                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-13153         ELEVENTH CIRCUIT
                                                     MARCH 22, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

   D. C. Docket Nos. 8:10-cv-00079-JSM-MAP; 8:06-cr-00349-JSM-MAP-1


STEVE BERRY,

                                                        Petitioner-Appellant,

     versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

              _________________________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
              _________________________________________

                             (March 22, 2012)

Before TJOFLAT, EDMONDSON and CARNES, Circuit Judges.


PER CURIAM:
      Steve Berry, a federal prisoner proceeding pro se, appeals the district court’s

denial of his motion for reconsideration of the district court’s order denying his

untimely habeas motion to vacate, set aside, or correct his sentence filed pursuant

to 28 U.S.C. § 2255. No reversible error has been shown; we affirm.

      Berry pleaded guilty to a drug-trafficking offense, 21 U.S.C. § 846. The

sentencing court concluded that Berry qualified as a career offender pursuant to

U.S.S.G. § 4B1.1 and sentenced him to 135 months’ imprisonment in February

2007. Berry appealed neither his conviction nor sentence.

      Almost three years later, in January 2010, Berry filed a section 2255 habeas

motion. Citing Chambers v. United States, 129 S.Ct. 687 (2009), Berry argued that

he had been sentenced improperly as a career offender because it is now clear that

the predicate offenses used to support his career-offender enhancement -- carrying

a concealed firearm -- no longer qualify as violent felonies. Berry argued that he is

factually innocent of the career-offender enhancement.

      The district court determined that Berry’s motion was untimely: it was filed

more than one year after entry of judgment had become final. The district court

rejected Berry’s argument that his motion was timely because it was filed within

one year of the Chambers decision. The Chambers decision was an extension of

the Supreme Court’s decision in Begay v. United States, 128 S.Ct. 1581 (2008);

                                          2
the limitations period under section 2255(f)(3) starts to run from “the date on which

the right asserted was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review.” 28 U.S.C. § 2255(f)(3). The district court concluded

that even if Begay and Chambers applied retroactively, Berry had only to 16 April

2008 -- one year from the date Begay issued -- to file his motion. It also ruled in

the alternative -- on the merits -- that Berry was entitled to no relief.

      The district court issued a certificate of appealability (“COA”) asking:

      whether the “actual innocence” doctrine applies within the context of
      challenging a predicate offense utilized to classify a defendant as a
      career offender, and if so, whether an “actual innocence” exception
      exists to AEPDA’s one-year limitation period.

      As a general rule, 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 section

2255 motion, absent a showing of cause for failing to preserve the claim and actual

prejudice from the alleged error. See United States. v. Frady, 102 S.Ct. 1584, 1594

(1982). Berry argues that the one-year statute of limitations should be tolled and

his procedural default excused because he is “actually innocent” -- both factually

and legally -- of being a career offender.




                                             3
      The merits of a procedurally defaulted claim may be reached, in very

narrowly defined circumstances, if failure to address the claim would result in a

“fundamental miscarriage of justice.” Murray v. Carrier, 106 S.Ct. 2639, 2649

(1986). And, actual innocence of the offense may be shown to satisfy the

fundamental miscarriage of justice standard. See Schlup v. Delo, 115 S.Ct. 851,

864 (1995) (“tying the miscarriage of justice exception to innocence ...

accommodates both the systemic interests in finality, comity, and conservation of

judicial resources, and the overriding individual interest in doing justice in the

‘extraordinary case.’”). But Berry does not claim to be actually innocent of the

crime for which he was sentenced or innocent of the predicate crimes upon which

his career-offender status was based; instead, he claims to be actually innocent of

being a career offender.

      United States v. McKay, 657 F.3d 1190 (11th Cir. 2011) rejected the

argument that an actual-innocence-of-sentence exception applies to an initial

section 2255 claim that the petitioner was wrongly sentenced as a career offender

where one of his predicate convictions -- carrying a concealed weapon -- did not

qualify as a “crime of violence.” Because the actual innocence exception is

focused on actual (not legal) innocence, we concluded that petitioner McKay --

who, like Berry, made no claim to being factually innocent of the crime of carrying

                                           4
a concealed weapon -- cannot qualify for the actual innocence exception. Id. at

1199. The actual innocence exception has no application to Berry’s sentencing

claim that he was wrongly sentenced as a career offender. See id. at 1200.

      Because Berry fails to show that his procedural default should be excused,

the district court committed no abuse of discretion in denying his motion for

reconsideration of the denial of his habeas petition. We decline to reach the merits

of his procedurally-defaulted claim.* See id.

      AFFIRMED.




  *
  Because the actual innocence exception has no application to Berry’s claim, we need not address
whether an “actual innocence” exception to AEDPA’s statute of limitations might exist.

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