Darby v. United States of America(INMATE3)

Filing 22

ORDER; that on or before November 23, 2010, the government shall file a supplemental response as further set out. Signed by Honorable Susan Russ Walker on 11/2/2010. (jg, )

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D a r b y v. United States of America(INMATE3) D o c . 22 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R V IN DARBY, P e titio n e r, v. UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) ) Civil Action No. 2:09cv52-WHA (WO) ORDER In his 28 U.S.C. 2255 motion, Darby contends that he was erroneously sentenced a s an armed career criminal, pursuant to 18 U.S.C. 924(e), when the district court found that h is prior state conviction for escape (in addition to his prior state convictions for arson and b u rg lar y) constituted a "violent felony" for purposes of the Armed Career Criminal Act. U p o n further review of the pleadings, and with particular regard to this claim by Darby, the c o u rt deems it appropriate to require the government to file a supplemental response to the 2255 motion. Accordingly, it is O R D E R E D that on or before November 23, 2010, the government shall file a s u p p le m e n t a l response addressing the following questions: W h e th e r in light of the recent holdings in Begay v. United States, 553 U.S. 137 (2 0 0 8 ), and Gilbert v. United States, 609 F.3d 1159 (11 th Cir. 2010), Darby w a s erroneously sentenced as an armed career criminal and is thus "actually in n o c e n t" of being an armed career criminal, and whether, as a result, he is e n title d to be resentenced without the armed career criminal enhancement and w ith the benefit of any applicable reduction? Dockets.Justia.com D o n e this 2 n d day of November, 2010. /s/Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE 2

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