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15-317 - United States of America v. Lumpkin


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15-317 - United States of America v. Lumpkin
November 8, 2017
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Memorandum of Opinion and Order as to Kevin R. Lumpkin: Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED with respect to the second and third grounds for relief. The Court reserves ruling on the first ground for relief until after the Government submits a brief addressing Petitioner's argument that counsel was ineffective for failing to investigate whether Devines civil rights had been restored by the time she purchased the gun that is the subject of Count 2 of the Indictment. The Government's brief is due within fourteen days of the date of this Order. Judge Patricia A. Gaughan on 11/8/17. (LC,S) re 51
January 18, 2018
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Memorandum of Opinion and Order as to Kevin R. Lumpkin: Petitioner is entitled to relief on his first ground for relief. His Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is GRANTED on this ground, and his conviction on Count Two of the Indictment is hereby vacated. Although the Government appears to be correct that Petitioner's Guideline range will not be affected by the vacating of Count Two, Petitioner is nevertheless entitled to a re-sentencing. The Court will hold a re-sentencing hearing to be set by separate order. Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that there is no basis upon which to issue a certificate of appealability as to Petitioner's second and third grounds for relief in his § 2255 motion. For the reasons stated in this Court's order of November 8, 2017, an appeal from the decision as to these grounds could not be taken in good faith. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). Judge Patricia A. Gaughan on 1/18/18. (LC,S) re 51 Civil Case 1:17-cv-01522-PAG closed.