govinfo:USCOURTS-gand-1_18-cr-00036-3

IN THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
      
 
UNITED STATES OF AMERICA  *  
        *   
       *       Criminal Action Nos.   
 v.      *      1:18-cr-36-ELR 
       *       
       *       Civil Action No. 
TIMOTHY LAMAR THOMAS  *       1:24-CV-4173-ELR 
       *        
       *  
             _________ 
 
   O R D E R 
   _________ 
 
This case comes before the Court on Defendant Timothy Thompson’s 
“Motion for Reduction of Sentence Under §3582(c)(2)” (§3582 motion”) [Doc. 116] 
and Defendant’s “Motion to Correct Sentence Under §28 U.S.C. § 2255 (f)(2)” [Doc. 
120]. For the following reasons, the Court denies both motions. 
In his motion §3582, Defendant asks this Court to vacate his Armed Career 
Criminal Act (“ACCA”) sentence on grounds that his Georgia aggravated assault 
convictions are no longer valid predicates after the Supreme Court decision in 
Borden v. United States, 593 U.S. 420 (2021), which held that a criminal offense 
that requires only a mens rea of recklessness cannot count as a “violent felony” under 
the elements clause of the ACCA. §3582, however, does not allow this Court to 
vacate Defendant’s sentence or to r evisit his designation as an Armed Career 
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Criminal. Instead, a post-conviction motion attacking a conviction or sentence is 
solely cognizable under §28 U.S.C. §2255. McCarthan v. Dir. Of Goodwill Indus. -
Suncoast, 851 F.3d 1076, 1081 (11th Cir. 2017). The Court therefore denies 
Defendant’s request made pursuant to §3582(c)(2). 
The Court turns next to Defendant’s §2255 motion, which also is due to be 
denied. As Magistrate Judge Justin S. Anand correctly found in his Report and 
Recommendation (“R&R”) on Defendant’s §2255 motion (to which Defendant did 
not object, and the Court having conducted a de novo review, adopts), Defendant 
waived his right to challenge his sentence because during Defendant’s February 20, 
2020 plea before the undersigned, Defendant acknowledged in open court his 
understanding that part of his negotiated plea agreement included giving up his right 
to appeal his conviction and sentence and the right to collaterally attack his 
conviction and sentence in any post-conviction proceeding including, but not limited 
to, motions filed pursuant to 28 U.S.C. § 2255. [Docs. 46, 46-1 at ¶ 30.] 
As Judge Anand also correctly found, Defendant’s claim that his conviction 
and sentence should be vacated based on the Supreme Court’s decision in Erlinger 
v. United States, 602 U.S. 821 (2024), which held that a jury must determine beyond 
a reasonable doubt, or that a defendant freely admit in a guilty plea, that a 
defendant’s prior offenses were committed on separate occasions for ACCA 
purposes, is procedurally defaulted by Defendant’s failure to raise it on direct appeal. 
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See Hill v. United States, 569 F. App’x 646, 647 (11th Cir. 2014) (per curiam); see 
also Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004) (“Generally, if a 
challenge to a conviction or sentence is not made on direct appeal, it will be 
procedurally barred in a 28 U.S.C. §2255 challenge.”) Defendant has not 
demonstrated cause or prejudice to overcome this procedural default by establishing 
that either of the following exceptions applies: (1) cause and prejudice, or (2) a 
miscarriage of justice based on actual innocence.  See Hill, 569 F. App’x at 648. 
Defendant, therefore, is not entitled to relief.  
In sum, the Court finds that Defendant’s arguments fail, and he is not entitled 
to relief based on his §2255 motion. The Court further declines to issue a certificate 
of appealability because after considering 28 U.S.C. § 2253(c)(2), the Court finds that 
Defendant has not made a substantial showing of the denial of a constitutional right.   
IV. Conclusion 
Based on the foregoing, the Court DENIES  Defe
 ndant’s “Motion for 
Reduction of Sentence Under §3582(c)(2)” [Doc. 116] . Additionally, the Court 
ADOPTS the R&R [Doc. 123] as the opinion of this Court.  For the reasons stated in 
the R&R, the Court DENIES Petitioner’s § 2255 Motion [Doc. 120].  Finally, the 
Court DECLINES to issue a certificate of appealability because after considering 28 
U.S.C. § 2253(c)(2), the Court finds that Petitioner has not made a substantial showing 
of the denial of a constitutional right.  The Court DIRECTS the Clerk to CLOSE the 
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civil case associated with Petitioner’s § 2255 Motion: Civil Action No. No. 1:24-cv-
4173-ELR. 
  SO ORDERED, this 20th day of April, 2026. 
             
               ______________________ 
       Eleanor L. Ross 
       United States District Judge 
       Northern District of Georgia 
 
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