Petition for Writ of Certiorari — Vaughn Alexander Cropper, Petitioner v. United States

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Case: 2:22-cv-08018-AMM

Document #: 9-1

Date Filed: 02/13/2023

Page 1 of 26

FILED

2023 Feb-13 AM 10:44

U.S. DISTRICT COURT

N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VAUGHN ALEXANDER

CROPPER,

)

)

)

Petitioner,

)

)

v.

)

Case No.: 2:22-cv-8018-AMM

)

UNITED STATES OF

AMERICA,

)

)

)

Respondent.

)

ORDER

This case is before the court on Petitioner Vaughn Alexander Cropper’s

Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence. Doc. 1.

For the following reasons, Mr. Cropper’s motion is DENIED.

I.

BACKGROUND

On August 10, 2017, Mr. Cropper was sentenced to 188 months of

imprisomnent after being found guilty of a felon in possession of a firearm offense

in violation of 18 U.S.C. § 922(g)(1). See Judgment In A Criminal Case, United

States v. Cropper, No. 2:17-cr-30-AMM-GMB (N.D. Ala. Aug. 10, 2017), ECF No.

79. The following day, Mr. Cropper filed a notice of appeal of the conviction,

judgment, and sentence imposed. Notice Of Appeal, United States v. Cropper, No.

2:17-cr-30-AMM-GMB (N.D. Ala. Aug. 11, 2017), ECF No. 81. On May 4, 2020,

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the Eleventh Circuit affirmed Mr. Cropper’s conviction and sentence. Judgment,

United States v. Cropper, No. 2:17-cr-30-AMM-GMB (N.D. Ala. July 20, 2020),

ECF Nos. 117, 117-1. The Supreme Court denied Mr. Cropper’s petition for writ of

certiorari on May 24, 2021. See Cropper v. United States, 141 S. Ct. 2678 (2021).

On May 23, 2022, approximately one year after the Supreme Court denied

certiorari, Mr. Cropper filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside,

or Correct Sentence. Doc. 1. Almost a month after he filed that motion, Mr. Cropper

filed a brief in support. Doc. 3. On August 10, 2022, the court ordered the United

States “to appear and file its answer . . . within thirty (30) days from the date of [its]

order.” Doc. 4 at 2. Accordingly, the answer was due on or before September 9,

2022. On September 8, 2022, the day before the deadline to file the answer, the

United States filed a motion for a sixty-day extension of time to file a response, Doc.

5, but that motion was not ruled on and remains pending. The United States filed its

answer on September 23, 3022. Doc. 6. Mr. Cropper filed a reply on November 16,

2022. Doc. 8.

II.

LEGAL STANDARD

“A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the sentence was

Because Mr. Cropper did not object to the untimely filing of the answer in his reply, see Doc. 8,

the court will consider the arguments made by the United States in its response. Accordingly, the

pending motion for an extension, Doc. 5, is DENIED AS MOOT.

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imposed in violation of the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or correct the

sentence.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief, the court shall cause

notice thereof to be served upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact and conclusions of law with

respect thereto.” Id. § 2255(b).

“If the court finds that the judgment was rendered without jurisdiction, or that

the sentence imposed was not authorized by law or otherwise open to collateral

attack, or that there has been such a denial or infringement of the constitutional rights

of the prisoner as to render the judgment vulnerable to collateral attack, the court

shall vacate and set the judgment aside and shall discharge the prisoner or resentence

him or grant a new trial or correct the sentence as may appear appropriate.” Id.

III.

ANALYSIS

Mr. Cropper asserts two “groundfs] on which [he] claim[s] that [he is] being

held in violation of the Constitution, laws, or treaties of the United States.” Doc. 1

at 4. First, Mr. Cropper asserts that there is “[n]ew evidence [that] proves that two

of [his] ACC A-predicates actually arose from a single criminal episode and did not

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occur on different occasions.” Id. Second, Mr. Cropper asserts that “[t]he

Government withheld Brady material that helps to exculpate [him] from a sentence

enhancement under the [Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e),

(‘ACCA’ or ‘the Act’)].” Id. at 5. Mr. Cropper requests that the court grant him

“[r]esentencing without the enhancement under 18 U.S.C. § 924(e).” Doc. 1 at 12;

see also Doc. 3 at 15.

A. New Evidence

“It shall be unlawful for any person . . . who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one year . . ., to ship

or transport in interstate or foreign commerce, or possess in or affecting commerce,

any firearm or ammunition; or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).

Under the ACCA, “[i]n the case of a person who violates section 922(g). . . and has

three previous convictions by any court referred to in section 922(g)(1) ... for a

violent felony or a serious drug offense, or both, committed on occasions different

from one another, such person shall be fined ... and imprisoned not less than fifteen

years, and, notwithstanding any other provision of law, the court shall not suspend

the sentence of, or grant a probationary sentence to, such person with respect to the

conviction under section 922(g).” 18 U.S.C. § 924(e)(1) (emphasis added).

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According to Mr. Cropper, “[a]fter being convicted for being a Felon in

Possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), [his] sentence was

enhanced pursuant to the [ACCA] which is codified at 18 U.S.C. § 924(e).” Doc. 3

at 5. But, according to Mr. Cropper, “two of the three priors that were used as ACCA

predicates actually occurred at the same time and place during a single criminal

episode.” Id.

Mr. Cropper asserts that “[b]oth the indictment and the Presentence

Investigation Report (PSR) highlight the Government’s intent to use three specific

prior drug convictions to enhance [his] sentence under the [ACCA ]” and that “[a]ll

three predicates are convictions that were obtained on June 3, 2009, in the District

Court of Shelby County, Alabama under the following case numbers: DC2008-3747;

DC2008-4344; and DC2008-4345.” Doc. 1 at 4 (citing

Indictment and Presentence

/

Investigation Report, United States v. Cropper, No. 2:17-cr-30-AMM-GMB (N.D.

Ala. Jan. 25,2017 & August 10,2017), ECF Nos. 1 & 77). Specifically, Mr. Cropper

asserts “[t]he indictment lists the following prior convictions as predicates to trigger

the ACCA enhancement: First Degree Possession of Marijuana in Case No.

DC2008-3747; Unlawful Distribution of a Controlled Substance in Case No.

DC2008-4344; Unlawful Distribution of a Controlled Substance in Case No.

DC2008-4345.” Doc. 3 at 5; see also id. at 24-25. Mr. Cropper further asserts that

“[t]he [PSR], while referring to Case No. DC2008-3747 as Docket No. CC20095

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00812, emphasizes the Government’s intent to use the three prior convictions listed

in the indictment as predicates for ACCA enhancement.” Id. at 5-6; see also id. at

32-37. Mr. Cropper asserts that “the PSR subsequently explains that the conviction

in Docket No. CC2009-00812 was obtained under Case No. DC2008-3747.” Id. at

6©According to Mr. Cropper, “[w]hen analyzing the charging information . . . , it

appears that the offense in Case No. DC2008-3747 occurred on February 22, 2007.”

Id.; see also id. at 44.

Mr. Copper asserts that “the information in DC2008-3747, which charges

[Mr.] Cropper with violating section 13A-12-213 of the Alabama Code . . . , is

erroneous with respect to the date of the offense.” Id. at 6 (emphasis omitted).

Specifically, Mr. Cropper asserts that he was convicted of “First Degree Possession

of Marijuana ... in the Circuit Court of Shelby County, Alabama under Case No.

YO-07-865,” and that “[t]he information in [that c]ase . . . charges that [he]

unlawfully possessed marijuana, in violation of [Alabama Code] § 13A-12-213, on

February 22, 2007.” Id. at 6-7; see also id. at 68-78. Mr. Cropper asserts that “the

information in Case No. DC2008-3747 also charges that [he] unlawfully possessed

marijuana, in violation of [Alabama Code] § 13A-12-213, on February 22, 2007.”

©The PSR provides that in Docket No. CC2009-00812 Mr. Cropper pled guilty to Possession of

Marijuana 1st Degree, and notes that Mr. Cropper “was convicted . . . under Case No. DC20083747” because the Circuit Clerk of Shelby County was ordered to “assign a Circuit Court case

numbeif] to pending district court cases[] in which a plea is entered at the district court level.”

Doc. 3 at 34-35. Accordingly, it appears that Docket Nos. CC2009-00812 and DC2008-3747 can

be used interchangeably.

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Id. at 7; see also id. at 44. According to Mr. Cropper, “when comparing the charging

information in YO-07-865 versus the charging information in DC2008-3747, it

becomes evident that [he] was convicted twice for an unlawful possession of

marijuana, in violation of [Alabama Code] § 13A-12-213, that occurred on February

22, 2007.” Id. at 7. Mr. Cropper further asserts that, in a brief filed in the Court of

Criminal Appeals of Alabama, “the State of Alabama admitted that the offense in

DC2008-3747 actually occurred on September 19, 2008, and that the charging

information in DC2008-3747 contains a ‘clerical error’ regarding the stated date of

February 22, 2007.” Id. at 8; see also id. at 98-99. Mr. Cropper thus asserts that “the

conviction in DC2008-3747 is either double jeopardy, or the charging information

in DC2008-3747 contains a ‘clerical error’ with respect to the date of the offense.”

Id. at 7^>

According to Mr. Cropper, because “it is . . . established . . . that the offense

in DC2008-3747 actually occurred on September 19, 2008, it is easy to see that two

of the three ACCA-predicate offenses occurred during a single occasion.” Id. at 9.

Specifically, Mr. Cropper asserts that “Case No. DC2008-4345 charges [him] with

distributing marijuana on September 19, 2008 . . . [; t]therefore, [he] committed the

offense of distributing marijuana in DC2008-4345 on the same day he committed

® Mr. Cropper concedes that he “raised the double jeopardy claim on direct appeal from the . . .

federal conviction and sentence” and that “[t]he Eleventh Circuit concluded that [he] could not

collaterally attack his prior state conviction on double jeopardy grounds.” Doc. 3 at 8; see also id.

at 87-89.

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the offense of unlawfully possessing marijuana in Case No. DC2008-3747.” Id.; see

also id. at 117-20. Mr. Cropper thus asserts that “the offenses of First Degree

Possession of Marijuana in Case No. DC2008-3747, and Unlawful Distribution of a

Controlled Substance in Case No. DC2008-4345, both occurred on September 19,

2008, at the same time and place during a single criminal episode.” Doc. 1 at 4; see

also Doc. 3 at 11. Specifically, according to Mr. Cropper, “[o]n September 19,2008,

while inside of his home at 196 Creekstone Trail in Calera, Alabama, [he] sold seven

(7) grams of marijuana out of a larger stash of marijuana that he unlawfully

possessed.” Doc. 3 at 13. Mr. Cropper asserts that “[t]his . . . one event

encompass[ed] both offenses[]” in Case Nos. DC2008-3747 and DC2008-4345. Id.

Mr. Cropper argues that, “[w]hen considering the true fact that the offenses

charged in Case Nos. DC2008-3747 and DC2008-4345 occurred on the same day,

and recapping the event that led to those charges, it is clearly evident that said

offenses occurred during a single occasion.” Id. Mr. Cropper further argues that the

two “offenses constitute a single criminal episode qualifying as one predicate for

ACCA enhancement purposes[;] . . . [t]hus, the Government has only a total of two

ACCA predicates to rely upon.” Id. at 15.

Further, Mr. Cropper argues that “[t]he evidence used by the Government

must be reliable and specific evidence^]” but the charging instrument in Case No.

DC2008-3747 is “erroneous” and “unreliable” because “it contains a clerical error.”

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Id. at 11-12 (cleaned up). Mr. Cropper further argues that “information contained in

. . . a PSR must also be based on reliable and specific evidence,” but “[t]he

information at paragraph 32 of [his] PSR derived from the faulty charging instrument

of Case No. DC2008-3747.” Id. at 12 (cleaned up). According to Mr. Cropper,

“[bjecause paragraph 32 of the PSR derived from erroneous information, it must be

corrected and the entire PSR must be adjusted accordingly.” Id. Further, according

to Mr. Cropper, “[t]he clerical error is causing [him] to serve a sentence

approximately six (6) years above the statutory maximum prescribed for his

offensef]” because it “has caused [him] to be wrongly subjected to a sentence

enhancement under § 924(e)(1) which carries a mandatory minimum of fifteen (15)

years imprisonment.” Id. (cleaned up). According to Mr. Cropper, “the clerical error

is a ‘fundamental defect which inherently resulted in a complete miscarriage of

justice’ and ‘presents exceptional circumstances that justify relief’ under 28 U.S.C.

§ 2255.” Id. at 13 (quoting Davis v. United States, 417 U.S. 333, 346-47 (1974))

(cleaned up).

Mr. Cropper asserts that he did not raise this issue of the alleged clerical error

in Case No. DC2008-3747 in in his direct appeal of the judgment of conviction

because “[a]t the time, [he] lacked a key piece of evidence to sufficiently support

this claim; and . . . [he] withheld this issue to meet the 30-page limit requirement

ordained by [Federal Rule of Appellate Procedure] 32(a)(7)(A).” Doc. 1 at 4.

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According to Mr. Cropper, the State of Alabama’s brief in the Court of Criminal

Appeals, see Doc. 3 at 94-105, “did not exist” at the time his direct appeal was

decided, id. at 16. Mr. Cropper asserts that such brief “is evidence that is necessary

to supplement [other] . . . source[s] in proving the inaccuracy [of the charging

instrument in Case No. DC2008-3747].” Id. at 17. According to Mr. Cropper,

“[w]ithout [that brief] to supplement the charging instrument of YO-07-865 . . . ,

[he] had no other . .. documents to support this ‘clerical error’ claim.” Id.

Mr. Cropper further asserts that he raised the issue of the alleged clerical error

in the district court on a “Motion to Review and Revoke Magistrate’s Detention

Order” and the court granted de novo review of the magistrate judge’s detention

order, “but release pending the outcome of appeal was denied.” Doc. 1 at 4; see also

id. at 13-29. Mr. Cropper asserts that he appealed that denial and raised the issue of

whether his “ACCA-predicates actually arose from a single criminal episode” in that

appeal, but the Eleventh Circuit denied his appeal. Id. at 4-5.

The United States responds that, even though the State of Alabama’s brief in

the Court of Criminal Appeals “concedes a clerical error in the information as to one

of his cases, the Alabama Court of Criminal Appeals made no such finding, having

dismissed his petition on procedural grounds,” and that “the claim [Mr.] Cropper . .

. raises is not cognizable under § 2255 and is procedurally barred.” Doc. 6 at 5-6.

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As to the argument that Mr. Cropper’s claim is not cognizable under Section

2255, the United States asserts that “claims of non-constitutional error are not

cognizable on collateral review.” Id. at 6. Further, according to the United States,

“with the sole exception of convictions obtained in violation of the right to counsel,

a defendant in a federal sentencing proceeding may not collaterally attack his prior

state convictions that served as the predicate offenses for an enhancement.” Id.

As to the argument that Mr. Cropper’s claim is procedurally barred, the United

States asserts that Mr. Cropper’s claim “was available to him on direct appeal and

was either raised[] and denied by the Eleventh Circuit, or [such claim was] not

pursued.” Id. First, the United States asserts that “[t]he Eleventh Circuit opinion in

[Mr. Cropper’s] case was clear—other than a violation of his right to counsel, [Mr.]

Cropper cannot collaterally attack his prior state convictions.” Id. at 8. The United

States thus asserts that Mr. Cropper’s “present challenge to his qualifying

convictions is procedurally barred by the Eleventh Circuit’s decision in his case.”

Id. According to the United States, “[w]hen a prisoner raises a claim that has been

decided on direct review, he ordinarily cannot later attempt to relitigate that claim in

a Section 2255 proceeding.” Id. at 7.

Second, the United States asserts that, “[e]ven if [Mr.] Cropper’s present

claim was not decided on direct appeal, it remains procedurally defaulted.” Id. at 8.

According to the United States, “the general rule [is] that claims not raised on direct

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appeal may not be raised on collateral review.” Id. Further, according to the United

States, “[hjaving failed to raise his .. . claim on direct appeal, [Mr.] Cropper faces a

.

heightened threshold for having it considered in a Section 2255 proceeding.” Id.

The Eleventh Circuit has observed that, “[u]nder the procedural default rule,

a defendant generally must advance an available challenge to a criminal conviction

or sentence on direct appeal or else the defendant is barred from presenting that claim

in a § 2255 proceeding.” Lynn v. United States, 365 F.3d 1225,1234 (11th Cir. 2004)

(per curiam). The procedural default “rule generally applies to all claims, including

constitutional claims.” Id. “A defendant can avoid a procedural bar only by

establishing one of the two exceptions to the procedural default rule[:]” (1) “Under

the first exception, a defendant must show cause for not raising the claim of error on

direct appeal and actual prejudice from the alleged error[]”.; and (2) “Under the

second exception, a court may allow a defendant to proceed With a § 2255 motion

despite his failure to show cause for procedural default if a constitutional violation

has probably resulted in the conviction of one who is actually innocent.” Id. (cleaned

up).

As to the first exception, “[i]n procedural default cases, the question is not

whether legal developments or new evidence has made a claim easier or better, but

whether at the time of the direct appeal the claim was available at all.” Id. at 1235.

“[T]o show cause for procedural default, [the defendant] must show that some

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objective factor external to the defense prevented [him] or his counsel from raising

his claims on direct appeal and that this factor camiot be fairly attributable to [his]

own conduct.” Id. Further, the second “exception is exceedingly narrow in scope as

it concerns a petitioner’s ‘actual’ innocence rather than his ‘legal’ innocence.” Id. at

1235 n.18 (cleaned up). “‘Actual innocence’ means factual innocence, not mere legal

innocence.” Id. (cleaned up).

The United States asserts that Mr. “Cropper does not and cannot demonstrate

that he is actually innocent of the charge of which he stands convicted.” Doc. 6 at

10. The United States also asserts that Mr. Cropper “cannot avoid the procedural bar

through the miscarriage of justice exception” because “his claim could have been

raised on direct appeal and has not resulted in a complete miscarriage ofjustice.” Id.

Further, the United States asserts that Mr. Cropper “cannot avoid the procedural

default concerning his claims” because he “fails to allege, much less demonstrate,

cause for or prejudice from his failure to raise his claim on direct appeal.” Id.

Mr. Cropper replies that “the Government either misunderstands, or has

disregarded the context of[] both[ his] appellate double-jeopardy argument and the

Eleventh Circuit’s opinion regarding said argument.” Doc. 8 at 6. According to Mr.

Cropper, his “double-jeopardy claim on direct appeal attacked the validity of the

prior state conviction itself, the judgment in Case No. DC2008-3747, in order to

effectuate the invalidity of the ACCA enhancement that was applied to his federal

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sentence.” Id. at 7. According to Mr. Cropper, the Eleventh Circuit held that his

“federal sentencing court could not have deemed void the judgment of his prior state

conviction unless his state conviction was obtained in violation of his right to

counsel,” which “determination would bar [him] from using 28 U.S.C. § 2255 to

relitigate his double-jeopardy claim and attack the validity of his prior state

conviction.” Id. at 8. But, according to Mr. Cropper, such determination “does not

expressly bar [him] from raising a different claim to challenge his sentence via §

2255.” Id. at 8-9.

Mr. Cropper asserts that his “instant claim does not attack the validity of the

prior state conviction,” as he concedes that “the conviction itself is legitimate.” Id.

at 9. Mr. Cropper asserts that he “merely asks that this Honorable Court (1)

acknowledge the fact that the date of [the] offense stated in the charging information

of Case No. DC2008-3747 is a clerical error; and (2) consider the actual date of that

offense in correlation with the date of offense in Case No. DC2008-4345.” Id. Mr.

Cropper further asserts that his “instant claim shows that [his] ACCA sentence

enhancement does not comport with the laws of the United States, namely, 18 U.S.C.

§ 924(e)(1)”/./.

Further, Mr. Cropper replies that his “instant claim is based on new evidence

that was not available to him at the time of his direct appeal.” Id. at 10. The “new

evidence” to which Mr. Cropper refers, see id., is a brief submitted by the State of

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Alabama in the Court of Criminal Appeals of Alabama on November 16, 2020, in

which the State of Alabama concedes that “[i]t appears a clerical error occurred on

[Mr.] Cropper’s intent to plead to information in DC-08-3747 with the date of

February 22, 2007 being stated, which did not match the date on the complaint in

DC-08-3747 of September 19, 2008, on which the crime occurred[,]” Doc. 3 at 94.

99. According to Mr. Cropper, “[b]ecause said evidence came into existence

subsequent to the conclusion of [his] direct appeal, [he] could not have pursued the

instant claim on direct appeal.” Doc. 8 at 11. Also, according to Mr. Cropper, “the

merits of [his] instant claim could not have been reviewed on direct appeal without

‘further factual development’ . . . [; therefore, the ‘ground of error’ was not

‘available’ to him on direct appeal.” Id. at 11-12 (quoting Mills v. United States, 36

F.3d 1052, 1055 (11th Cir. 1994)). Mr. Cropper thus asserts that “[t]he fact that the

new evidence did not exist at the time of [his] direct appeal establishes cause for him

not pursuing the clerical-error claim at that time, and he has shown the actual

prejudice that has resulted from the clerical error.” Doc. 8 at 12.

Mr. Cropper also replies that the United States does not “argue that the two

ACCA-predicates in question occurred on ‘occasions different from one another.’”

Id. (quoting 18 U.S.C. § 924(e)(1)). According to Mr. Cropper, he is “actually

innocent of being an Armed Career Criminal” because, “[i]f it were not for the

clerical error, the Government would have lacked the prerequisite predicates to

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pursue a sentence enhancement under 18 U.S.C. § 924(e).” Doc. 8 at 13. According

to Mr. Cropper, “[t]he miscarriage of justice exception applies where a movant is

actually innocent of the crime of which he was convicted or the penalty which was

imposed.” Id. (cleaned up). Mr. Cropper asserts that “the actual prejudice that has

resulted in a miscarriage ofjustice” is that “[t]he clerical error creates the semblance

that [he] qualifies for ACCA enhancement when he actually ... does not.” Id. at 14.

Mr. Cropper further asserts that “the clerical error has caused a grossly unfair

outcome in [his] sentencing proceeding by subjecting him to an excessive sentence

which is unjustly depriving him of his right to liberty, in violation of the Fifth

Amendment’s Due Process Clause.” Id.

Finally, Mr. Cropper asserts that “this claim shows that [his] entire sentencing

was prejudiced by the clerical error, which is why a plenary sentencing hearing is

necessary.” Id. at 15. Mr. Cropper asserts that “[significant portions of [his]

presentence report were derived from erroneous information due to this clerical

error, which resulted in [him] receiving an excessive sentence.” Id. Mr. Cropper thus

asserts that “the clerical error certainly presents exceptional circumstances where

[the] need for postconviction relief is apparent, even if, somehow, it is not deemed

a miscarriage of justice.” Id. (cleaned up).

The court need not address the merits of Mr. Cropper’s claim because such

claim is barred by the procedural default rule, which provides that “a defendant

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generally must advance an available challenge to a criminal conviction or sentence

on direct appeal or else the defendant is barred from presenting that claim in a § 2255

proceeding.” Lynn, 365 F.3d at 1234. Mr. Cropper did not bring his claim on direct

appeal and has not established an exception to the procedural default rule.

Mr. Cropper has not established that he can avoid procedural default by

showing cause for not raising the claim on direct appeal and actual prejudice from

the alleged error. Mr. Cropper asserts that he did not raise this issue in in his direct

appeal because the State of Alabama’s brief in the Court of Criminal Appeals, see

Doc. 3 at 94-105, “did not exist” at that time, id. at 16. That brief admitted that there

appears to be a clerical error regarding the date of the offense, but the correct date

of the offense is something that Mr. Cropper has always known. Because Mr.

Cropper has always known the date of the offense, as he was present on that date,

the State’s admission in an appellate brief of an incorrect date in his plea agreement,

id. at 44, is not cause for his failure to raise the issue on appeal.

Mr. Cropper further asserts that he “only had the judicial records of his prior

convictions that the Government submitted in its discovery disclosure . . . and the

judicial records of Case No. YO-07-865 ... at his disposal.” Id. at 16; see also id. at

41-66. But the judicial records he concedes were submitted by the Government

indicate that the offense in DC2008-3747 occurred on September 19, 2008, as

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opposed to February 22, 2007. See id. at 42. Accordingly, his argument that this

claim was unavailable to him at the time of his direct appeal is unconvincing.

Further, Mr. Cropper’s argument that he “withheld this issue to meet the 30page limit requirement ordained by [Federal Rule of Appellate Procedure]

32(a)(7)(A),” Doc. 1 at 4, implicitly concedes that he was aware of the claim at the

time of him appeal, but chose not to include it in his brief to meet the Eleventh

Circuit’s page requirements.

Mr. Cropper also has not established that “a constitutional violation has

probably resulted in the conviction of one who is actually innocent,” Lynn, 365 F.3d

at 1234 (cleaned up), as he does not argue that he is actually innocent of the charge

underlying his conviction—felon in possession of a firearm. See Docs. 3 & 8. Rather,

Mr. Cropper argues that he is “actually innocent of being an Armed Career Criminal”

because “the Government. . . lacks the prerequisite three ACCA-predicates that are

required to sustain the ACCA enhancement.” Doc. 8 at 13. “Neither the Supreme

Court nor th[e Eleventh Circuit] ha[ve] yet ruled on whether [a petitioner’s] actual

innocence of sentence exception extends to the noncapital sentencing context.”

McKay v. United States, 657 F.3d 1190; 1197 (11th Cir. 2011). “Even assuming that

this exception does extend beyond the capital sentencing context, it still [would] not

apply to [a defendant whose] claim is one of legal, rather than factual, innocence . .

. rid. at 1198.

18

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Here, Mr. Cropper asserts that he “does not attack the validity of the prior

state conviction” and “admits that he unlawfully possessed marijuana on September

19, 2008, and that he pled guilty to that offense in Case No. DC2008-3747.” Doc. 8

at 9. Mr. Cropper argues that he is actually innocent of his ACCA-enhancement on

the ground that his prior conviction of possession of marijuana (Case No. DC20083747) occurred at “the same time and place” as his conviction of distribution of

marijuana (Case No. DC2008-4345) and “that said offenses constitute a single

criminal episode qualifying as one predicate for ACCA enhancement purposes.”

Doc. 3 at 15.

Because “the Supreme Court and [the Eleventh Circuit] repeatedly have

emphasized that circumstances meriting the consideration of procedurally defaulted

or barred constitutional claims are ‘extremely rare’ and apply only in the

‘extraordinary case,’” Rozzelle v. Sec’y, Fla. Dep ’t ofCorrs., 672 F.3d 1000, 1015

(11th Cir. 2012) (per curiam), the court cannot allow Mr. Cropper to proceed with

his Section 2255 under this exception. If this is a truly extraordinary case, then it is

for the Eleventh Circuit, not this court, to expand the list of exceptional

circumstances meriting the consideration of procedurally defaulted claims.

Accordingly, Mr. Cropper’s Section 2255 motion is DENIED under the

procedural default rule.

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B. Brady Violation

The Supreme Court has held “that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). “Evidence

is material, i.e., prejudicial, if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.” Rodriguez v. Sec ’y, Fla. Dep’t of Corrs., 756 F.3d 1277, 1303 (11th Cir.

2014) (cleaned up). “Brady requires a showing that the result would have been

different had the prosecution disclosed the withheld evidence . . . .” Id. (emphasis

omitted).

According to Mr. Cropper, “[t]he Government was ordered to disclose any of

[his] arrest and conviction records, or other evidence that may qualify as Brady

material.” Doc. 1 at 5. Further, according to Mr. Cropper, “[t]he judicial records of

Case No. Y0-07-865 qualify as material evidence favorable to [Mr.] Cropper on the

issue of punishment and could have been obtained by the Government through the

exercise of due diligence[,]” but “said judicial records were suppressed by the

Government.” Id. (emphasis omitted); see also Doc. 3 at 18. According to Mr.

Cropper, “the charging information in Case No. YO-07-865 is [an] essential judicial

record that exposes an error regarding the stated date of February 22, 2007 as the

20

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date of [the] offense in the charging information of Case No. DC2008-3747.” Doc.

3 at 18. Further, Mr. Cropper asserts that “the revelation of YO-07-865 create[d] a

reasonable doubt that was previously nonexistent regarding [his] status as an Armed

Career Criminal.” Id.

Mr. Cropper also asserts that “the judicial records of Case No. YO-07-865 are

a part of [his] arrest and conviction records, the existence of which should have been

known by the Government through the exercise of due diligence, and qualify as

material evidence favorable to [him] on the issue of punishment.” Id. Mr. Cropper

thus asserts that “the judicial records of YO-07-865 should have been furnished by

the Government” and that, “[h]ad the Government done so, the ‘clerical error’ may

have been detected before trial, which would have allowed [his] defense counsel to

negotiate a suitable plea agreement to serve a sentence well under the 15-year

mandatory minimum ordained by 18 U.S.C. § 924(e)(1).” Id. at 18-19. Mr. Cropper

further asserts that, “[h]ad the Government not pursued the ACCA enhancement,

[he] would have been more inclined to plead guilty” and “would not have gone to

trial pro se out of desperation.” Id. at 19. According to Mr. Cropper, “the outcome

of [his] sentencing proceeding would have been different had the ‘clerical error’

been detected earlier as a result of the Government’s full compliance with the

discovery order.” Id. Accordingly, Mr. Cropper asserts that “the Government . . .

violated [Federal Rule of Criminal Procedure] 16(a)(1)(D) and [Mr.] Cropper’s 5th

21

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Amendment due process rights,” Doc. 1 at 5, “by failing to disclose exculpatory

evidence regarding [his] susceptibility to enhancement under 18 U.S.C. § 924(e)(1),”

Doc. 3 at 19-20.

Mr. Cropper asserts that he raised this issue on appeal “[i]n supplement to the

double jeopardy issue raised on appeal[]” and that “[t]he appellate court failed to

address this issue.” Doc. 1 at 5. Further, Mr. Cropper asserts that he raised the issue

in a “Motion for a New Trial.” Id. at 6. On August 10, 2022, the district court denied

the motion for a new trial. See Order, United States v. Cropper, No. 2:17-cr-30AMM-GMB (N.D. Ala. August 10, 2022), ECFNo. 121.

The United States responds that, “[although [Mr. Cropper] styles an alleged

Brady violation as a second claim on collateral attack, his discovery violation claim

is dependent upon and subsumed within his single claim.” Doc. 6 at 5 n.2. According

to the United States, “[t]he document [Mr. Cropper] claims to have not received was

from a sealed juvenile record, which is not available to the United States upon

request.” Id. Further, according to the United States, Mr. Cropper “could have

obtained his juvenile record, [but] it was not available to the United States, and thus,

was not within its possession.” Id. The United States asserts that even if such record

was available to the United States, Mr. Cropper’s “juvenile record would not have

resolved any alleged ‘clerical error’ in his ACCA predicate conviction.” Id.

22

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Mr. Cropper did not reply to the arguments in the response of the United States

regarding Brady violations. See Doc. 8.

The court does not agree that “the charging information in Case No. YO-07865 is [an] essential judicial record that exposes an error regarding the stated date of

February 22, 2007 as the date of [the] offense in the charging information of Case

No. DC2008-3747.” Doc. 3 at 18. Mr. Cropper does not establish that, had the

charging information in Case No. YO-07-865 been disclosed to him, the result of his

sentencing would have been any different. Indeed, the judicial records Mr. Cropper

concedes he was provided by the United States before his direct appeal, see id. at 16;

see also id. at 41-66, and his Presentence Investigation Report, id. at 26-39, show

that there were discrepancies in the date of the offense in Case No. DC2008-3747

even without the charging information in YO-07-865. Specifically, those records

show: (1) The PSR provides that Mr. Cropper was arrested on September 19, 2008

for the offense in Case No. DC2008-3747, and that the “Information charged that on

or about February 22, 2007, the defendant unlawfully possessed marijuana for other

than personal use,” id. at 34-35; (2) The PSR provides that Mr. Cropper was arrested

on February 22, 2007 for a drug possession offense in a case with an unknown case

number, id. at 38; (3) The judicial records for Case No. DC2008-3747 provide that

the offense occurred on September 19, 2008, id. at 42, and (4) The judicial records

23

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for Case No. DC2008-3747 provide that Mr. Cropper possessed marijuana on or

about February 22, 2007, id. at 44.

Because Mr. Cropper has not established that the charging information in YO07-865 is material to his conviction or sentence, his Section 2255 claim for an

alleged Brady violation is DENIED.

C. Certificate of Appealability (“COA”)

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides:

The district court must issue or deny a certificate of appealability when

it enters a final order adverse to the applicant. Before entering the final

order, the court may direct the parties to submit arguments on whether

a certificate should issue. If the court issues a certificate, the court must

state the specific issue or issues that satisfy the showing required by 28

U.S.C. § 2253(c)(2). If the court denies a certificate, a party may not

appeal the denial but may seek a certificate from the court of appeals

under Federal Rule of Appellate Procedure 22. A motion to reconsider

a denial does not extend the time to appeal.

Rule 11(b) provides that “Federal Rule of Appellate Procedure 4(a) governs the time

to appeal an order entered under these rules[, a] timely notice of appeal must be filed

even if the district court issues a certificate of appealability [, and tjhese rules do not

extend the time to appeal the original judgment of conviction.”

Further, Federal Rule of Appellate Procedure 22(b)(1) provides that, “in a 28

U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice

or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §

2253(c).” Further, “[a] certificate of appealability may issue . .. only if the applicant

24

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has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). “The certificate of appealability . . . shall indicate which specific issue

or issues satisfy the showing required by paragraph (2).” 28 U.S.C. § 2253(c)(3).

To establish a substantial showing of the denial of a constitutional right, a

petitioner must demonstrate “that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (cleaned up). “[Ijssuance

of a COA must not be proforma or a matter of course.” Id. at 337.

“‘When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should issue

when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.’” Lambrix v. Sec ’y, Fla. Dep’t ofCorrs., 851 F.3d 1158, 1169

(11th Cir. 2017) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (emphasis

omitted). Accordingly, “when a COA request concerns a procedural ruling, the

required showing must include both the procedural issue and the constitutional

issue.” Lambrix, 851 F.3d at 1169.

25

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The issue of whether Mr. Cropper’s case is truly extraordinary and requires

the consideration of procedurally defaulted claims is reasonably debatable.

Accordingly, a certificate of appealability is GRANTED as to that issue.

IV.

CONCLUSION

For the foregoing reasons, Mr. Cropper’s Motion Under 28 U.S.C. § 2255 To

Vacate, Set Aside, or Correct Sentence, Doc. 1, is DENIED. The Clerk of Court is

DIRECTED to terminate the pending motions in Case No. 2:17-cr-30-AMM-GMB1.

DONE and ORDERED this 13th day of February, 2023.

ANNA MJ\IaNASCO

UNITED STATES DISTRICT JUDGE

26

,* “B ‘

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[DO NOT PUBLISH]

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UtlEirntf} GItrarit

No. 23-10701

Non-Argument Calendar

VAUGHN ALEXANDER CROPPER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA.

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:22-cv-08018-AMM

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Opinion of the Court

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Before Rosenbaum Jill Pryor, and Branch, Circuit Judges.

PER CURIAM:

Vaughn Cropper, a federal prisoner proceeding pro se, ap­

peals the district court's denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence of 188 months’ imprison­

ment on the ground that his claim was procedurally defaulted. Af­

ter careful review, we affirm.

I.

A jury found Cropper guilty of one count of possession of a

* firearm by a person previously convicted of a feiony, in violation

of 18 U.S.C. § 922(g)(1).1 In anticipation of sentencing, a probation

officer prepared a presentence investigation report (“PSR”). In the

report, the officer determined that Cropper was subject to the 15year mandatory minimum sentence in the Armed Career Criminal

Act (“ACCA”), because he had three prior serious drug offenses

“committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). The offenses were an Alabama conviction for first-de­

gree marijuana possession, for which he was arrested on Septem­

ber 19, 2008; and two Alabama convictions for unlawful distribu­

tion of a controlled substance (marijuana), for which he was ar­

rested on November 16, 2008. The PSR noted that the marijuana

1 Cropper waived his right to counsel pre-trial and proceeded pro se through­

out the district court proceedings and on appeal. See United States v. Cropper,

812 F. App’x 927, 928 (11th Cir. 2020) (unpublished).

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3

possession offense was committed on or about February 22, 2007,

and the two distribution convictions stemmed from unlawful con­

duct committed on two different occasions—the first on or about

September 12, 2008, and the second on or about September 19,

2008.

Cropper objected to the PSR but not to the PSR’s determi­

nation that he had been convicted of three separate and distinct se­

rious drug offenses. At sentencing, the district court overruled

Cropper’s objections and sentenced him under ACC A to 188

months’ imprisonment. Cropper appealed. He also continued sim­

ultaneous proceedings in the district court.

Cropper moved in the district court to be released pending

appeal. At a hearing on the matter, Cropper indicated that he be­

lieved the ACCA enhancement “shouldn’t apply . . . because the

three prior felonies being applied were all one case.” Crim. Doc. 91

at 17.2 A magistrate judge denied his motion, relying on the PSR to

conclude that Cropper’s three prior drug convictions were com­

mitted on different occasions. See 18 U.S.C. § 924(e)(1). Cropper

sought review of the magistrate judge’s order, arguing that his ma­

rijuana possession offense did not, as stated in the PSR, take place

on February 22, 2007, but rather occurred on September 19, 2008,

the same day as one of his distribution offenses that served as an

ACCA predicate. Cropper attached a pretrial document prepared

by a probation officer listing his criminal history. The document

2 “Crim Doc.” numbers are the district court’s docket entries in Cropper’s un­

derlying criminal case.

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listed his marijuana possession conviction as based on offense con­

duct “on or about September 19, 2008.” Crim. Doc. 110-4 at 8. He

also raised a double jeopardy claim. Cropper argued that the mari­

juana possession conviction, for which the PSR listed an offense

date of February 22, 2007, violated the Double Jeopardy Clause of

the Fifth Amendment because he previously had been convicted

for the same offense conduct.

The district court denied Cropper s motion. As relevant

here, the court stated that Cropper had not "argue[d] that this

Court should change his sentence so that [ACCA] does not apply,”

but rather had “presented] this argument to challenge the magis­

trate judge’s alternative finding that [Cropper] should be detained”

pending appeal “because none of his appeal issues—including the

issue that the [ACCA] enhancement was incorrectly applied to

him—are likely to result” in a new sentence. Crim. Doc. 112 at 12

n.2. Further, the court explained, even if Cropper was asking for a

lesser sentence, his failure to object to the relevant facts in the PSR

meant that he was deemed to have admitted those facts, including

the dates on which the offenses were committed. Cropper did not

appeal this order.

Meanwhile, in this Court, Cropper challenged his marijuana

possession ACCA predicate on the same double jeopardy grounds

he raised in the district court. He did not argue that the marijuana

possession offense was committed on the same occasion as one of

his distribution offenses. We rejected Cropper’s double jeopardy

argument, concluding that he could not use an appeal of his federal

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5

sentence to collaterally attack his prior state conviction. See United

States v. Cropper, 812 F. App'x 927, 931-32 (11th Cir. 2020) (un­

published).

After Cropper was unsuccessful seeking relief via a motion

for release pending appeal in district court and before this Court on

direct appeal, he filed a § 2255 motion in district court. In his mo­

tion he alleged that "[n]ew evidence prove[d] that two of [his]

ACCA-predicates actually arose from a single criminal episode and

did not occur on different occasions.” Civ. Doc. 1 at 4.3 Thus, he

argued, he lacked three prior serious drug offense convictions and

should not have received an ACCA-enhanced sentence. See 18

U.S.C. § 924(e)(1). He alleged that his Alabama marijuana posses­

sion conviction and one of his distribution convictions "both oc­

curred on September 19, 2008, at the same time and place during a

single criminal episode.” Id. Cropper acknowledged that he did not

raise the issue in his direct appeal, explaining that at the time he

"lacked a key piece of evidence to sufficiently support this claim”

and that he had "withheld this issue” to meet page limit require­

ments. Id. The evidence, Cropper said, was the State of Alabama's

concession in a November 2020 state-court brief that the February

22, 2007 date of his marijuana possession was a "clerical error” and

3 "Civ. Doc.” numbers are the district court's docket entries in Cropper’s

§ 2255 case.

Cropper's § 2255 motion contained two claims, but only one is at issue

in this appeal—the one about which the district court issued a certificate of

appealability.

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that the possession actually occurred on September 19, 2008, the'

same day as one of his distribution charges. Civ. Doc. 3 at 8. Crop­

per explained that he did not raise the issue on direct appeal be­

cause he was not in possession of the brief then, noting that this

Court decided his direct appeal in May 2020. Cropper attached Al­

abama’s brief, as well as a state criminal complaint dated Septem­

ber 23, 2008, which specified that he unlawfully possessed mariju­

ana "on or about 9/19/2008.” Id. at 117; see also id. at 42 (criminal

form noting "OFF: 09192008”).

The district court denied Cropper s § 2255 motion. The

court found that Cropper had failed to raise the clerical-error claim

on direct appeal despite his ability to do so, and so the claim was

procedurally defaulted. The court further concluded that Cropper

could show neither cause nor prejudice to excuse the default. And,

the court concluded, Cropper had not shown that the default could

be excused on the ground of actual innocence. The court nonethe­

less granted Cropper a certificate of appealability on whether his

“case is truly extraordinary and requires the consideration of [a]

procedurally defaulted claim[].” Civ. Doc. 9 at 26. This is Cropper’s

appeal.

II.

In a § 2255 proceeding, we review legal issues de novo and

factual findings under a clear error standard. Lynn v. United States,

365 F.3d 1225, 1232 (11th Cir. 2004).

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III.

Section 2255 permits a federal prisoner to obtain relief from

a sentence when that sentence was imposed in violation of the

Constitution or laws of the United States. 28 U.S.C. § 2255(a). Gen­

erally, a criminal defendant must advance an available challenge to

his conviction or sentence on direct appeal or else he is barred from

presenting that claim in a § 2255 proceeding. Lynn, 365 F.3d at 1234;

see also Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021)

(same). If a defendant fails to do so and then advances his claim in

a § 2255 proceeding, his claim is procedurally defaulted and he

“cannot succeed on collateral review unless he can either (1) show

cause to excuse the default and actual prejudice from the claimed

error, or (2) show that he is actually innocent of [his offense of]

conviction.” Granda, 990 F.3d at 1286.

Cropper argues that he can satisfy both exceptions to the

procedural default rule. As to cause and prejudice, he argues that

he lacked the necessary evidence to prove that his marijuana pos­

session conviction was committed on the same occasion as one of

his distribution convictions until after his direct appeal concluded.

Acknowledging that he had some evidence during his direct appeal,

Cropper asserts that the State of Alabama's brief was the linchpin

for his argument because it took the amount of evidence he had

over the threshold he would need to prove his claim. As to actual

prejudice, he argues that because of the error in his PSR he was

sentenced to over five years above the ten-year statutory maxi­

mum that would have applied had he not been given the ACCA

enhancement.

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We must reject Croppers cause-and-prejudice argument.

The question we must ask is not whether legal developments or

new evidence has made a claim easier or better, but whether at the

time of the direct appeal the claim was available at all. Lynn, 365

F.3d at 1235. Here, the claim that two of his offenses were not com­

mitted on separate occasions was available to Cropper at sentenc­

ing and on direct appeal. Indeed, Cropper raised the claim in the

district court in support of his motion for release pending appeal,

further demonstrating its availability. He did not, unfortunately,

raise it to this Court. Cropper therefore cannot show cause to ex­

cuse the procedural default. We need not address prejudice.

Cropper also argues that he can satisfy the actual-innocence

exception to procedural default. He asserts that he was actually in­

nocent of being an armed career criminal. Precedent forecloses

Cropper’s argument that he is actually innocent. See Williams v.

Warden, 713 F.3d 1332,1345-46 (11th Cir. 20l3)(holding that actual

innocence refers only to factual innocence of crimes and that a chal­

lenge to whether a prior offense qualified as an ACC A predicate

was a claim of legal innocence), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, 851 F.3d 1076, 1096 (11th

Cir. 2017) (en banc).

For these reasons, we affirm the district court’s denial of

Cropper’s § 2255 motion.

AFFIRMED.

Appendix aCn

dig U-^C § 2255. Federal custody; remedies on motion attacking sentence

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming

the right to be released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction to impose

such sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

(b) Unless the motion and the files and records of the case conclusively show that the prisoner

is entitled to no relief, the court shall cause notice thereof to be served upon the United States

attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and

conclusions of law with respect thereto. If the court finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to

collateral attack, or that there has been such a denial or infringement of the constitutional rights of

the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and

set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or

correct the sentence as may appear appropriate.

(c) A court may entertain and determine such motion without requiring the production of the

prisoner at the hearing.

(d) An appeal may be taken to the court of appeals from the order entered on the motion as

from the final judgment on application for a writ of habeas corpus.

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to

apply for relief by motion pursuant to this section, shall not be entertained if it appears that the

applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such

court has denied him relief, unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation

period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action

in violation of the Constitution or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental action;

uses

1

RECEIVED

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and terms and conditions of the Matthew Bender Master Agreement.

AUG - o 202*i

35029001

(3) the date on which the right asserted was initially recognized by the Supreme Court, if

that right has been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act [21 USCS § 848], in

all proceedings brought under this section, and any subsequent proceedings on review, the court

may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to

statutory authority. Appointment of counsel under this section shall be governed by section

3006A of title 18.

(h) A second or successive motion must be certified as provided in section 2244 [28 USCS §

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.

HISTORY:

June 25, 1948, ch 646, 62 Stat. 967; May 24, 1949, ch 139, § 114, 63 Stat. 105; April 24, 1996,

P. L. 104-132, Title I, § 105, 110 Stat. 1220; Jan. 7, 2008, P. L. 110-177, Title V, § 511, 121

Stat. 2545.

USCS

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