Cox v. United States of America (INMATE3)

Filing 99

ORDERED as follows: 1) Petitioner's motion is GRANTED to the extent he moves the court to vacate his sentence. It is otherwise DENIED; 2) Pursuant to 28 USC § 2255(b), Petitioner's original sentence, imposed on 6/19/2008, in case numbe r 3:07-cr-106-WKW-WC-1, is VACATED, as further set out; 3) The parties' pending 73 & 86 Motions are DENIED as moot; 4) The 79 Recommendation of the Magistrate Judge is REJECTED as moot; 5) The Clerk of the Court is DIRECTED to file this or der in both the above-captioned case and the underlying criminal case, 3:07-cr-106-WKW-WC-1; 6) The Clerk of the Court is DIRECTED to close this case. Signed by Chief Judge William Keith Watkins on 2/1/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JUDSON MARSHALL COX,

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Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

CASE NO. 3:09-CV-448-WKW

ORDER
This matter was heard in open court on January 31, 2013.
The Government conceded that Petitioner is capable of proving that his original
trial counsel failed to inform him prior to his guilty plea of the Government’s Notice
of Information to Establish Conviction Pursuant to 21 U.S.C. § 851. The Government
further conceded that under the specific facts of this case, this failure constituted
ineffective assistance of counsel and that the proper relief is for Petitioner’s original
sentence to be vacated and him to be re-sentenced.
Accordingly, it is ORDERED as follows:
1. Petitioner’s motion is GRANTED to the extent he moves the court to vacate
his sentence. It is otherwise DENIED.
2. Pursuant to 28 U.S.C. § 2255(b), Petitioner’s original sentence, imposed on
June 19, 2008, in case number 3:07-cr-106-WKW-WC-1, is VACATED. The court

will re-sentence Petitioner and will file an amended judgment in the underlying
criminal case, 3:07-cr-106-WKW-WC-1.
3. The parties’ pending motions (Docs. # 73, 86) are DENIED as moot.
4. The Recommendation of the Magistrate Judge is REJECTED as moot.
5. The Clerk of the Court is DIRECTED to file this order in both the abovecaptioned case and the underlying criminal case, 3:07-cr-106-WKW-WC-1.
6. The Clerk of the Court is DIRECTED to close this case.
DONE this 1st day of February, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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