[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JULY 14, 2009
                               No. 08-15962                   THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                    D. C. Docket No. 02-80123-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

OMARI SHARIFA COLEY,

                                                            Defendant-Appellant.


                         ________________________

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

                                 (July 14, 2009)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Omari Sharifa Coley appeals the district court’s denial of his pro se “Motion
Pursuant To the Law of the Case Doctrine,” which the district court construed as a

28 U.S.C. § 2255 motion to vacate his sentence.

                                         I.

      Coley’s motion challenged his career-offender status under the sentencing

guidelines, U.S.S.G. § 4B1.1. In 2003 Coley was sentenced as a career offender

based in part on a previous Florida conviction for carrying a concealed firearm.

See U.S.S.G. § 4B1.1(a). At the time of Coley’s sentencing, this circuit considered

carrying a concealed firearm a “crime of violence” under § 4B1.1(a). See United

States v. Gilbert, 

, 1372 (11th Cir. 1998) (“We thus hold that

carrying a concealed weapon in violation of Florida law is a “crime of violence. .

.”). However, our interpretation of § 4B1.1 has since changed in accordance with

the Supreme Court’s decision in Begay v. United States, 553 U.S. __, 

, 1586 (2008). See United States v. Archer, 

, 1352 (11th Cir.

2008) (holding that, after Begay, carrying a concealed firearm was not a “crime of

violence” under U.S.S.G. § 4B1.1 and that Gilbert had been abrogated).

      Therefore Coley’s motion argued that his concealed firearm conviction

could no longer serve as a predicate “crime of violence” in light of Begay and

Archer. Accordingly, Coley asked that his sentence be set aside and reconsidered

without the career-offender enhancement.



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        The district court denied Coley’s motion. It observed that Coley was asking

for a retroactive application of Begay, but because the Supreme Court did not

“expressly indicate” that Begay would apply retroactively on collateral review, the

district court declined to so apply it. Coley requested a certificate of appealability

on the issue of whether Archer and Begay apply retroactively and the district court

granted it.1 The court also accepted Coley’s contention, made through counsel,

that his original pro se motion should be construed as a § 2255 motion to set aside

his sentence.

                                                 II.

       The first issue is whether Coley’s motion was properly recharacterized as a §

2255 motion to set aside Coley’s sentence. It was.

       The government argues that the district court should not have considered


       1
          We observe that the certificate of appealability in this case should not have been
granted. Under 28 U.S.C. § 2253(c)(2), a “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” In Hunter v.
United States, 

, 1189 (11th Cir. 2009), we stated that “Although Begay provides
good reason to conclude that [the prisoner] was erroneously sentenced as an armed career
criminal, a sentencing error alone does not amount to ‘a substantial showing of the denial of a
constitutional right.’ 28 U.S.C. § 2253(c)(2).” 

Hunter we denied the
prisoner a certificate of appealability. 

        However, the government has not challenged the certificate of appealability. And we do
not sua sponte challenge the propriety of a granted certificate. See Thomas v. Crosby, 

, 785 (11th Cir. 2004) (“An obligation to determine whether a certificate should have been
issued, even if the parties do not present this issue for decision . . . would increase the
complexity of appeals in collateral attacks and the judicial effort required to resolve them, the
opposite of the legislative plan . . . . This we will not do.”) (internal quotation marks and citation
omitted).

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Coley’s motion under § 2255 because the court failed to give Coley notice of its

intent to recharacterize his motion, as required by Castro v. United States, 

, 

, 792 (2003). But the point of Castro is that a pro se litigant

must be warned before a district court recharacterizes his motion as one brought

under § 2255. The reason for this requirement is to avoid surprising that litigant

later when he tries to file what he believes is a first § 2255 motion, but then is

forced to surmount the much higher standard for a second or successive § 2255

motion. 

124 S. Ct. at 789.

      Castro’s protections therefore exist to protect pro se litigants from unfair

surprises based on recharacterization. In this case Coley later obtained counsel and

through counsel he specifically asked the district court to consider his motion as

one brought under § 2255. The protections of Castro are inapposite here. Coley’s

motion is to be considered, as he requested, one arising under § 2255.

                                          III.

      “In a § 2255 proceeding, we review legal issues de novo.” Lynn v. United

States, 

, 1232 (11th Cir. 2004). The legal question presented by the

certificate of appealability is whether the Supreme Court’s decision in Begay, and

our circuit’s application of Begay in Archer, can apply retroactively during § 2255

proceedings. 28 U.S.C. § 2255 states, in pertinent part, that:



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      A prisoner in custody under sentence of a court established by Act of
      Congress claiming . . . that the sentence was in excess of the maximum
      authorized by law . . . may move the court which imposed the sentence to
      vacate, set aside, or correct the sentence.

However, the Supreme Court has foreclosed using § 2255 as Coley wishes to in

this case. In Stone v. Powell, 

, 478 n.10, 

, 3044 n.10

(1976), the Court stated that “28 U.S.C. § 2255 will not be allowed to do service

for an appeal. . . . For this reason, nonconstitutional claims that could have been

raised on appeal, but were not, may not be asserted in collateral proceedings.” 

v. Large, 

, 178–79, 

, 1590–91 (1947),

Davis v. United States, 

, 345–46 n. 15, 

, 2304–05

(1974) (internal quotation marks and citations omitted)). We have clarified that “a

non-constitutional error that may justify reversal on direct appeal does not

generally support a collateral attack on a final judgment . . . unless the error (1)

could not have been raised on direct appeal and (2) would, if condoned, result in a

complete miscarriage of justice.” Lynn v. United States, 

, 1232–33

(2004) (emphasis added).

      Coley has not argued that his sentence violates any constitutional right, but

only that it violates the sentencing guidelines after Begay and Archer. See 

(observing that because a prisoner erroneously sentenced as an

armed career criminal had failed to show the denial of a constitutional right, he

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could not attack his sentence in a § 2255 proceeding). Accordingly, if Coley’s

claim “could . . . have been raised on direct appeal,” then it is not cognizable under

§ 2255. See 

. “A ground of error is usually ‘available’ on

direct appeal when its merits can be reviewed without further factual

development.” 

n.14 (citation omitted).

      Coley did not raise this issue on direct appeal. In fact, it appears that he

filed no direct appeal at all. Nor does Coley offer any reason why he could not

have raised this issue on direct appeal. Of course, Begay and Archer had not yet

been decided when Coley was sentenced in 2003; however, if he believed that his

career offender status was improper under the guidelines that claim could have

been made on direct appeal— just as Begay and Archer later did. Cf. Smith v.

Murray, 

, 534–35, 

, 2666 (1986) (holding that

perceived futility in raising an issue on direct appeal does not constitute cause for

not doing so); Bousley v. United States, 

, 623, 

, 1611

(1998) (“[F]utility cannot constitute cause if it means simply that a claim was

unacceptable to that particular court at that particular time.”) (internal citation and

quotation marks omitted); Turner v. Crosby, 

, 1281 (11th Cir. 2003)

(“If a defendant perceives a constitutional claim and believes it may find favor in

the federal courts, he may not bypass the state courts simply because he thinks they



                                            6
will be unsympathetic to the claim.”).

      Because his status as a career offender is a non-constitutional issue that

Coley could have raised on direct appeal, it is not cognizable on collateral review

under § 2255.

      AFFIRMED.




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