Submitted February 10, 2022** Seattle, Washington Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.

Nick West appeals the denial of a motion under 28 U.S.C. § 2255. West seeks relief from his conviction, arising out of a plea agreement, under the residual clause of 18 U.S.C. § 924(c)(3)(B), which the Supreme Court held

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319, 2323–24 (2019). West did not raise the unconstitutionality of § 924(c)(3)(B) at trial or on direct appeal. West argues that he can demonstrate cause and prejudice to overcome the apparent procedural default of this claim. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255(d), and we affirm the district court. Because the parties are familiar with the facts, we do not recite them here.

A petitioner may overcome procedural default by showing either: (1) cause and actual prejudice or (2) actual innocence. See United States v. Frady, 456 U.S. 152, 167–68 (1982) (cause and prejudice); Murray v. Carrier, 477 U.S. 478, 497 (1986) (actual innocence).1

West argues that he has cause and prejudice for the procedural default because his trial counsel was incompetent in failing to raise the potential unconstitutionality of the residual clause § 924(c)(3)(B) upon which Count 9 of the plea agreement was based. Further, he contends that the unconstitutionality of the clause following the Supreme Court’s ruling in Davis represents an independent reason for the plea agreement’s invalidity. West cannot demonstrate cause and prejudice under either theory.

deficiency in the plea agreement, as it was written. See Strickland, 466 U.S. at