[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16112 ELEVENTH CIRCUIT
OCTOBER 2, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 08-81395-CV-KLR ; 06-80143 CR-KLR
CHARLES T. MCDANIEL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 2, 2012)
Before BARKETT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Charles McDaniel, a federal prisoner serving a total 57-month sentence after
pleading guilty to multiple firearm-related charges, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
For the reasons set forth below, we affirm.
I.
In 2006, McDaniel pleaded guilty to seven counts of making false
statements in connection with gun purchases and seven counts of possessing a
firearm while being a convicted felon. He was assigned an enhanced base offense
level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because he had unlawfully
possessed firearms subsequent to sustaining a felony conviction for a crime of
violence, namely, driving under the influence (“DUI”). McDaniel initially
objected to his DUI offense being classified as a crime of violence. However, he
voluntarily withdrew this objection as part of an agreement with the government.
The district court sentenced him to 57 months in prison and three years of
supervised release on each count, all terms to be served concurrently. McDaniel
filed a notice of appeal, but then successfully moved to dismiss the appeal with
prejudice.
In 2008, McDaniel timely filed a § 2255 motion alleging that a DUI
conviction could no longer be considered a crime of violence in light of the
Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581,
170 L.Ed.2d 490 (2008), and, thus, the increase in his base offense level was
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illegal. He sought retroactive application of Begay, a 6-level reduction in his base
offense level, and a corresponding 27-month reduction in his sentence. The
government responded that McDaniel’s claim was not cognizable under § 2255
because the alleged error was not constitutional and did not result in a fundamental
miscarriage of justice. The government also argued that the claim was
procedurally defaulted because McDaniel failed to raise it on direct appeal.
The magistrate judge, relying on an unpublished decision by a panel of this
Court, found that McDaniel’s claim was not cognizable under § 2255 because it
was non-constitutional and could have been, but was not, raised on direct appeal.
The district court ultimately adopted the magistrate’s report and denied the § 2255
motion. We granted a certificate of appealability (“COA”) on the issue of whether
the district court erred in finding that McDaniel’s claim was not cognizable under
§ 2255.1
II.
In a § 2255 proceeding, we review questions of law de novo and the district
1
We note that, while McDaniel’s appeal was pending in this Court, he was released
from prison. This does not render the instant appeal moot because McDaniel is still serving his
term of supervised release, which involves restrictions on his liberty. See Dawson v. Scott, 50
F.3d 884, 885-86 & n.2 (11th Cir. 1995) (declining to dismiss as moot the appeal of a 28 U.S.C.
§ 2241 habeas petitioner who challenged his term of imprisonment, as the petitioner was still
serving his term of supervised release); United States v. Page, 69 F.3d 482, 487 & n.4, 495 (11th
Cir. 1995) (declining on direct appeal to dismiss the defendants’ challenges to their sentences, as
the defendants were still on supervised release).
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court’s findings of fact for clear error. Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir. 2004). Although we granted the COA on the threshold issue of whether
McDaniel’s claim was cognizable under § 2255, we decline to reach this issue and
instead hold that his claim was barred under the doctrine of procedural default. See
McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011) (declining to
address the issue of cognizability, framed as the threshold issue in the COA, and
instead denying the movant’s § 2255 claim on grounds of procedural default); see
also Lynn, 365 F.3d at 1233 (“In many cases in the past, this Court has opted to
address the issues of procedural default . . . without expressly addressing the
threshold inquiry of whether the claimed error is even cognizable in a § 2255
proceeding.”).
Under the rule of procedural default, “a defendant generally must advance an
available challenge to a criminal conviction or sentence on direct appeal or else the
defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn, 365
F.3d at 1234. A defendant may avoid a procedural bar by establishing one of the
two exceptions to the procedural default rule. Id. Under the first exception, “a
defendant must show cause for not raising the claim of error on direct appeal and
actual prejudice from the alleged error.” Id. If a defendant fails to establish cause
and prejudice, he may still be entitled to relief if he can show that he is “actually
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innocent.” Id. at 1234-35.
In this case, McDaniel has procedurally defaulted on his claim because he
failed to raise it on direct appeal. See id. at 1234. In fact, he affirmatively
withdrew his objection to his DUI offense being considered a crime of violence.
Thus, McDaniel is not eligible for § 2255 relief unless he shows (1) cause and
prejudice, or (2) actual innocence. See id.
McDaniel does not allege cause and prejudice on appeal to this Court, and,
therefore, we will not consider the issue. See McKay, 657 F.3d at 1196 (declining
to consider the issue of cause and prejudice where the defendant did not raise it on
appeal). As to actual innocence, our recent decision in McKay resolves the
question against McDaniel. In McKay, the defendant claimed in a § 2255 motion
that he was erroneously sentenced as a career offender because, in light of Begay,
his prior conviction did not qualify as a crime of violence under the Guidelines. Id.
at 1194-95. We held that the actual-innocence exception did not excuse the
defendant’s procedural default. Id. at 1198-1200. We reasoned that his claim
concerned only legal innocence, not factual innocence, because he did not allege
that he did not commit the offense underlying his prior conviction. Id. at 1199.
Likewise, because McDaniel does not assert that he was factually innocent of the
DUI offense, his claim rests only on legal innocence and does not fall within the
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actual-innocence exception. See id. Accordingly, McDaniel failed to present a
valid excuse for procedurally defaulting on his § 2255 claim, and we affirm the
district court’s denial of his § 2255 motion.
AFFIRMED.
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