United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM & ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE
the court is Richard Lumpkin's Motion to Vacate, Set
Aside, or Correct Sentence in Accordance with 28 U.S.C.
§ 2255. (Doc. No. 1.) Lumpkin seeks to vacate and reduce
the sentence entered upon his criminal conviction in
United States v. Lumpkin, No. 3:95-cr-00065 (M.D.
Tenn. Apr. 12, 1996) (Morton, J.), under Johnson v.
United States, 135 S.Ct. 2551 (2015), which invalidated
the so-called “residual clause” of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e). As set forth herein, the court finds that
Johnson does not apply to Lumpkin's claim and
that the motion must be denied as time-barred.
was sentenced in April 1996 to a prison term of 405 months
following his guilty plea to two counts of possession with
intent to distribute methamphetamine, in violation of 18
U.S.C. § 841(a)(1). The Sixth Circuit affirmed.
United States v. Lumpkin, 159 F.3d 983 (6th Cir.
1998). Lumpkin's initial motion under § 2255 was
denied, Lumpkin v. United States, No. 3:00-cv-00048
(M.D. Tenn. Jan. 10, 2001) (Campbell, J.), and the Sixth
Circuit denied a certificate of appealability, Lumpkin v.
United States, No. 01-5229 (6th Cir. Dec. 27, 2001).
20, 2016, Lumpkin filed his present Motion to Vacate, arguing
that his sentencing range was calculated based on his
classification as a career offender under the United States
Sentencing Guidelines, under a clause of the guidelines
identical to the statutory provision held to be
unconstitutionally vague in Johnson. Consideration of
the Motion was stayed pending the Sixth Circuit's review
of Lumpkin's application to file a second or successive
petition. (Doc. No. 6.) After the appellate court granted
that application on October 4, 2016 (see Doc. No.
7), Lumpkin filed a Supplemental Brief (Doc. No. 10), asking
the court to postpone ruling on his motion until the
“potential rehearing process” had been completed
for Raybon v. United States, 867 F.3d 625 (6th Cir.
2017). He expressly acknowledges therein that Raybon
precludes the relief sought and that, unless the Sixth
Circuit reversed course en banc, his motion must be
deemed time-barred. (See Doc. No. 10, at 7.)
Response, the United States argues that the movant has not
asserted a right newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review,
28 U.S.C. § 2255(f)(3), and, therefore, that his motion
is time-barred. (Doc. No. 12 (citing Raybon, 867
F.3d at 629-30).) Lumpkin thereafter filed a pro se
Reply (Doc. No. 13).
Standard of Review
U.S.C. § 2255 provides a statutory mechanism for a
post-conviction challenge to the imposition of a federal
sentence. In order to obtain relief under § 2255, a
movant “‘must demonstrate the existence of an
error of constitutional magnitude which had a substantial and
injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
motion under § 2255 is subject to a one-year statute of
limitations. 28 U.S.C. § 2255(f). The one-year period
runs from “the latest of” four possible events,
only two of which are relevant here:
(1) the date on which the judgment of conviction becomes
(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 . . . .
Id. § 2255(f)(1), (3). Because his conviction
became final more than twenty years ago, the current motion
is clearly time-barred if subsection (1) is the latest
relevant event. Lumpkin claims that he is entitled to relief
under subsection (3), because Johnson articulated a
newly recognized right made retroactive on collateral review.
Johnson, the Supreme Court held that the subsection
of the ACCA that included within the scope of the definition
of “violent felony” any crime that
“involves conduct that presents a serious potential
risk of physical injury to another, ” 18 U.S.C. §
924(e)(2)(B)(ii)-the so-called “residual
clause”-was unconstitutionally vague and, therefore,
that “an increased sentence under the residual clause .
. . violates the Constitution's guarantee of due
process.” Johnson, 135 S.Ct. at 2555-56. ...