Case: 16-30712 Document: 00513617660 Page: 1 Date Filed: 08/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-31092
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, August 1, 2016
Lyle W. Cayce
Plaintiff–Appellee, Clerk
versus
LLOYD E. CURRY, Also Known as Lloyd Ellis Curry, Also Known as Slugger,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-968
* * * * * * * * *
No. 16-30712
In re: LLOYD E. CURRY, also known as Lloyd Ellis Curry,
Movant.
Motion for an Order Authorizing
the United States District Court
for the Eastern District of Louisiana
to Consider a Successive 28 U.S.C. § 2255 Motion
Case: 16-30712 Document: 00513617660 Page: 2 Date Filed: 08/01/2016
No. 15-31092
No. 16-30712
Before SMITH, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Lloyd Curry, federal prisoner # 31442-034, moves for a certificate of
appealability (“COA”) to appeal the denial of a 28 U.S.C. § 2255 motion chal-
lenging his sentence under the Armed Career Criminal Act (“ACCA”) in light
of Johnson v. United States, 135 S. Ct. 2551 (2015). In a separate case, he
moves for authorization to file a second or successive § 2255 motion raising the
Johnson claim. IT IS ORDERED that the cases are CONSOLIDATED and
that the motion for authorization is DENIED as unnecessary.
We agree with the government and Curry that his Louisiana conviction
of aggravated flight from an officer no longer qualifies as a predicate offense
under the ACCA in light of Johnson. A COA is GRANTED because reasonable
jurists would debate the district court’s ruling that Johnson does not apply
retroactively to cases on collateral review, see Welch v. United States, 136 S. Ct.
1257, 1265 (2016), and further would debate whether Curry has stated a valid
claim of a constitutional deprivation, see Johnson, 135 S. Ct. at 2557; Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Houser v. Dretke, 395 F.3d 560, 562 (5th
Cir. 2004); 18 U.S.C. § 924(e); LA. REV. STAT. ANN. 14:108.1(C), (D) (2006). The
unopposed motion to vacate the judgment denying § 2255 relief and to remand
for the district court to consider the merits of Curry’s Johnson claim in the first
instance is GRANTED. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir.
1998). This action is VACATED and REMANDED. We express no opinion on
what rulings the district court should make on remand.
* 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.
2
In Re: Lloyd Curry
Combined Opinion