one-year period or erroneously
resolved the equitable tolling question.
To be entitled to a COA, Metcalf must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district
court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court’s procedural ruling was correct). Our review of the record
demonstrates that the district court’s dismissal of Metcalf’s § 2255 motion as
untimely is not deserving of further proceedings or subject to a different
resolution on appeal. Accordingly, we deny Metcalf’s request for a COA and
1
The district court also concluded it was appropriate to enforce the waiver
of collateral attack rights contained in Metcalf’s plea agreement.
-3-
dismiss this appeal. Metcalf’s request to proceed in forma pauperis on appeal is
granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-