                                                                   [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                    FEBRUARY 21, 2012
                                No. 11-10319
                            Non-Argument Calendar                       JOHN LEY
                                                                         CLERK
                          ________________________

                      D.C. Docket Nos. 1:09-cv-20996-JLK,
                              1:01-cr-00233-SH-1

DURANE JOHNSON,

                                  llllllllllllllllllllllllllllllllllllllllPetitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                               llllllllllllllllllllllllllllllllllllllllRespondent-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________
                               (February 21, 2012)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

      Durane Johnson, a federal prisoner, appeals the denial of his 28 U.S.C.

§ 2255 motion to vacate his sentence, in which he argued that he was actually
innocent of being a career offender, because his prior offenses did not satisfy the

standard for crimes of violence or controlled substance offenses under U.S.S.G.

§ 4B1.2 and Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d

490 (2008). The district court granted a certificate of appealability (“COA”) on

the following two issues:

      (1)    Whether Johnson is actually innocent of being a career
             offender, because his prior conviction for manslaughter does
             not constitute a “crime of violence” under the career offender
             guideline; and

      (2)    Whether Johnson should have been permitted to amend his
             petition to include a challenge to his prior drug conviction
             based on the actual innocence doctrine.

      With respect to the district court’s denial of a § 2255 motion, we review

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

States, 657 F.3d 1190, 1195 (11th Cir. 2011). We review the denial of a request

for leave to amend a § 2255 motion for abuse of discretion. Farris v. United

States, 333 F.3d 1211, 1214 (11th Cir. 2003).

      Although the scope of our review is limited to the issues enumerated in the

COA, we must consider first any issue of procedural default. Id. A claim is

procedurally defaulted if the defendant failed to advance a challenge on direct

appeal. Id. at 1196. Procedural default may be excused, based on one of two

exceptions: (1) on a showing of cause for failing to raise the claim on direct appeal

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and actual prejudice from the error; or (2) for a miscarriage of justice or actual

innocence. Id.

      Under the actual innocence exception, the procedural default is excused if

the prisoner can show that he is actually innocent of the crime of conviction, or in

the capital sentencing context, of the sentence itself. Id. at 1196-97. In McKay,

we declined to extend the actual innocence exception to the procedural default rule

to the prisoner’s claim that he was erroneously sentenced as a career offender

because one of his prior convictions did not legally qualify as a crime of violence.

Id. at 1198. We reasoned that such a claim is “one of legal, rather than factual,

innocence and thus fails to fall within the actual innocence exception's purview.”

Id.

      Johnson’s claim that his manslaughter conviction does not qualify as a

crime of violence is subject to procedural default, because he failed to raise the

issue on direct appeal. Under McKay, Johnson cannot excuse this default by

asserting actual innocence of being a career offender based solely on the argument

that his manslaughter conviction does not satisfy the legal requirements for a

crime of violence. See id. at 1198. In fact, he acknowledges that his claims are

foreclosed by McKay in his reply brief filed with this Court.

      Similarly, Johnson’s argument that his prior drug conviction does not


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qualify as a controlled substance offense is procedurally defaulted and cannot be

excused based on a claim of legal innocence of being a career offender. Because

Johnson’s claim is procedurally barred, the district court did not abuse its

discretion in denying Johnson’s request to amend his § 2255 motion to challenge

his prior drug conviction.

      AFFIRMED.




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