finding issues not briefed on appeal by a pro se litigant are deemed abandoned
How later courts described this case
- finding issues not briefed on appeal by a pro se litigant are deemed abandoned
- holding that judicial decisions can sufficiently clarify an unclear statute and provide adequate notice that the individual’s conduct is criminal
- not- ing that several of this Circuit’s unpublished opinions, dating back to 2013, have held that a social security number is an “access de- vice”
Written by the judges who cited it.
The opinion
USCA11 Case: 19-14918 Date Filed: 11/29/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14918
Non-Argument Calendar
____________________
JAI DEVON LEE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket Nos. 7:19-cv-00030-HL,
7:15-cr-00006-HL-TQL-1
____________________
USCA11 Case: 19-14918 Date Filed: 11/29/2021 Page: 2 of 7
2 Opinion of the Court 19-14918
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Jai Devon Lee, proceeding pro se, appeals a district court
order denying his 28 U.S.C. § 2255 motion on the ground that his
challenge to the statute underlying his conviction was procedural-
ly defaulted. After careful review of the parties’ briefs and the rec-
ord, we affirm.1
I
Mr. Lee attempted to sell documents containing over 1,000
social security numbers and other personal information to an un-
dercover agent. A jury convicted him on three counts: (1) identity
theft, in violation of 18 U.S.C. § 1028(a)(7); (2) access device fraud,
in violation of 18 U.S.C. § 1029(a)(3); and (3) aggravated identity
theft, in violation of 18 U.S.C. § 1028A. At sentencing, the district
court dismissed the identity theft count on double jeopardy
grounds and sentenced Mr. Lee to 101-months’ imprisonment on
his convictions for the two remaining counts. Mr. Lee appealed
his convictions and sentence to this Court, raising a number of
claims—none of which are before us now. We rejected all of Mr.
Lee’s arguments and affirmed his convictions and sentence.
1We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision. As to issues not dis-
cussed, we summarily affirm.
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19-14918 Opinion of the Court 3
In February of 2019, Mr. Lee filed a § 2255 motion to va-
cate, set aside, or correct his sentence, setting out four separate
grounds for relief. As relevant here, Mr. Lee asserted that the
term “personal identification number,” as used in 18 U.S.C. §
1029(a)(3), is unconstitutionally vague and overbroad. That stat-
ute criminalizes the possession with intent to defraud of “fifteen
or more devices which are counterfeit or unauthorized access de-
vices.” A separate subsection of the statute explains that the term
“access device” includes “personal identification number[s].” §
1029(e)(1).
In the district court, Mr. Lee did not dispute that he failed
to raise his vagueness claim on direct appeal. Instead, he argued
that the term “personal identification number” in § 1029(e)(1) is
unconstitutionally vague and overbroad and should not be inter-
preted to include social security numbers. Because the statute
does not explicitly include social security numbers as “access de-
vices,” Mr. Lee asserted that social security numbers cannot quali-
fy as an access device under § 1029(e)(1).
The magistrate judge reviewed Mr. Lee’s motion and rec-
ommended that the district court find that Mr. Lee procedurally
defaulted on the vagueness and overbreadth claims by failing to
raise it on direct appeal and by failing to show cause and prejudice
or a miscarriage of justice. Mr. Lee objected to the magistrate
judge’s report and recommendation, asserting, among other
things, that the miscarriage of justice exception applied to his con-
stitutional claim and as such, it was not procedurally defaulted.
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4 Opinion of the Court 19-14918
The district court adopted the magistrate judge’s recommenda-
tions and denied Mr. Lee’s § 2255 motion.
Mr. Lee timely appealed and filed a motion for certificate
of appealability (“COA”) with this Court. We granted a COA on
one issue: whether the district court erred in determining that Mr.
Lee procedurally defaulted his claim that his statute of conviction
was unconstitutionally vague and overbroad by failing to raise it
on direct appeal. 2
II
We review a determination that a claim is subject to pro-
cedural default de novo. See Granda v. United States, 990 F.3d
1272, 1286 (11th Cir. 2021). Whether a criminal statute is uncon-
stitutionally vague is also reviewed de novo. See United States v.
Wayersky, 624 F.3d 1342, 1347 (11th Cir. 2010).
III
Under the procedural default rule, a defendant must ad-
vance an available challenge to a criminal conviction or sentence
on direct appeal or else be barred from presenting that claim in a
subsequent § 2255 proceeding. See Mills v. United States, 36 F.3d
2Although we liberally construe pro se pleadings (including § 2255 motions),
see Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014),
we are limited to reviewing only the issues identified in the COA. See McKay
v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). As such, Mr. Lee’s ar-
gument that his other jurisdictional claims were not procedurally barred is
not properly before us.
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19-14918 Opinion of the Court 5
1052, 1055 (11th Cir. 1994). This rule applies to constitutional
claims. See Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir.
2004).
A defendant may avoid procedural default by establishing
one of two exceptions: (1) cause for not raising the claim of error
on direct appeal and prejudice from the alleged error; or (2) a
fundamental miscarriage of justice. See id. A fundamental miscar-
riage of justice exists when “a constitutional violation has proba-
bly resulted in the conviction of one who is actually innocent.” Id.
The fundamental miscarriage of justice exception also applies if
the underlying statute of conviction is found to be void. See Mills,
36 F.3d at 1056.
As an initial matter, Mr. Lee does not dispute that he failed
to bring his vagueness and overbreadth claims on direct appeal.
Those claims, therefore, survive only if he meets one of the two
exceptions to the procedural default rule. See Lynn, 365 F.3d at
1234. Mr. Lee does not assert that the cause and prejudice excep-
tion applies to his claims. Accordingly, that argument is aban-
doned. See Timon v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(finding issues not briefed on appeal by a pro se litigant are
deemed abandoned).
Mr. Lee does, however, argue that the miscarriage of jus-
tice exception applies to his claims. Essentially, Mr. Lee asserts
that he is “actually innocent” of possessing personal identification
numbers because the term “personal identification number” as
used in § 1029(a)(3) and (e)(1) is unconstitutionally vague and
USCA11 Case: 19-14918 Date Filed: 11/29/2021 Page: 6 of 7
6 Opinion of the Court 19-14918
overbroad. This argument, and his overall claim, fail for two rea-
sons.
First, to meet the actual innocence exception, a defendant
must show “factual innocence, not mere legal insufficiency.”
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011). Mr.
Lee does not deny that he knowingly possessed the fraudulently
obtained social security numbers that underlie his conviction. Be-
cause Mr. Lee relies on a theory of purely legal innocence, the ac-
tual innocence exception does not apply to his procedurally de-
faulted claim. See id.
Second, even if Mr. Lee could assert that the miscarriage of
justice exception applies to his procedurally defaulted claim, his
substantive vagueness argument fails because we have repeatedly
held that “a social security number qualifies as a ‘personal identi-
fication number’ and thus as an access device under § 1029(e)(1).”
United States v. Wright, 862 F.3d 1265, 1275 (11th Cir. 2017) (not-
ing that several of this Circuit’s unpublished opinions, dating back
to 2013, have held that a social security number is an “access de-
vice”). See also United States v. Eckhardt, 466 F.3d 938, 944 (11th
Cir. 2006) (holding that judicial decisions can sufficiently clarify an
unclear statute and provide adequate notice that the individual’s
conduct is criminal).
Mr. Lee’s overbreadth challenge likewise fails because
§ 1029(a)(3) does not clearly prohibit a substantial amount of pro-
tected speech. See United States v. Dean, 635 F.3d 1200, 1204
(11th Cir. 2011). The statute criminalizes the possession of infor-
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19-14918 Opinion of the Court 7
mation that can be used to fraudulently access funds—it does not
directly implicate the First Amendment, nor does it appear to
sweep in any other protected speech. Because Mr. Lee’s vague-
ness and overbreadth challenges fail on the merits, he is unable to
show that his claim fits into an exception to the procedural default
rule. The district court, therefore, did not err in dismissing his
claim.
IV
Accordingly, we affirm the district court’s order denying
Mr. Lee’s 28 U.S.C. § 2255 motion.
AFFIRMED.