                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________           FILED
                                                     U.S. COURT OF APPEALS
                                  No. 09-16112         ELEVENTH CIRCUIT
                                                         OCTOBER 2, 2012
                              Non-Argument Calendar
                                                            JOHN LEY
                            ________________________
                                                             CLERK

            D. C. Docket Nos. 08-81395-CV-KLR ; 06-80143 CR-KLR


CHARLES T. MCDANIEL,

                                                                 Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                 (October 2, 2012)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Charles McDaniel, a federal prisoner serving a total 57-month sentence after

pleading guilty to multiple firearm-related charges, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

For the reasons set forth below, we affirm.

                                          I.

      In 2006, McDaniel pleaded guilty to seven counts of making false

statements in connection with gun purchases and seven counts of possessing a

firearm while being a convicted felon. He was assigned an enhanced base offense

level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because he had unlawfully

possessed firearms subsequent to sustaining a felony conviction for a crime of

violence, namely, driving under the influence (“DUI”). McDaniel initially

objected to his DUI offense being classified as a crime of violence. However, he

voluntarily withdrew this objection as part of an agreement with the government.

The district court sentenced him to 57 months in prison and three years of

supervised release on each count, all terms to be served concurrently. McDaniel

filed a notice of appeal, but then successfully moved to dismiss the appeal with

prejudice.

      In 2008, McDaniel timely filed a § 2255 motion alleging that a DUI

conviction could no longer be considered a crime of violence in light of the

Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581,

170 L.Ed.2d 490 (2008), and, thus, the increase in his base offense level was


                                          2
illegal. He sought retroactive application of Begay, a 6-level reduction in his base

offense level, and a corresponding 27-month reduction in his sentence. The

government responded that McDaniel’s claim was not cognizable under § 2255

because the alleged error was not constitutional and did not result in a fundamental

miscarriage of justice. The government also argued that the claim was

procedurally defaulted because McDaniel failed to raise it on direct appeal.

       The magistrate judge, relying on an unpublished decision by a panel of this

Court, found that McDaniel’s claim was not cognizable under § 2255 because it

was non-constitutional and could have been, but was not, raised on direct appeal.

The district court ultimately adopted the magistrate’s report and denied the § 2255

motion. We granted a certificate of appealability (“COA”) on the issue of whether

the district court erred in finding that McDaniel’s claim was not cognizable under

§ 2255.1

                                                II.

       In a § 2255 proceeding, we review questions of law de novo and the district


       1
         We note that, while McDaniel’s appeal was pending in this Court, he was released
from prison. This does not render the instant appeal moot because McDaniel is still serving his
term of supervised release, which involves restrictions on his liberty. See Dawson v. Scott, 50
F.3d 884, 885-86 & n.2 (11th Cir. 1995) (declining to dismiss as moot the appeal of a 28 U.S.C.
§ 2241 habeas petitioner who challenged his term of imprisonment, as the petitioner was still
serving his term of supervised release); United States v. Page, 69 F.3d 482, 487 & n.4, 495 (11th
Cir. 1995) (declining on direct appeal to dismiss the defendants’ challenges to their sentences, as
the defendants were still on supervised release).

                                                 3
court’s findings of fact for clear error. Lynn v. United States, 365 F.3d 1225, 1232

(11th Cir. 2004). Although we granted the COA on the threshold issue of whether

McDaniel’s claim was cognizable under § 2255, we decline to reach this issue and

instead hold that his claim was barred under the doctrine of procedural default. See

McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011) (declining to

address the issue of cognizability, framed as the threshold issue in the COA, and

instead denying the movant’s § 2255 claim on grounds of procedural default); see

also Lynn, 365 F.3d at 1233 (“In many cases in the past, this Court has opted to

address the issues of procedural default . . . without expressly addressing the

threshold inquiry of whether the claimed error is even cognizable in a § 2255

proceeding.”).

      Under the rule of procedural default, “a defendant generally must advance an

available challenge to a criminal conviction or sentence on direct appeal or else the

defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn, 365

F.3d at 1234. A defendant may avoid a procedural bar by establishing one of the

two exceptions to the procedural default rule. Id. Under the first exception, “a

defendant must show cause for not raising the claim of error on direct appeal and

actual prejudice from the alleged error.” Id. If a defendant fails to establish cause

and prejudice, he may still be entitled to relief if he can show that he is “actually


                                            4
innocent.” Id. at 1234-35.

      In this case, McDaniel has procedurally defaulted on his claim because he

failed to raise it on direct appeal. See id. at 1234. In fact, he affirmatively

withdrew his objection to his DUI offense being considered a crime of violence.

Thus, McDaniel is not eligible for § 2255 relief unless he shows (1) cause and

prejudice, or (2) actual innocence. See id.

      McDaniel does not allege cause and prejudice on appeal to this Court, and,

therefore, we will not consider the issue. See McKay, 657 F.3d at 1196 (declining

to consider the issue of cause and prejudice where the defendant did not raise it on

appeal). As to actual innocence, our recent decision in McKay resolves the

question against McDaniel. In McKay, the defendant claimed in a § 2255 motion

that he was erroneously sentenced as a career offender because, in light of Begay,

his prior conviction did not qualify as a crime of violence under the Guidelines. Id.

at 1194-95. We held that the actual-innocence exception did not excuse the

defendant’s procedural default. Id. at 1198-1200. We reasoned that his claim

concerned only legal innocence, not factual innocence, because he did not allege

that he did not commit the offense underlying his prior conviction. Id. at 1199.

Likewise, because McDaniel does not assert that he was factually innocent of the

DUI offense, his claim rests only on legal innocence and does not fall within the


                                            5
actual-innocence exception. See id. Accordingly, McDaniel failed to present a

valid excuse for procedurally defaulting on his § 2255 claim, and we affirm the

district court’s denial of his § 2255 motion.

      AFFIRMED.




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