                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-10361         ELEVENTH CIRCUIT
                                                                 NOVEMBER 17, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________
                                                                       CLERK

             D.C. Docket Nos. 9:08-cr-80094-DMM-2; 9:10-cv-80283-DMM



VIRGIL LEON DARVILLE,

llllllllllllllllllllllllllllllllllllllll                           Petitioner - Appellant,

                                                versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                          Respondent - Appellee.

                                     ________________________

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

                                           (November 17, 2011)

Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.

PER CURIAM:
       Pro se appellant Virgil Leon Darville appeals the district court’s dismissal

of the second claim (“Claim Two”) of his 28 U.S.C. § 2255 motion to vacate his

sentence.1 In Claim Two, Darville argued that his sentence enhancement based on

state court convictions was erroneous because Darville was in the process of

having those convictions vacated or expunged. Darville claims that the district

court’s dismissal was improper because it seriously hinders his ability to raise

Claim Two again, in the event that his state convictions are vacated or expunged;

namely, that his next attempt will be considered a “second or successive” motion

under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and

thus subject to stringent standards of consideration.2 Because we recently held in

Stewart v. United States that a § 2255 motion arising from the vacatur or

expungement of state convictions will not be considered “second or successive”

under AEDPA, we affirm the district court. 646 F.3d 856, 865 (11th Cir. 2011).


       1
           The entire motion was dismissed, but Darville appeals only Claim Two.
       2
        A § 2255 motion that has been declared “second” or “successive” may only be
considered by a court if it complies with gatekeeping provision of § 2255, which provides:
       A second or successive motion must be certified as provided in section 2244 by a panel of
       the appropriate court of appeals to contain—
              (1) newly discovered evidence that, if proven and viewed in light of the evidence
              as a whole, would be sufficient to establish by clear and convincing evidence that
              no reasonable factfinder would have found the movant guilty of the offense; or
              (2) a new rule of constitutional law, made retroactive to cases on collateral review
              by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).

                                                 2
      Darville was convicted of federal drug offenses on December 3, 2008, and

the government filed an information on that same day notifying Darville of its

intent to seek an enhanced penalty under 21 U.S.C. § 851, based on a prior state

felony narcotics conviction. The enhancement was granted, and it increased his

potential sentencing range from 10 to 40 years of imprisonment to 20 years to life

imprisonment. Darville acknowledged this change in his subsequent plea

agreement and plea hearing. On February 20, 2009, the district court sentenced

Darville to 240 months of imprisonment, and this conviction became final March

12, 2009.

      On February 9, 2010, Darville filed a timely motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255. Claim Two of this motion was that

his sentence enhancement under 21 U.S.C. § 851 was invalid because Darville was

pursuing vacation in state court of his prior narcotics convictions. Darville

acknowledged that because his challenges to the state convictions had not yet been

decided, Claim Two was not yet ripe, so he requested that the district court either

hold the claim in abeyance or dismiss it without prejudice and allow him to re-file

later when it ripened.

      The motion was referred to a magistrate judge who recommended, in

relevant part, that the motion to stay Claim Two should be denied and that Claim

                                          3
Two should be dismissed without prejudice. The magistrate noted in his report

that Darville might be barred from re-filing Claim Two because of the one-year

statute of limitations established by 28 U.S.C. § 2244(d) or other procedural

defenses. The district court then issued an order adopting the magistrate’s report.

Darville was issued a certificate of appealability (“COA”) by this court regarding

whether the district court erred in dismissing Claim Two without prejudice,

subject to any federal procedural limitations that may apply.

      We review the district court’s factual findings for clear error and questions

of law de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per

curiam). Our scope of review is limited to issues specified in the COA. Murray v.

United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998) (per curiam).

      In Stewart, the petitioner, Sherodney Stewart, had his prior state convictions

vacated, then filed a chronologically second § 2255 motion requesting vacatur of

his sentence enhancement based on his career-offender status. 646 F.3d at

857–58. In considering whether Stewart’s motion was second or successive under

AEDPA, we noted that Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571

(2005), had established that “the basis for a claim challenging a sentence

predicated on faulty state convictions arises when the order vacating those

predicate convictions issues.” 646 F.3d at 858–59 (citing Johnson 544 U.S. at

                                         4
305, 125 S. Ct. at 1579). We also explained that the phrase “second or

successive” did not “refer to all habeas applications filed second or successively in

time,” but was a “term of art that takes its full meaning from the Supreme Court’s

case law.” Id. at 859–60. We then pointed out that in Panetti v. Quarterman, 551

U.S. 930, 127 S. Ct. 2842 (2007), the Court declined to interpret “second or

successive” in a “manner that would require unripe (and, often, factually

unsupported) claims to be raised as a mere formality.” Id. at 863–65. Therefore,

we held that because the basis for Stewart’s claim did not exist at the time of the

ruling on Stewart’s initial § 2255 motion, his chronologically second claim was

not “second or successive” within the meaning of AEDPA.

      Darville contends that the district court’s actions have “effectively

prevented Mr. Darville from refiling” Claim Two, but his argument does not

account for the holding of Stewart. The precedent of Stewart establishes that if

Darville, acting diligently, succeeds in having his state convictions vacated or

expunged, then he may bring another § 2255 motion raising Claim Two without

having it be deemed “second or successive” within the meaning of AEDPA.

Because the only contention raised in Darville’s appeal—that the district court’s

actions prejudiced his rights to seek future relief—is unfounded, we affirm.

      AFFIRMED.

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