Holloway v. United States of America (INMATE3)

Filing 10

ORDERED that: (1) the 7 Recommendation of the Magistrate Judge is ADOPTED; (2) Ms. Holloway's Section 2255 motion is GRANTED; (3) the Judgment in a Criminal Case filed in case 2:08CR62-WKW (Doc. 26 in that case) is VACATED; (4) this matter is set for resentencing on 10/29/09 at 11:00 a.m.; and (5) Mr Timothy Charles Halstrom, Esq., is APPOINTED under the provisions of the Criminal Justice Act to represent Ms. Holloway at her resentencing. Signed by Honorable William Keith Watkins on 10/22/09. (sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION T A M M Y HOLLOWAY, P e titio n e r, v. UNITED STATES OF AMERICA, R e s p o n d e n t. ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-CV-760-WKW

ORDER O n August 11, 2009, Petitioner Tammy Holloway filed a petition (Doc. # 1) pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct the sentence she received on O c to b e r 29, 2008, in criminal case number 2:08-CR-62-WKW. The basis for Ms.

H o llo w a y's petition is the recent decision of the Supreme Court in Flores-Figueroa v. United S ta te s, 129 S. Ct. 1886, 1888 (2009), which interpreted the aggravated identify theft statute, 1 8 U.S.C. § 1028A, in a manner contrary to the interpretation of the Eleventh Circuit at the tim e of Ms. Holloway's sentencing. Ms. Holloway argues, and the Government conceded (D o c . # 6), that her conduct would not have made her liable under that statute were she being p ro s e c u te d today. The Government filed this concession in response to the order (Doc. # 3) o f the Magistrate Judge; the Magistrate Judge then filed a Recommendation (Doc. # 7) that M s . Holloway's petition be granted and she be resentenced. The court was unclear as to the b a s is for the Government's concession, and so ordered (Doc. # 8) a fuller explanation, which th e Government provided. (Doc. 9.)

Upon consideration of the foregoing, it is ORDERED that: (1 ) The Recommendation of the Magistrate Judge (Doc. 7) is ADOPTED; (2 ) Ms. Holloway's Section 2255 motion is GRANTED; (3 ) The Judgment in a Criminal Case filed in case 2:08-CR-62-WKW (Doc. # 26 in th a t case) is VACATED; (4 ) This matter is SET for resentencing on October 29, 2009, at 11:00 a.m., and; (5 ) Mr. Timothy Charles Halstrom, Esq., is APPOINTED under the provisions of the C rim in a l Justice Act to represent Ms. Holloway at her resentencing. D O N E this 22nd day of October, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

2