[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
No. 09-16394 ELEVENTH CIRCUIT
JULY 20, 2011
D. C. Docket Nos. 08-23482-CV-DLG,[End Page 05-20271-CR-DLG]
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the Southern District of Florida
(July 20, 2011)
Before DUBINA, Chief Judge, BARKETT and PRYOR, Circuit Judges.
Ivan Bido, a federal prisoner, appeals pro se the district court's order
denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
On appeal, he argues that the district court failed to apply the actual innocence
exception to the procedural default rule and that he is "actually innocent" of being
a career offender. Additionally, Bido argues that his motion asserted a
constitutional violation because the district court violated his due process rights in
two ways. First, he argues that his due process rights were violated because he was
sentenced in excess of the ten-year statutory maximum due to the district court's
incorrect application of the Armed Career Criminal Act ("ACCA"). Second, he
argues that the sentence the court imposed violated his due process rights because
he was not a career offender.
In a proceeding on a motion to vacate, set aside, or correct sentence, the
district court's factual findings are reviewed for clear error while legal issues are
reviewed de novo. Lynn v. United States, 365 F.3d 1225
, 1232 (11th Cir. 2004).
We liberally construe pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262
, 1263 (11th Cir. 1998). Appellate review of an unsuccessful § 2255 motion
generally is limited to the issues specified in the certificate of appealability
("COA"). Murray v. United States, 145 F.3d 1249
, 1250""51 (11th Cir. 1998). [End Page 2]
However, threshold procedural issues that must be resolved before we can reach
the underlying claim are presumed to be encompassed within the COA. See
McCoy v. United States, 266 F.3d 1245
, 1248 n.2 (11th Cir. 2001).
A prisoner in federal custody may file a motion to vacate, set aside, or
correct sentence "claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject
to collateral attack." 28 U.S.C. § 2255(a). Unless the claimed error involves a lack
of jurisdiction or a constitutional violation, however, § 2255 relief is limited.
United States v. Addonizio, 442 U.S. 178
, 185, 99 S. Ct. 2235
, 2240, 60 L. Ed. 2d 805
(1979). Generally, a non-constitutional error of law will only form the basis
for § 2255 relief if it constitutes a "fundamental defect which inherently results in a
complete miscarriage of justice." Id. at 185, 99 S. Ct. at 2240 (internal quotation
Under the career offender guideline, U.S.S.G. § 4B1.1, a defendant is
sentenced as a career offender if, among other requirements, he has at least two
prior felony convictions of either a crime of violence or a controlled substance
[End Page 3]
offense. Similarly, the ACCA enhances federal felon-in-possession sentences
when the defendant has at least three prior convictions for either a violent felony or
a serious drug offense. 18 U.S.C. § 924(e)(1). We have held that the definition of
a "crime of violence" under the Sentencing Guidelines and a "violent felony"
under the ACCA are "virtually identical." United States v. Archer, 531 F.3d 1347
1352 (11th Cir. 2008). Following the Supreme Court's decision in Begay v. United
States, 553 U.S. 137
, 128 S. Ct. 1581
, 170 L. Ed. 2d 490
(2008), which narrowed
the definition of a violent felony under the ACCA, we held that the crime of
carrying a concealed firearm could no longer be considered a crime of violence
under the Sentencing Guidelines. Archer, 531 F.3d at 1352.
In general, a criminal defendant who fails to object at trial, or to raise an
issue on direct appeal, is procedurally barred from raising the claim in a § 2255
motion, absent a showing of cause and prejudice or a fundamental miscarriage of
justice. United States v. Frady, 456 U.S. 152
, 167-68, 102 S. Ct. 1584
, 1594, 71 L.
Ed. 2d 816 (1982). However, he can show a fundamental miscarriage of justice
and overcome the procedural bar by showing that he is "actually innocent." See
Bousley v. United States, 523 U.S. 614
, 623, 118 S. Ct. 1604
, 1611, 140 L. Ed. 2d 828
(1998). Although the COA did not identify Bido's procedural default as an
[End Page 4]
issue for review, a movant generally is not entitled to review of procedurally-
defaulted claims. See Frady, 456 U.S. at 167-68, 102 S. Ct. at 1594. Therefore,
we must consider whether the actual innocence exception applies to excuse Bido's
procedural default. See McCoy, 266 F.3d at 1248 n.2.
Bido argues that the district court failed to apply the actual innocence
exception and, relying on the panel opinion in Gilbert v. United States, 609 F.3d 1159
(11th Cir. 2010) ("Gilbert I"), rev'd en banc, 640 F.3d 1293
(11th Cir. 2011)
("Gilbert II"), claims that he is "actually innocent" of being a career offender.
However, our recent en banc decision in Gilbert II forecloses this argument for two
reasons. First, Gilbert also had argued that he was actually innocent of being a
career offender, but we categorically rejected that claim, explaining that Gilbert
was neither charged with, nor convicted of, being a career offender. Gilbert II, 640
F.3d at 24""25. Second, in order to invoke the actual innocence exception to the
procedural default rule, a petitioner must show that his conviction resulted from a
constitutional violation. Id. at 25; Johnson v. Fla. Dep't of Corr., 513 F.3d 1328
1334 (11th Cir. 2008). However, a petitioner's claim that a Sentencing Guideline
provision was misapplied to him at sentencing is not a constitutional claim.
Gilbert II, 640 F.3d at 27. Accordingly, the actual innocence exception does not
apply to Bido. Because Bido has not demonstrated a fundamental miscarriage of
[End Page 5]
justice to excuse his procedural default, we decline to reach the merits of his
procedurally-defaulted claim, and we affirm the district court's order denying his
§ 2255 motion.
[End Page 6]