McKay: Actual Innocence does not encompass legal claims

In McKay v. U.S., No. 09-15099 (Sept. 22, 2011), the Court held that a career offender could not seek a sentence reduction in a proceeding under 28 U.S.C. § 2255 based on intervening Supreme Court caselaw that made one of his prior convictions no longer qualify as a “crime of violence.” The Court noted that the defendant had failed to challenge the prior conviction in his direct appeal of his sentence. He therefore waived the issue for a future § 2255 motion. The Court rejected the argument that the “actual innocence” exception might excuse the default. The Court held that the “actual innocence” exception applies only to “factual” innocence, not to legal claims. Here, the defendant did not argue that he was innocent of the prior carrying a concealed weapon offense, only that this offense no longer qualified as a “crime of violence.” The Court held that this did not suffice to establish “actual innocence.”