[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12222

Non-Argument Calendar

____________________

JULIAN BREAL, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cv-23158-FAM

____________________

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2 Opinion of the Court 22-12222

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and JILL 

PRYOR, Circuit Judges.

PER CURIAM:

Julian Breal, a federal prisoner, appeals the order denying his

successive motion to vacate, 28 U.S.C. § 2255, his conviction and 

sentence for possessing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c). Breal obtained leave to file his motion 

seeking a vacatur based on United States v. Davis, 139 S. Ct. 2319

(2019). The district court ruled that Breal procedurally defaulted his 

claim for relief. We affirm.

I. BACKGROUND

In 2012, Breal and five others conspired to rob a drug dealer. 

Breal provided information about the victim, his assets, and his 

movements, so that the other conspirators, none of whom were

known to the victim, could execute the robbery. The other conspirators agreed that Breal would receive a share of the proceeds of 

their crime.

The conspirators’ initial plan was to intercept the victim on 

his return from a fishing trip, but they altered their plan when Breal 

learned that the victim had sold his fishing boat. They decided instead to rob the victim’s house. Breal provided the address and 

agreed to serve as lookout. But there were too many people at the 

victim’s house, so the conspirators aborted the robbery.

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Breal’s co-conspiratorslater abducted the victim at gunpoint 

as he was exiting a bar. They forced the victim into the back of his 

car and drove him to a co-conspirator’s house, where they tortured 

the victim and demanded the names of people they could call to 

demand ransom. Breal was not present, but after the victim provided several names, one of the co-conspirators called Breal, told 

Breal “we got him,” and asked Breal to confirm the names and 

phone numbers as potential targets for ransom money. Breal confirmed the information. The co-conspirators then called the victim’s brother, tortured the victim so that he screamed over the 

phone, and demanded ransom. About two months later, the police 

interviewed Breal. After he waived his right to counsel and his right 

to remain silent, Breal confessed to his role in the crimes. 

Breal and the five other conspirators were charged in a superseding indictment with conspiring to commit hostage taking, 18 

U.S.C. § 1203(a), hostage taking, id. §§ 1203(a), 2, kidnapping, id. 

§§ 1201(a), 2, carjacking, id. §§ 2119, 2, and possessing a firearm in 

furtherance of a crime of violence, id. §§ 924(c)(1)(A), 2, as set forth 

in the preceding four counts. All of the co-conspirators pleaded 

guilty, save for Breal. He was convicted of all counts following a

jury trial and sentenced to a total term of 50 years of imprisonment, 

which included a mandatory consecutive five-year term of imprisonment for the firearm conviction. Breal challenged his convictions and sentence, without success, on direct appeal. United States 

v. Breal, 593 F. App’x 949 (11th Cir. 2014).

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After Breal filed a motion to vacate in 2015, which the district court denied, we denied him a certificate of appealability.

Breal did not challenge the constitutionality of the residual clause 

in section 924(c) in either his direct appeal or his initial motion to 

vacate. In 2018, Breal applied for leave to file a second motion to 

vacate based on Sessions v. Dimaya, 138 S. Ct. 1204 (2018), but we 

denied his application. In re Julian Breal, No. 18-14347 (Nov. 14, 

2018). We later granted Breal leave to file a successive motion to 

vacate to raise a Davis challenge to the validity of his firearm offense. See 28 U.S.C. § 2255(h)(2).

Breal moved to vacate his firearm conviction. 28 U.S.C. 

§ 2255. He argued that his firearm conviction was invalid because 

three of his predicates—conspiracy to commit hostage taking, hostage taking, and kidnapping—were no longer “crimes of violence”

after Davis. He argued that the jury’s general verdict precluded 

knowing which of the four predicate offenses it relied on to convict 

him of the firearm offense but that the jury most likely relied on 

the offense of conspiracy to commit hostage taking because he was 

not physically present for any of the substantive offenses. The government responded that Breal’s Davis argument was procedurally 

defaulted and failed on the merits.

The magistrate judge recommended a stay pending the resolution of similar cases in this circuit, which the district court 

granted. Following our decisions in Granda v. United States, 990 F.3d 

1272 (11th Cir. 2021), cert. denied, 142 S. Ct. 1233 (2022), and Foster 

v. United States, 996 F.3d 1100 (11th Cir. 2021), cert. denied, 142 S. Ct. 

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500 (2021), Breal argued that his case was distinguishable from 

Granda and Foster because the essence of his convictions was based 

on his imputed, not active, participation, making it more likely that 

the jury relied on an invalid predicate offense. He also argued that

he had shown cause to overcome the procedural default because 

his Davis argument was not reasonably available to counsel during 

his direct appeal.

The government responded that Breal could not show cause 

and prejudice because, as in Granda, the tools necessary for raising 

a vagueness challenge to the residual clause in section 924(c) were 

available to him, and the valid and invalid predicate offenses were 

inextricably intertwined. It argued that, under Pinkerton v. United 

States, 328 U.S. 640 (1946), Breal was liable for the reasonably foreseeable substantive offenses that his co-conspirators committed in 

furtherance of the conspiracy, so his physical absence during the 

substantive offenses did not distinguish his case from Granda.

The magistrate judge recommended denying Breal’s motion 

because, based on Granda, his argument was procedurally defaulted, and he could not establish cause and prejudice or actual 

innocence. The district court overruled Breal’s objections, adopted 

the report and recommendation, and denied his motion to vacate.

The district court issued Breal a certificate of appealability as to 

“whether the procedural default rule bars relief in this case.”

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II. STANDARD OF REVIEW

The application of the doctrine of procedural default to a 

motion to vacate presents a mixed question of fact and law, which 

we review de novo. Granda, 990 F.3d at 1286.

III. DISCUSSION

A federal prisoner can move to vacate, set aside, or correct 

his sentence on the “ground that . . . sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. 

§ 2255(a). A motion for collateral relief is subject to the doctrine of 

procedural default. Granda, 990 F.3d at 1280. That doctrine bars a 

prisoner from obtaining postconviction relief based on an argument that he could have raised at trial and on direct appeal. McKay 

v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). A prisoner can 

excuse his procedural default by establishing both “cause to excuse 

the default and actual prejudice from the claimed error,” or actual 

innocence. Granda, 990 F.3d at 1286.

Granda controls this appeal. Ordinarily, a prisoner can establish cause if his postconviction motion is based on a novel legal rule 

that was unavailable to counsel on direct appeal. See id. In Granda, 

we considered the issue whether a Davis challenge presented a 

novel constitutional rule that provided cause to excuse the movant’s procedural default. We ruled that vagueness challenges to 

criminal statutes were “commonplace” at the time of Granda’s direct appeal in 2009, so Granda “did not then lack the ‘building 

blocks’ of a vagueness challenge to the § 924(c) residual clause,” 

and could not establish cause to excuse his default. Id. at 1287. 

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Breal argues that his Davis challenge was unavailable during

his direct appeal in 2014. But he fails to explain how, if the building 

blocks of a vagueness challenge were available to Granda at least 

as early as 2009, those building blocks were unavailable to Breal

during his direct appeal five years later. Breal seeks to distinguish 

his case from Granda based on his “prior attempts to file a 2255 Petition.” But whether Breal previously sought to collaterally attack 

his section 924(c) conviction based on Dimaya or Johnson v. United 

States, 135 S. Ct. 2551 (2015), matters not. To avoid procedural default, he was required to make this challenge “on direct appeal,” and,

to establish cause to excuse the default, he must establish that the 

argument was unavailable “at the time of the default.” Granda, 990 

F.3d at 1286 (emphasis added).

Breal also cannot establish prejudice or that actual innocence excuses his procedural default. Breal argues that he is innocent of the firearm offense because all of his predicate offenses are 

invalid, except for his carjacking offense which he acknowledges is 

a valid crime-of-violence predicate under our prior precedent. See 

Steiner v. United States, 940 F.3d 1282, 1293 (11th Cir. 2019); In re 

Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016). “Actual innocence 

means factual innocence, not mere legal innocence.” Granda, 990 

F.3d at 1292 (quoting Lynn v. United States, 365 F.3d 1225, 1235 n.18 

(11th Cir. 2004)). To establish actual innocence, Breal must establish that no reasonable juror would have concluded that he possessed a firearm under any theory of liability in furtherance of the 

valid predicate offense of carjacking. See id. Breal cannot do so.

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All of Breal’s “predicates are inextricably intertwined, arising 

out of the same [] scheme.” Id. at 1280. Breal conspired with the 

other conspirators to intercept and rob the victim. To effectuate 

their goal, the other conspirators forced the victim at gunpoint into 

the back of the victim’s car and drove the car to one of the conspirator’s homes. Indeed, as we explained in deciding Breal’s direct 

appeal, the “substantive offense of carjacking was foreseeable because the original plan involved a carjacking. And the carrying or 

use of a firearm during the carjacking . . . of a drug dealer was reasonably foreseeable, based on the inherent dangers of the drug 

trade and the planned violent conduct in abducting the victim.” 

Breal, 593 F. App’x at 952. Because Breal cannot show 

cause-and-prejudice or actual innocence, he cannot overcome his 

procedural default.

IV. CONCLUSION

We AFFIRM the denial of Breal’s motion to vacate.

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