          United States Court of Appeals
                      For the First Circuit

No. 13-1098

                           JAMES DAMON,

                      Petitioner, Appellant,

                                v.

                    UNITED STATES OF AMERICA,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]



                              Before

                   Howard, Stahl and Thompson,
                         Circuit Judges.



     Virginia G. Villa, Assistant Federal Defender on brief for
appellant.
     Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty, United States Attorney, on brief for appellee.



                         October 3, 2013
            HOWARD, Circuit Judge.          After James Damon pleaded guilty

to    possession   of   a   firearm    by    a    felon,   the    district    court

determined that he had two prior felony convictions for a crime of

violence    and    a   controlled     substance     offense      and   accordingly

sentenced him under a higher Guideline range.               Two years later, in

the wake of the Supreme Court's decision in Johnson v. United

States, 559 U.S. 133 (2010), we held in United States v. Holloway,

630 F.3d 252 (1st Cir. 2011), that a Massachusetts conviction for

assault and battery——one of Damon's two prior convictions on which

the    district    court    relied——is      not   categorically        a   crime   of

violence.    Damon unsuccessfully moved to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255.               We hold that Damon's

claim is procedurally defaulted and therefore affirm the district

court's denial of his petition.

                                        I.

            On December 1, 2008, Damon pleaded guilty to possession

of a firearm by a felon in violation of 18 U.S.C. § 922(g).

Following Damon's guilty plea, the Probation Office prepared a

Presentence Report (PSR) that recommended a Guideline base offense

level of 24 under U.S.S.G. § 2K2.1(a)(2) on the basis of Damon's

prior Massachusetts convictions for possession of marijuana with

intent to distribute in 2005 and for assault and battery in 2006.1


       1
      Guideline 2K2.1(a)(2) provides a base offense level of 24 "if
the defendant committed any part of the instant offense subsequent
to sustaining at least two felony convictions of either a crime of

                                       -2-
                 In his objections to the PSR, Damon did not challenge the

designation of his assault-and-battery conviction as a crime of

violence, nor did he object to it at his sentencing on May 12,

2009.       At sentencing, following the PSR, the district court began

with a base offense level of 24, added two levels for the number of

firearms involved in the offense, and reduced by three levels for

acceptance of responsibility to arrive at a total offense level of

23   and     a    corresponding    Guideline    range   of   70       to   87   months'

imprisonment. The court sentenced Damon to 70 months' imprisonment

and three years' supervised release. Damon unsuccessfully appealed

his sentence to this court, but did not mount any challenge to the

district court's reliance on the Massachusetts assault-and-battery

conviction as a crime of violence. See United States v. Damon, 595

F.3d 395 (1st Cir. 2010).

                 Damon timely filed this section 2255 petition on February

14, 2011, not long after we, relying on the Supreme Court's

decision         in   Johnson,   held   in   Holloway   that      a    Massachusetts

conviction for assault and battery is not categorically a violent

felony.2      Damon accordingly contended in his petition that his base


violence or a controlled substance offense"; for defendants with
only one such conviction, section 2K2.1(a)(4) prescribes a base
offense level of 20.
        2
      Holloway involved the statutory definition of "violent
felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B). We recognized the ACCA term "violent felony" and the
Guideline term "crime of violence" as "nearly identical in
meaning," and stated that "decisions construing one term inform the

                                         -3-
offense level should have been 20, his total offense level 19, and

his resulting Guideline range 46 to 57 months.

           Agreeing    with   the    magistrate     judge's      recommended

decision, the district court denied Damon's petition on several

grounds,   including   that   Johnson     and   Holloway   did    not   apply

retroactively to cases on collateral review, that Damon's claim was

procedurally defaulted, and that Damon's claim of Guideline error

did not in any event allege a "complete miscarriage of justice"

cognizable under section 2255.       The district court certified the

following issues for appeal under 28 U.S.C. § 2253(c):

           (1) whether Mr. Damon's claims are procedurally
           defaulted; (2) whether Johnson applies retroactively; (3)
           whether a guideline miscalculation that results in a
           sentence within the proper statutory range satisfies the
           complete miscarriage of justice standard; (4) whether a
           claim of actual innocence may be based on a legal as
           opposed [to] factual error; and (5) whether in the
           circumstances of this case a seventy-month sentence
           represents a complete miscarriage of justice.

This appeal followed.

                                    II.

           The government no longer argues that Johnson does not

apply retroactively. Nevertheless, this concession does not change

the outcome.   Damon's acknowledged failure to object to the crime-

of-violence determination either at sentencing or on direct appeal

dooms his petition.



construction of the other."      Holloway,        630   F.3d     at   254   n.1
(citations and quotation marks omitted).

                                    -4-
          Section 2255 contemplates four potential bases on which

a federal prisoner may obtain relief:        (1) "that the sentence was

imposed in violation of the Constitution or laws of the United

States"; (2) "that the court was without jurisdiction to impose

such sentence"; (3) "that the sentence was in excess of the maximum

authorized by law"; or (4) that the sentence "is otherwise subject

to collateral attack." 28 U.S.C. § 2255(a). Damon does not allege

a constitutional error or lack of jurisdiction, nor did his 70-

month Guideline sentence exceed the ten-year statutory maximum

under 18 U.S.C. § 924(a)(2).        Accordingly, he challenges his

sentence under the portions of section 2255 granting relief from

sentences "in violation of the . . . laws of the United States" or

"otherwise subject to collateral attack."

          For non-constitutional, non-jurisdictional claims raised

in a section 2255 petition, the Supreme Court has stated that "the

appropriate inquiry [is] whether the claimed error of law [is] 'a

fundamental   defect    which   inherently    results   in   a   complete

miscarriage of justice,' and whether '(i)t . . . present(s)

exceptional circumstances where the need for the remedy afforded by

the writ of habeas corpus is apparent.'"       Davis v. United States,

417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S.

424, 428 (1962)).      In Knight v. United States, 37 F.3d 769, 773

(1st Cir. 1994), applying Hill's miscarriage-of-justice standard,

we cited several cases from other circuits concluding that "errors


                                  -5-
in the application of the sentencing guidelines . . . are not

cognizable under § 2255." But the petitioner's claim in Knight was

also barred by procedural default, and we explicitly declined to

"hold that an error in the application of the sentencing guidelines

could   never   constitute    a   'complete     miscarriage    of    justice'"

cognizable under section 2255.         Id. at 773-74.

            In recent years, a split has emerged between the Seventh,

Eighth, and Eleventh Circuits on this longstanding question.                    In

Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) (en banc),

the Eighth Circuit held that erroneous designation as a career

offender    cannot   be   challenged    under   section   2255      even   by    a

petitioner who raised the issue on direct appeal and avoided

procedural default.       The Seventh Circuit held the contrary in

Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), but later,

in Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013), opinion

supplemented on denial of reh'g, 724 F.3d 915 (7th Cir. 2013),

limited the holding of Narvaez to defendants sentenced before

United States v. Booker, 543 U.S. 220 (2005), made the Guidelines

advisory.    (Damon, like the petitioner in Hawkins, was sentenced

under the post-Booker advisory Guidelines regime.)            Most recently,

after the submission of briefs in this case, the Eleventh Circuit

disagreed with Hawkins and held in Spencer v. United States, No.

10-10676, 2013 WL 4106367 (11th Cir. Aug. 15, 2013), that erroneous




                                    -6-
career offender designation is cognizable under section 2255 even

in the case of a defendant sentenced after Booker.

           We need not here resolve the interesting question that we

left open in Knight and on which other circuits are divided.3

Instead, we hold that Damon's Guideline error claim, like that of

the petitioner in Knight, should have been brought on direct appeal

and is thus procedurally defaulted.

           Under the longstanding "procedural default" rule, "[a]

nonconstitutional claim that could have been, but was not, raised

on appeal, may not be asserted by collateral attack under § 2255

absent   exceptional   circumstances."   Knight,   37   F.3d   at   772

(citations omitted); see also United States v. Frady, 456 U.S. 152,

165 (1982) ("[A] collateral challenge may not do service for an

appeal." (citations omitted)). In such cases, "[w]here a defendant

has procedurally defaulted a claim by failing to raise it on direct

review, the claim may be raised in habeas only if the defendant can

first demonstrate either 'cause' and actual 'prejudice,' or that he

is 'actually innocent.'"    Bousley v. United States, 523 U.S. 614,

622 (1998) (citations omitted).    To be sure, the latter exception

may not even apply to claims of non-constitutional error in the


     3
      Moreover, we do not decide whether the reasoning of Spencer
and Narvaez in any event should be extended beyond misapplication
of the severe career offender Guideline to errors having less
substantial effects, like the one alleged here.       See, e.g.,
Spencer, 2013 WL 4106367, at *7 ("[E]rroneous career offender
categorization is not 'ordinary' or 'garden-variety' Guideline
error.").

                                  -7-
imposition of a non-capital sentence, an issue that we also do not

address today, since it is clear in any event that Damon's petition

does not qualify under either exception.4

          Damon first suggests that he had "cause" for not raising

the crime-of-violence challenge at sentencing and on direct appeal

because   then-binding   precedent    in   this   circuit   treated   a

Massachusetts assault-and-battery conviction as a categorical crime

of violence.   See United States v. Mangos, 134 F.3d 460, 464 (1st

Cir. 1998), abrogated by Holloway, 630 F.3d at 254-55.

          The Supreme Court considered and rejected a comparable

argument in Bousley, where the petitioner asserted that he had

cause for his procedural default because "the legal basis for his


     4
      The Supreme Court has applied the actual innocence exception
in cases involving constitutional error where the petitioners
alleged actual innocence of the crime of conviction, see Schlup v.
Delo, 513 U.S. 298, 321 (1995), or actual innocence of a capital
sentence, see Sawyer v. Whitley, 505 U.S. 333, 336 (1992), but the
Court has declined to address whether the exception also applies to
non-capital sentences, see Dretke v. Haley, 541 U.S. 386, 393
(2004). At least two circuits have extended the exception to non-
capital sentencing error.    See Spence v. Superintendent, Great
Meadow Corr. Facility, 219 F.3d 162, 171 (2d Cir. 2000); United
States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999).
(Mikalajunas, like this case, involved a non-constitutional claim
of Guideline error.) Two other circuits, on the other hand, have
limited it to capital sentences. See Embrey v. Hershberger, 131
F.3d 739, 740 (8th Cir. 1997) (en banc) ("[W]e think that Sawyer,
in terms, applies only to the sentencing phase of death cases.");
United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) ("A
person cannot be actually innocent of a noncapital sentence. . . ."
(citations omitted)). Like the Eleventh Circuit in McKay v. United
States, 657 F.3d 1190, 1198 (11th Cir. 2011), we may assume solely
for argument's sake in this case that the actual innocence
exception extends to non-constitutional Guideline errors in non-
capital sentencing.

                                -8-
claim was not reasonably available to counsel" at the time he

pleaded guilty. 523 U.S. at 622 (quotation marks omitted). Citing

its earlier decision in Reed v. Ross, 468 U.S. 1, 16 (1984), the

Supreme Court reiterated that in order to constitute cause for a

procedural default, a claim must be "so novel that its legal basis

is not reasonably available to counsel," and found the petitioner's

claim   lacking   in   novelty.   Id.   (quotation   marks   omitted).

Moreover, adverse precedent alone did not render the petitioner's

claim "unavailable": "[F]utility cannot constitute cause if it

means simply that a claim was unacceptable to that particular court

at that particular time."     Id. at 623 (quotation marks omitted)

(quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)).

           Damon's claim may have been futile under Mangos, but it

was not novel.    Much as the Bousley Court noted that "at the time

of petitioner's plea, the Federal Reporters were replete with

cases" raising the petitioner's allegedly "unavailable" claim, 523

U.S. at 622, so our decision in Holloway catalogued a number of

previous cases, all argued and decided prior to Damon's sentencing,

in which defendants had unsuccessfully challenged our holding in

Mangos.   See Holloway, 630 F.3d at 254 (citing United States v.

Rivera, 562 F.3d 1, 2 (1st Cir. 2009); United States v. Holloway,

499 F.3d 114, 118 (1st Cir. 2007); United States v. Estevez, 419

F.3d 77, 82 (1st Cir. 2005); United States v. Santos, 363 F.3d 19,

23 (1st Cir. 2004)).    Moreover, the Supreme Court had reshaped the


                                  -9-
definition of "violent felony" and "crime of violence"5 in the

years prior to Johnson.     See, e.g., Chambers v. United States, 555

U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James

v. United States, 550 U.S. 192 (2007).           Given both the evolving

Supreme   Court   caselaw   and   the   number   of   comparable,   albeit

unsuccessful, challenges raised by previous defendants, Damon did

not have cause for failing to raise the issue.            Cf. Lindsey v.

United States, 615 F.3d 998, 1000-01 (8th Cir. 2010) (rejecting

petitioner's argument that adverse circuit precedent was cause for

failing to argue that his DUI conviction was not a crime of

violence prior to the Supreme Court's decision in Begay).

           Assuming that the "actual innocence" exception is even

applicable in this context, Damon's argument that he is "actually

innocent" of his sentence fares no better.            Once again, Bousley

provides clarification: "It is important to note in this regard

that 'actual innocence' means factual innocence, not mere legal

insufficiency."    523 U.S. at 623 (citation omitted); see also,

e.g., McKay v. United States, 657 F.3d 1190, 1198-99 (11th Cir.

2011) ("[F]or the actual innocence exception to apply in the

noncapital sentencing context, a movant must show that he is

factually innocent of the conduct or underlying crime that serves

as the predicate for the enhanced sentence."); United States v.

Pettiford, 612 F.3d 270, 284 (4th Cir. 2010) ("[A]ctual innocence


     5
      See supra note 2.

                                   -10-
applies in the context of habitual offender provisions only where

the challenge to eligibility stems from factual innocence of the

predicate crimes, and not from the legal classification of the

predicate crimes." (citation omitted)).6          That is not the case

here. As the district court stated, "Mr. Damon makes no claim that

he is factually innocent of the underlying crime of assault and

battery . . . and there is no suggestion he was not validly

convicted"; nor was Damon "so unwise as to represent to the Court

that he did not do what is stated in the police report."         Damon has

not made a claim that is even colorably fact-based, such as that he

is factually innocent of the type of assault and battery that

qualifies as a crime of violence or that he was not convicted.

Because   Damon   contests   only   the    categorization   of   his   prior

conviction as a crime of violence, he has not pleaded "actual

innocence" as defined in Bousley.




     6
      Another Fourth Circuit case relied upon by Damon, United
States v. Maybeck, 23 F.3d 888 (4th Cir. 1994), is not to the
contrary.    The petitioner in Maybeck mistakenly informed his
Probation Officer that he had been previously convicted for armed
burglary (a crime of violence), when in fact he had only been
convicted for attempted third-degree burglary. The Fourth Circuit
excused the petitioner's procedural default because he was
"actually innocent of being a career offender." Id. at 892. But
as the Fourth Circuit later clarified in Pettiford, 612 F.3d at
283-84, Maybeck was a case of factual innocence in which the
petitioner was not convicted of the predicate crime of violence at
all.

                                    -11-
                                III.

            The appellant has not established a basis for excusing

his procedural default; we therefore affirm the denial of his

petition.    The mandate will issue forthwith without prejudice to

any petition for rehearing.   Any such petition shall be due on or

before October 10, 2013.




                                -12-
