                                                                [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                             FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                  MARCH 28, 2011
                                     No. 10-11128                   JOHN LEY
                                 Non-Argument Calendar                CLERK
                               ________________________

              D.C. Docket Nos. 1:09-cv-20975-PCH &1:06-cr-20449-PCH-1



JOHNNY EDWARD KING,
lllllllllllllllllllll                                            Petitioner-Appellant,


                                          versus


UNITED STATES OF AMERICA,

lllllllllllllllllll                                           ll Defendant-Appellee.

                              ________________________

                        Appeal from the United States District Court
                            for the Southern District of Florida
                              ________________________

                                     (March 28, 2011)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Johnny Edward King, a federal prisoner, appeals the district court’s denial

of his motion to vacate, set aside, or correct sentence, filed pursuant to 28 U.S.C.

§ 2255. We granted a certificate of appealability to address the question of

whether the district court erred in determining that the actual-innocence exception

to the procedural-default rule does not apply to King’s claim that his non-capital

sentence under the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C.

§ 924(e)(1), violated his right to due process. King acknowledges that he

procedurally defaulted his claim that he was illegally sentenced under the ACCA

by failing to raise it on direct appeal, but he contends that the district court’s

failure to address his claim resulted in a fundamental miscarriage of justice

because he was ineligible for, and, therefore, actually innocent of, the ACCA

sentence enhancement. He argues that the actual-innocence exception to the

procedural-default rule should be extended to apply to challenges to non-capital

sentences because death is not different from non-capital sentences for purposes of

enforcing habeas corpus rules.

      “When reviewing the district court’s denial of a § 2255 motion, we review

findings of fact for clear error and questions of law de novo.” Rhode v. United

States, 583 F.3d 1289, 1290 (11th Cir. 2009). A prisoner who fails to raise an

issue on direct appeal is procedurally barred from raising that claim in a § 2255

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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). A

petitioner may show a fundamental miscarriage of justice by demonstrating that “a

constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004).

The Supreme Court has recognized that a petitioner who is guilty of an offense

and sentenced to death can show a fundamental miscarriage of justice by

demonstrating that, but for a constitutional error, he is actually innocent of the

capital sentence. See Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 2517,

120 L.Ed.2d 269 (1992). A petitioner may establish actual innocence in the

capital-sentencing context by demonstrating that, “but for a constitutional error, no

reasonable juror would have found [him] eligible for the death penalty under the

applicable . . . law.” Id.

      In light of the Government’s concession on appeal that the actual-innocence

exception should be available to petitioners raising procedurally defaulted claims

challenging non-capital sentences enhanced under the ACCA, we remand King’s

case to the district court for a determination of whether King is actually innocent

of the ACCA sentence enhancement.

      VACATED AND REMANDED.

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