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Lumpkin v. United States

United States District Court, N.D. Ohio, Eastern Division

November 8, 2017

Kevin R. Lumpkin, Plaintiff,
v.
United States of America, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN, UNITED STATES DISTRICT COURT.

         INTRODUCTION

         This matter is before the Court upon petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 51). For the reasons that follow, the motion is DENIED with respect to Petitioner's second and third grounds for relief. The Government is ordered to file a supplemental brief on the first ground for relief within fourteen days of the date of this Order. The Court will reserve ruling on ground one until after it receives the Government's brief.

         FACTS

         Petitioner was indicted on August 26, 2015, on two counts of knowingly selling firearms to persons he knew or had reasonable cause to believe had been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(d)(1). Count 1 was based on his sale of a Hi-Point .45 caliber rifle to Calvin Kelly, and Count 2 was based on his sale of a Ruger .380 caliber pistol to Michelle Devine. A jury found Petitioner guilty of both counts. For sentencing purposes, this Court grouped the two counts and concluded that the advisory Guidelines range was 63 to 78 months of imprisonment. The Court sentenced Petitioner to 63 months of imprisonment on each count, to be served concurrently.

         Petitioner appealed, arguing that there was insufficient evidence for the jury to find that he had the requisite knowledge that Kelly and Devine had been convicted of a crime punishable by over a year of imprisonment and that he received an unfair trial because the FBI agent told the jury that he did not believe Petitioner was telling the truth about the guns in question during a taped interview. The Sixth Circuit affirmed Petitioner's conviction on January 27, 2017. United States v. Lumpkin, 677 F. App'x 992 (6th Cir. 2017). Petitioner did not file a petition for a writ of certiorari with the Supreme Court. He now seeks relief pursuant to 28 U.S.C. § 2255. The Government opposes Petitioner's motion.

         ANALYSIS

         A federal prisoner may challenge a sentence if it “was imposed in violation of the Constitution or laws of the United States ... or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. To prevail on a § 2255 motion, “the movant must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003). The petitioner has the burden of “sustaining [his] contentions by a preponderance of the evidence.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). A prisoner may not raise claims in a § 2255 motion that could have been raised on direct appeal unless he shows either: (1) good cause for failing to raise the claim earlier and actual prejudice or (2) actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted).

         Petitioner raises three grounds for relief in his motion: (1) he is actually innocent of Count 2 of the Indictment; (2) he is actually innocent of Count 1 of the Indictment; (3) his Fifth Amendment rights were violated by the admission of an illegal taped interview between FBI agents and Petitioner. (Doc. 51, at 4-6). For the reasons discussed below, Petitioner is not entitled to relief on his second and third grounds for relief. The Court reserves ruling on his first ground for relief at this time.

         A. Ground One

         In his first ground for relief, Petitioner claims that he is actually innocent of Count 2 of the Indictment because Michelle Devine was no longer under a disability for possessing a firearm at the time he sold her the Ruger (between February 12, 2012 and August 11, 2013, as alleged in the Indictment). The Government asserted at trial that Devine was under a firearms disability because of a December 2005 Ohio aggravated theft conviction, a felony of the fourth degree. Devine received six months in prison for this conviction. Petitioner argues that Devine's rights to vote, hold public office, and serve on a jury were automatically restored pursuant to Ohio Revised Code §§ 2961.01(A)(2) and 2967.16(C)(1), when she was released from prison in June of 2006. Once these rights were restored, Petitioner asserts that she was no longer under a disability for owning a firearm.

         The Government argues that Petitioner did not support this claim with any proof and that the claim is procedurally barred because he did not raise the issue of Devine's status at trial. Because he could have sought information about whether her rights were restored, the Government argues that he cannot establish cause to excuse his procedural default. Finally, it argues that he cannot establish prejudice because his 63-month sentence on Count 2 is concurrent to his 63-month sentence on Count 1 such that he is not serving an illegal sentence.

         In his reply brief, Petitioner argues ineffective assistance of counsel as cause and prejudice to excuse the procedural default. Specifically, he argues that counsel's failure to investigate whether Devine's civil rights had been restored was ineffective.

         The Sixth Circuit has held that, while a claim of actual innocence can be raised to avoid a procedural bar, a freestanding claim of actual innocence is not cognizable in a non-capital federal habeas proceeding. Bowman v. Haas, No. 15-1485, 2016 WL 612019, at *5 (6th Cir. Feb. 10, 2016) (“Reasonable jurists could not debate the district court's conclusion that Bowman's freestanding claim of actual innocence was not cognizable in this non-capital federal habeas proceeding.”) (citing Hodgson v. Warren, 622 F.3d 591, 601 (6th Cir. 2010) (noting that in a non-capital case, “a claim of ‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas ...


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