United States of America v. Chad Eugene Caldwell

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHAD EUGENE CALDWELL,
Defendant - Appellant.
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)
_________________________________
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* This order is not binding precedent except under the doctrines of law of the case,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).
FILED
United States Court of Appeals
Tenth Circuit
October 21, 2021
Christopher M. Wolpert
Clerk of Court
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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
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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.
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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 actual-
innocence 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.
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