Case: 15-11175      Document: 00513484353         Page: 1    Date Filed: 04/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                      No. 15-11175                                FILED
                                                                              April 28, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff-Appellee

v.

RICHARD RAY HARRIMON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:15-CV-152
                             USDC No. 7:07-CR-17-1


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Richard Ray Harrimon pleaded guilty to two counts of being a convicted
felon in possession of a firearm and was sentenced, under the Armed Career
Criminal Act (ACCA), to serve 188 months in prison. He filed the instant 28
U.S.C. § 2255 motion to challenge his sentence, which was grounded in a
conclusion that his prior convictions for evading arrest by use of a vehicle
qualified as violent felonies under the residual clause of the ACCA. Because


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-11175       Document: 00513484353     Page: 2   Date Filed: 04/28/2016


                                  No. 15-11175

the residual clause was deemed unconstitutionally vague in Johnson v. United
States, 

(2015), he argued, he was entitled to § 2255 relief.
      The district court denied the motion based on jurisprudence from this
court holding that Johnson was not available on collateral review. Harrimon
then moved this court for a certificate of appealablity (COA) on the issue
whether the district court erred by concluding that Johnson was not available
on collateral review. After this COA motion was filed, the Supreme Court held
that Johnson applies retroactively to cases on collateral review. Welch v.
United States, 

, 

, 7-8 (U.S. April 18, 2016).
Harrimon then filed an unopposed motion for expedited ruling on the COA
motion, to summarily vacate the judgment of the district court, and to remand
to the district court.
      To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A movant satisfies
this standard by showing that “jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 

, 327 (2003).
      In light of Welch, Harrimon has met this standard. Additionally, his
argument in favor of expedited consideration is persuasive. Accordingly, both
of Harrimon’s motions are GRANTED. The judgment of the district court is
VACATED, and this case is REMANDED to the district court for further
proceedings.




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