                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0066n.06

                                           No. 17-5500

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

KEITH WALKER,                                            )                        FILED
                                                                            Feb 07, 2018
                                                         )
                                                                        DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                             )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
UNITED STATES OF AMERICA,                                )      COURT FOR THE WESTERN
                                                         )      DISTRICT OF TENNESSEE
       Respondent-Appellee.                              )
                                                         )
                                                         )



       Before: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Keith Walker challenges under 28 U.S.C. § 2255 a prison

sentence he received just over 20 years ago. He was sentenced under the “residual clause” of the

then-mandatory Sentencing Guidelines, which required higher sentences for defendants with at

least two prior convictions for crimes involving “conduct that presents a serious potential risk of

physical injury to another.” U.S.S.G. § 4B1.2(1)(ii) (1995). In Johnson v. United States, the

Supreme Court found unconstitutionally vague an identically worded clause in the Armed Career

Criminal Act. 135 S. Ct. 2551, 2557 (2015). Walker argues that sentences decided under the

Guidelines’ residual clause when that clause was still mandatory—i.e., as binding on courts as

the Armed Career Criminal Act—are likewise unconstitutional under Johnson.

       That argument comes to us in the context of a § 2255 motion, so Walker’s motion is

untimely unless Johnson recognized a new right that applies retroactively to him on collateral
No. 17-5500
Walker v. United States

review. See 28 U.S.C. § 2255(f)(3). The problem, then, is that Johnson dealt only with the

Armed Career Criminal Act, not with the Guidelines. See Welch v. United States, 136 S. Ct.

1257, 1265 (2016). That leaves defendants sentenced under the Guidelines’ residual clause—

even when that clause was mandatory—without “a ‘right’ that ‘has been newly recognized by the

Supreme Court’ let alone one that was ‘made retroactively applicable to cases on collateral

review.’” Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017) (quoting § 2255(f)(3)).

       We acknowledge the irony that a defendant in a similar position to that of the defendant

in Johnson seems unable even to seek the same relief. But the fact of the matter is that Walker

can seek relief under § 2255(f)(3) only if the Supreme Court recognizes a new right that applies

retroactively to him. And per Raybon the Court has not yet done so.

       The district court’s judgment is affirmed.




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