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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13065
Non-Argument Calendar
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D.C. Docket Nos. 3:11-cv-00196-RBD-TEM, 3:07-cr-00275-TJC-TEM-1
JAMES G. HILL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 4, 2014)
ON PETITION FOR REHEARING
Before MARCUS, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
We sua sponte grant rehearing in this case, vacate our prior opinion filed on
8 October 2013 in its entirety, and substitute the following opinion in its place.
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James Hill appeals the denial of his 28 U.S.C. § 2255 motion, in which he
argued that his due process rights were violated because his sentence was enhanced
under the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e),
when his earlier Florida conviction for battery on a law enforcement officer
constituted no “violent felony” under the statute.
By way of background, in 2007, Hill pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and his
plea agreement contained a collateral-review waiver in which he agreed to waive
his right to challenge collaterally his conviction. The waiver permitted him to
challenge his sentence if his sentence was above the statutory maximum. Hill
previously had been convicted of, among other things, battery on a law
enforcement officer. So, the district court determined that Hill was an armed
career criminal. Hill did not object to the application of the ACCA before the
district court, and he was sentenced to 188 months’ imprisonment in 2008. If not
sentenced as an armed career criminal, Hill faced a statutory maximum of ten
years’ imprisonment. Hill filed no direct appeal.
In 2012, Hill filed his § 2255 motion; he argued the motion was timely under
§ 2255(f)(3) because the motion was based on the Supreme Court’s decision in
Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).
The district court denied the motion, concluding that (1) Hill’s claim was
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procedurally defaulted because he had not raised it on direct appeal, (2) the motion
was time-barred both because he did not file it within one year of the date on
which his conviction became final and because we had not declared Johnson
retroactively applicable on collateral review, and (3) the motion was barred by his
collateral-review waiver.
Hill filed a timely notice of appeal, and we granted a certificate of
appealability (“COA”) on the following issues:
(1) Whether the district court erred in determining that Hill’s 28 U.S.C.
§ 2255 motion was time-barred, procedurally defaulted, and barred by
his sentence-appeal waiver.
(2) If so, whether the original sentencing court violated Hill’s
due-process rights by imposing his sentence under the [ACCA].
On appeal, Hill concedes that his claim was procedurally barred, but argues
that the district court should have held an evidentiary hearing to determine whether
he could show either actual innocence or cause and prejudice sufficient to
overcome the procedural bar. In addition, he argues that his § 2255 motion was
timely because it was filed within the one-year limitation period established in
§ 2255(f)(3), as Johnson is a retroactively applicable decision. He also argues that
the collateral-review waiver did not bar his § 2255 motion because his
ACCA-enhanced sentence is above the otherwise applicable statutory maximum.
Moreover, he argues that his due process rights were violated because he should
not have been sentenced as an armed career criminal.
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When reviewing the denial of a § 2255 motion, we review de novo questions
of law; and we review findings of fact for clear error. McKay v. United States,
657 F.3d 1190, 1195 (11th Cir. 2011). We may affirm on any ground supported by
the record. Id. at 1195-96. The burden of proof is on the movant. See Sullivan v.
Wainwright, 695 F.2d 1306, 1310 (11th Cir. 1983) (noting that the burden of proof
was on the petitioner in a habeas corpus proceeding, including to establish cause
and prejudice to excuse procedural default).
A claim is procedurally defaulted, such that the prisoner cannot raise it in a
collateral proceeding, when a defendant could have raised an issue on direct appeal
but did not do so. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). A
claim is procedurally defaulted even if it was foreclosed explicitly by existing
circuit precedent at the time of the defendant’s direct appeal. McCoy v. United
States, 266 F.3d 1245, 1258-59 (11th Cir. 2001) (noting that perceived futility does
not constitute cause to excuse a procedural default).
Defendants can avoid the procedural bar by establishing that either of the
following exceptions applies: (1) cause and prejudice, or (2) a miscarriage of
justice based on actual innocence. McKay, 657 F.3d at 1196. Under the
actual-innocence exception, the defendant must show that he was “actually
innocent either of the crime of conviction or, in the capital sentencing context, of
the sentence itself.” Id. Whether the actual-innocence exception extends to the
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non-capital sentencing context is an open question. Id. at 1197 & n.12. The
actual-innocence exception is “exceedingly narrow in scope” because it requires
that the defendant establish that he was, in fact, innocent of the offense, not merely
legally innocent, even in the sentencing context. Lynn, 365 F.3d at 1235 n.18; see
also McKay, 657 F.3d at 1197-98.
We have said that the actual-innocence exception does not apply to a
defendant who procedurally defaulted his claim that he erroneously was sentenced
as a career offender under the Sentencing Guidelines because his conviction was
not a “crime of violence” under the Guidelines. McKay, 657 F.3d at 1191-92,
1198. We explained that the actual-innocence exception did not apply because the
claim was “one of legal, rather than factual, innocence and thus fails to fall within
the actual innocence exception’s purview.” Id. at 1198. Although we expressly
did not resolve whether the actual-innocence exception extended to the non-capital
sentencing contexts, we wrote that we refused “to extend the actual innocence of
sentence exception to claims of legal innocence of a predicate offense justifying an
enhanced sentence.” Id. at 1198-99. McKay persuades us.
Here, the district court did not err by denying Hill’s § 2255 motion as
procedurally defaulted. Hill cannot satisfy the actual-innocence exception to the
procedural bar because he argued only that he was legally innocent of a violent
felony (battery on a law enforcement officer is not a violent felony under the
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ACCA), not that he was factually innocent of the crime of battery on a law
enforcement officer. Hill also cannot satisfy the cause and prejudice exception
because, although his claim was foreclosed by this Court’s precedent when Hill
was sentenced, the perceived futility of a claim does not establish cause to excuse
the default. See McCoy, 266 F.3d at 1258-59.
Because Hill’s arguments fail, as a matter of law, to establish actual
innocence or cause and prejudice, we decline to remand for an evidentiary hearing.
See Tejada v. Dugger, 941 F.2d 1551, 1556 (11th Cir. 1991). Hill’s sole claim is
procedurally barred; we need not reach his other arguments.
AFFIRMED.
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