            Case: 11-15494    Date Filed: 12/23/2013   Page: 1 of 5


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 11-15494
                          Non-Argument Calendar
                        ________________________

    D.C. Docket Nos. 8:09-cv-00895-SDM-TBM; 8:06-cr-00512-SDM-TBM



JAMES B. MORTON,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                        ________________________

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

                             (December 23, 2013)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

     James Morton appeals the district court’s denial of his 28 U.S.C. § 2255

motion, in which he argued that he improperly had been sentenced under the
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Armed Career Criminal Act (“ACCA”) because his prior conviction of carrying a

concealed firearm no longer constituted a violent felony, and the court’s denial of

his Federal Rule of Civil Procedure 59(e) motion for reconsideration. The district

court initially denied Morton’s § 2255 motion for reasons not relevant to this

appeal, and, after Morton filed his Rule 59(e) motion, the district court clarified

that it believed Morton to be arguing that he was actually innocent of the ACCA

enhanced sentence, and noted that this Court had rejected expanding the actual

innocence of sentence exception beyond cases involving the death penalty in

Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2012) (en banc) (“Gilbert II”),

cert. denied, 133 S.Ct. 1001 (2012).       Nevertheless, the district court granted

Morton’s request for a certificate of appealability on the following issue:

      Whether Gilbert v. United States, 640 F.3d 1293, 1322-23 (2011) (en banc),
      petition for cert. filed, (U.S. Aug. 17, 2011) (No. 11-6053), and McKay v.
      United States, 657 F.3d 1190 (11th Cir. 2011), foreclose Morton’s
      entitlement to the retroactive application of Chambers v. United States, ____
      U.S. ____, 129 S. Ct. 687, 691-93 (2009), Begay v. United States, 553 U.S.
      137 (2008), United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009), and
      United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), in his first
      Section 2255 motion to vacate.

On appeal, Morton contends that neither Gilbert II nor McKay forecloses his claim

because neither case involved an ACCA challenge brought in an initial § 2255

motion. After thorough review, we vacate and remand.

      When reviewing the denial of a § 2255 motion, we review de novo questions

of law, and we review findings of fact for clear error. McKay, 657 F.3d at 1195.
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We review the denial of a Rule 59(e) motion for abuse of discretion. Case v.

Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009).

      Pursuant to 18 U.S.C. § 924(e)(1), a person who violates 18 U.S.C. § 922(g)

and who “has three previous convictions . . . for a violent felony or a serious drug

offense, or both, committed on occasions different from one another” is subject to

a 15-year mandatory minimum sentence.         18 U.S.C § 924(e)(1).      Carrying a

concealed weapon is not considered to be a violent felony. United States v. Canty,

570 F.3d 1251, 1252, 1255 (11th Cir. 2009).

      In Gilbert II, we addressed whether the savings clause contained in §

2255(e) permits a federal prisoner to challenge his sentence under 28 U.S.C. §

2241 when a § 2255 motion would be second or successive. 640 F.3d at 1295.

Gilbert claimed that, pursuant to Begay and Archer, he should not have been

sentenced as a career offender, and that, even though he previously had filed a §

2255 motion, we should hold that he was entitled to seek relief under the savings

clause in § 2255(e). Id. at 1301-02. We concluded that Gilbert was not entitled to

use the savings clause to bring a § 2241 petition in part because of the interests of

finality in criminal judgments. Id. at 1309-12. However, we said that we had no

reason to decide whether a claim that the Sentencing Guidelines had been

misapplied could be brought in an initial § 2255 motion. Id. at 1306.




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      A claim is procedurally defaulted, such that the prisoner cannot raise it in a

collateral proceeding, when a defendant could have raised an issue on direct appeal

but did not do so. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). In

McKay, we addressed whether the actual innocence exception to procedural

defaults applied where the movant argued that he was actually innocent of a

sentence enhancement because his prior conviction no longer constituted a crime

of violence. 657 F.3d at 1198. We determined that the actual innocence of

sentence exception did not apply “to claims of legal innocence of a predicate

offense justifying an enhanced sentence.” Id. at 1199.

      Addressing the question posed by the COA, we conclude that the district

court erred by determining that Gilbert II and McKay foreclosed Morton’s § 2255

claim. Neither Gilbert II nor McKay determined whether a defendant could rely

on the retroactive application of Begay and its progeny in an initial § 2255 motion.

Instead, Gilbert II specifically addressed the availability of § 2241 relief via the §

2255(e) savings clause. 640 F.3d at 1309-12. Separately, McKay determined

whether legal innocence of a sentencing enhancement, based on the conclusion that

one predicate conviction no longer constituted a “crime of violence,” was

sufficient to overcome the procedural bar for claims not raised on direct appeal.

657 F.3d at 1199. Because neither involved the issue presented by this case --




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whether Begay and its progeny could be the grounds for relief in an initial § 2255

motion -- neither Gilbert II nor McKay forecloses Morton’s claim.

      Here, the government concedes that neither Gilbert II nor McKay forecloses

Morton’s claim, but argues that we should affirm on alternative grounds. But

because our scope of review in a habeas case typically is limited to the issues

specified in the COA, we decline to resolve the appeal on this basis. Murray v.

United States, 145 F.3d 1249, 1250 (11th Cir.1998). Accordingly, we vacate the

district court’s decision and remand for further proceedings.

      VACATED AND REMANDED.




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