Holloway v. United States of America (INMATE3)

Filing 12

AMENDED ORDER as follows: (1) the 7 Recommendation of the Magistrate Judge is adopted; (2) Ms. Holloway's Section 2255 petition is granted; (3) the judgment of conviction and sentence entered in case no. 2:08CR62 (Doc. 24 in that case) are vac ated; and (4) the Clerk of Court shall file, in case 2:08CR62 copies of this Amended Order and the accompanying Final Judgment along with the Magistrate Judge's 7 Recommendation. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 10/26/09. (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

A M E N D E D ORDER T h is Amended Order VACATES the court's previous Order. (Doc. # 10.) 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. The basis for Ms. Holloway's p e titio n is the recent decision of the Supreme Court in Flores-Figueroa v. United States, 129 S . Ct. 1886, 1888 (2009), which interpreted the aggravated identify theft statute, 18 U.S.C. § 1028A, in a manner contrary to the interpretation of the Eleventh Circuit at the time of Ms. H o llo w a y's sentencing. Ms. Holloway argues, and the Government concedes (Doc. # 6), that h e r conduct would have been insufficient to sustain a conviction under that statute were she b e in g prosecuted today. The Government filed this concession in response to the order (Doc. # 3) of the Magistrate Judge; the Magistrate Judge then filed a Recommendation (Doc. # 7) th a t Ms. Holloway's petition be granted and she be re-sentenced. The court was unclear as

to the basis for the Government's concession, and so ordered (Doc. # 8) a fuller explanation, w h ic h the Government provided (Doc. # 9). U p o n consideration of the foregoing, it is ORDERED that: (1 ) (2 ) (3 ) T h e Recommendation of the Magistrate Judge (Doc. # 7) is ADOPTED; M s . Holloway's Section 2255 petition (Doc. # 1) is GRANTED; T h e judgment of conviction and sentence entered in case no. 2:08-CR-62 (Doc.

# 24 in that case) are VACATED, and; (4 ) T h e Clerk of the Court shall file, in case 2:08-CR-62, copies of this Amended

O rd e r and the accompanying Final Judgment, along with the Magistrate Judge's re c o m m e n d a tio n (Doc. # 7). A n appropriate judgment will be entered. D O N E this 26th day of October, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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