[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-13065

Non-Argument Calendar

________________________

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.

________________________

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.

Case: 12-13065 Date Filed: 04/04/2014 Page: 1 of 6 
2

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 

Case: 12-13065 Date Filed: 04/04/2014 Page: 2 of 6 
3

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.

Case: 12-13065 Date Filed: 04/04/2014 Page: 3 of 6 
4

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 

Case: 12-13065 Date Filed: 04/04/2014 Page: 4 of 6 
5

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 

Case: 12-13065 Date Filed: 04/04/2014 Page: 5 of 6 
6

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.

Case: 12-13065 Date Filed: 04/04/2014 Page: 6 of 6