FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 21, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 11-13353 

Non-Argument Calendar

 ________________________

 D.C. Docket Nos. 8:04-cr-00602-RAL-TGW-1; 8:10-cv-01139-RAL-TGW

SHANTA TORI RIVERS, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

________________________

 Appeal from the United States District Court

 for the Middle District of Florida

 ________________________

(May 21, 2012)

Before HULL, WILSON, and MARTIN, Circuit Judges.

PER CURIAM:

Shanta Tori Rivers, a federal prisoner serving a sentence of 110 months’
imprisonment for his convictions for possession of a firearm and ammunition, and

possession of marijuana, filed a motion to vacate his sentence under 28 U.S.C.

§ 2255. Rivers premised his § 2255 motion on a claim of actual innocence of the

enhancement applied to his sentence pursuant to U.S.S.G § 2K2.1(a)(2). The

district court found the claim was procedurally defaulted, but granted a Certificate

of Appealability regarding whether the district court erred in denying Rivers’s

claim of actual innocence. 

On appeal Rivers argues the district court erred when it found his claim

procedurally defaulted. He claims actual innocence of the U.S.S.G. § 2K2.1(a)(2)

enhancement because, in light of Johnson v. United States, 130 S. Ct. 1265 (2010),

one of his predicate offenses, is no longer a crime of violence. He concedes that

under our holding in McKay v. United States, 657 F.3d 1190 (11th Cir. 2011)

petition for cert. filed, No. 11-9985 (April 23, 2012), his argument that he is

innocent of the enhancement because one of his predicate convictions was

misclassified does not require reversal. He asserts, however, that McKay was

wrongly decided, and he only needs to show that he is innocent of the enhanced

penalty rather than factually innocent of the predicate offense.

In analyzing a district court’s denial of a § 2255 motion, we review findings

of fact for clear error and questions of law de novo. McKay, 657 F.3d at 1195. A

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federal criminal defendant who fails to preserve a claim by objecting at trial or

raising it 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. Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998). “Under the

cause and prejudice exception, a § 2255 movant can avoid application of the

procedural default bar by showing cause for not raising the claim of error on direct

appeal and actual prejudice from the alleged error.” McKay, 657 F.3d at 1196

(internal quotation marks and alterations omitted). A defendant may also show a

fundamental miscarriage of justice to overcome the procedural bar by

demonstrating “actual innocence.” Id. 

The actual-innocence exception has been applied in two distinct contexts:

“first, in the face of a claim of actual innocence of the crime of conviction and,

second, in the face of a claim of actual innocence of a sentence.” McKay, 657

F.3d at 1196. The actual-innocence-of-a-sentence exception has been applied in

capital cases and requires a movant to show “by clear and convincing evidence

that, but for a constitutional error, no reasonable juror would have found him

eligible for the death penalty under the applicable state law.” Id. at 1196–97

(quotation and alteration omitted). We have not extended the actual-innocence-ofa-sentence exception beyond the capital sentencing context. See id. at 1197. 

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Assuming that the actual-innocence exception can apply to noncapital

sentences, a movant must show that he is factually innocent of one of the prior

convictions. See id. at 1197–98. In McKay, the movant argued that he was

erroneously sentenced as a career offender under U.S.S.G. § 4B1.1 because one of

his predicate convictions was no longer considered a “crime of violence.” Id. at

1191, 1198. We held that the movant’s claim was a claim of legal, rather than

factual, innocence and did not fall within the purview of the actual-innocence

exception. Id. at 1198–99. In doing so, we recognized the Supreme Court’s

instruction that the actual-innocence exception is “rare” and should only be

applied in an “extraordinary case.” Id. at 1198 (quotation omitted). 

Rivers only alleges that he is legally innocent of the enhancement because

battery on a law enforcement officer is no longer considered a crime of violence. 

He does not allege factual innocence—i.e. that he did not commit the predicate

offense. Therefore, the actual-innocence exception does not apply and Rivers’s

claim is procedurally defaulted. See id. at 1197–99.1

AFFIRMED.

 Rivers also argues that his claim is cognizable in a § 2255 motion, even though with the 1

guideline enhancement his actual sentence fell below the statutory maximum. In light of our

decision that Rivers’s claim is procedurally defaulted we need not address whether this claim is

cognizable. See McKay, 657 F.3d at 1195. 

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