MEMORANDUM FINAL ORDER

REBECCA BEACH SMITH, Chief Judge.

This matter comes before the court on the motion to vacate, set aside, or correct his sentence pursuant to Title 28, United States Code, Section 2255 ("Motion") of the Petitioner, Christopher Damon Spencer ("Spencer").1 For the reasons set forth below, the court DENIES the Petitioner's Motion.2

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2011, a federal grand jury in the Eastern District of Virginia indicted Spencer on thirteen (13) counts. Count One charged Spencer with conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846. Counts Two through Thirteen charged Spencer with distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. On May 3, 2011, Spencer pled guilty to Count One before Magistrate Judge F. Bradford Stillman. On August 10, 2011, this court sentenced Spencer to two hundred thirty-five (235) months of imprisonment and five (5) years of supervised release.

On August 13, 2012, Spencer filed the instant Motion.3 In the Motion, the Petitioner alleges that he no longer qualifies as a career offender under § 4B1.1 of the United States Sentencing Guidelines ("Guidelines") after the Supreme Court's decision in Carachuri-Rosendo v. Holder, ___ U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir.2011), and the Eastern District of North Carolina's Decision in Brantley v. United States, No. 5:10-CV-600, No. 5:07-CR-20-BO, 2012 WL 1745510, 2012 U.S. Dist. LEXIS 68373 (E.D.N.C. May 16, 2012). Mot. at 5.

On August 14, 2012, the court entered an order directing the United States to respond, which it did on August 27, 2012. Spencer did not reply to the government's response, and the matter is ripe for review.

II. DISCUSSION

A prisoner may challenge a sentence imposed by a federal court if: 1) the sentence violates the Constitution or laws of the United States; 2) the sentencing court lacked jurisdiction to impose the sentence; 3) the sentence exceeds the statutory maximum; or 4) the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A sentence is "otherwise subject to collateral attack" where the petitioner shows that his sentence was affected by "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

In challenging his sentence, the prisoner bears the burden of proving one of the aforementioned grounds by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958). If he satisfies that burden, the court may vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(b). However, if the petitioner's motion, when viewed against the record, shows that the petitioner is not entitled to any relief, the court may summarily deny the motion. United States v. Yearwood, 863 F.2d 6, 7 (4th Cir.1988), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

A. PROCEDURAL DEFAULT

The United States argues that Spencer has procedurally defaulted on his § 2255 claim because he did not raise the Simmons issues on direct appeal. As a general rule, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). In order to obtain collateral relief based on issues that could have been raised on direct appeal but were not, the movant must ordinarily show "`cause' excusing his ... procedural default," and "`actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

Even in the absence of a showing of cause for the procedural default and resulting prejudice, a defendant may proceed with a collateral attack if. he is able to show that a fundamental miscarriage of justice would result were his claim denied. United States v. Maybeck, 23 F.3d 888, 892 (4th Cir.1994). To demonstrate a "miscarriage of justice," the petitioner "must show actual innocence by clear and convincing evidence." United States v. Williams, 396 Fed.Appx. 951, 953 (4th Cir.2010) (unpublished) (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir.1999)).4

Spencer did not raise his objection at sentencing or on direct review.5 Therefore, unless an exception applies, Spencer may not obtain collateral review of his procedurally defaulted claim.

B. EXCEPTIONS TO PROCEDURAL DEFAULT

The exceptions to procedural default do not save Spencer's claim, as he has not demonstrated cause excusing his default and prejudice from the alleged error, or actual innocence.

1. CAUSE AND PREJUDICE

There is no cause that excuses Spencer's failure to bring his claim on direct review.6 Spencer argues that after Simmons, he "no longer has the requisite predicate felonies to be classified as a career offender." Mot. at 5.7 While this argument could not have been raised at sentencing, which occurred before Simmons was decided, Spencer could have pursued this claim on direct appeal, as Simmons was decided before Spencer's deadline for appealing his criminal case expired.8 Therefore, Spencer has not established sufficient cause to excuse his procedural default.9 Moreover, since Spencer is properly qualified as a career offender, he cannot show prejudice to excuse his procedural default.10

2. ACTUAL INNOCENCE

The change in law that Simmons effected does not render Spencer actually innocent of being a career offender. The Guidelines provide, in relevant part, that a defendant may be classified as a career offender, if he has at least two prior felony convictions of a controlled substance offense. U.S. Sentencing Guidelines Manual § 4B1.1. To qualify as a felony conviction of a controlled substance offense, the drug offense must be "punishable by imprisonment for a term exceeding one year." Id. § 4B1.2. The actual sentence imposed is irrelevant to the inquiry. Id. § 4B1.2 cmt. n. 1. In Simmons, the Fourth Circuit held that the maximum potential term of imprisonment should represent the maximum potential term that the actual defendant faced, not the maximum potential term faced by a hypothetical defendant with the worst possible criminal history and the presence of the most aggravating factors. Simmons, 649 F.3d at 250.

The Presentence Investigation Report ("PSR") indicated that Spencer qualified as a career offender due to his conviction for possession of cocaine with intent to distribute in Norfolk Circuit Court on March 20, 1996, and his conviction for possession with intent to distribute cocaine base in the United States District Court on November 20, 2003. PSR at SI 76. Both offenses unquestionably meet the definition of predicate "felony," even under Simmons. The Norfolk Circuit Court sentenced Spencer to twenty (20) years imprisonment under Va.Code § 18.2-248.11 Felony Trial Order, Norfolk Circuit Ct., Mar. 20, 1996. The fact that Spencer ultimately served only one year for that offense is not of legal significance, as the imposition of a twenty-year sentence makes clear that the offense was "punishable by imprisonment for a term exceeding one year." Cf. Simmons, 649 F.3d at 249 (focusing on the state record of conviction, not jail time actually served); see also Whitley v. United States, No. 2:02-0633, 2012 WL 3059617, at *2, 2012 U.S. Dist. LEXIS 103962, at *5 (D.S.C. July 26, 2012) (determining that even after Simmons, the petitioner's prior conviction qualified as a felony because the petitioner received a sentence of three years' imprisonment, even though the sentence was suspended).

III. CONCLUSION

Spencer procedurally defaulted on his claim that he did not have the requisite predicate felonies to be classified as a career offender. Neither the "cause and prejudice" exception nor the "actual innocence" exception allows him to overcome his procedural default.12 Accordingly, the Petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is DENIED.

The Petitioner is ADVISED that he may appeal from this Memorandum Final Order by forwarding a written notice of appeal to the Clerk of the United States District Court, 600 Granby Street, Norfolk, Virginia, 23510. The written notice of appeal must be received by the Clerk within sixty (60) days of the date of this Memorandum Final Order. The court declines to issue a certificate of appealability for the reasons stated herein.

The Clerk is DIRECTED to send a copy of this Memorandum Final Order to the Petitioner, the Assistant United States Attorney at Norfolk, and the Petitioner's trial counsel, Richard Joseph Colgan.

IT IS SO ORDERED.