FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 20, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16394

Non-Argument Calendar

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D. C. Docket Nos. 08-23482-CV-DLG,

05-20271-CR-DLG

IVAN BIDO,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

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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.

PER CURIAM:
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.

I.

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).

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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

marks omitted).

II.

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

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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.

III.

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

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issue for review, a movant generally is not entitled to review of procedurallydefaulted 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

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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.

AFFIRMED.

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