Beltran v. United States of America

Filing 25

ORDER that the Clerk of the Court shall file a copy of this Order in both case numbers listed above; the 12/15/11 Order (Doc. 65 in CR 09-667) is vacated as is the corresponding judgment (Doc. 24); It is further ordered that the 16 Report and Recom mendation is accepted and adopted; the motion to vacate sentence is granted as specified below, and the Clerk of the Court shall enter judgment granting the motion; that as a result of the Court accepting the Report and Recommendation, which recommen ded the Judgment in CR 09-667 at Doc. 35 be vacated, the Judgment is vacated and CR 09-667 is re-opened; that the Government's motion to dismiss the indictment; in CR 09-667 (Doc. 64), without prejudice, is granted; the indictment is dismissed, without prejudice. As a result of this Order, the Clerk of the Court shall close the criminal case; that Beltran be released from custody, if applicable. Signed by Judge James A Teilborg on 01/11/12. (see attached pdf for complete details) (ESL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, Plaintiff, 10 11 vs. 12 Andrew Beltran, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) CR 09-667-PHX-JAT CV 11-0648-PHX-JAT ORDER 15 16 To cure the procedural defects in the December 15, 2011 Order, 17 IT IS ORDERED that the Clerk of the Court shall file a copy of this Order in both 18 case numbers listed above. 19 IT IS FURTHER ORDERED that the December 15, 2011 Order (Doc. 23 in CV 11- 20 648 and Doc. 65 in CR 09-667) is vacated as is the corresponding judgment (Doc. 24 in CV 21 11-648). 22 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 16 in CV 23 11-648) is accepted and adopted; the motion to vacate sentence is granted as specified below, 24 and the Clerk of the Court shall enter judgment granting the motion in CV 11-648. 25 IT IS FURTHER ORDERED that as a result of the Court accepting the Report and 26 Recommendation, which recommended the Judgment in CR 09-667 at Doc. 35 be vacated, 27 the Judgment is vacated and CR 09-667 is re-opened. 28 IT IS FURTHER ORDERED that the Government’s motion to dismiss the indictment 1 in CR 09-667 (Doc. 64), without prejudice, is granted; the indictment is dismissed, without 2 prejudice. As a result of this Order, the Clerk of the Court shall close the criminal case. 3 IT IS FURTHER ORDERED that Beltran be released from custody, if applicable. 4 IT IS FINALLY ORDERED that, given that the Report and Recommendation found 5 that counsel’s legal advice was objectively unreasonable, and had been so under controlling 6 Ninth Circuit precedent since 2005, the Court will forward a copy of this Order and the 7 Report and Recommendation to the Arizona State Bar for a determination of whether Jerry 8 Hernandez’s representation of Mr. Beltran violated the duty of competence. 9 DATED this 11th day of January, 2012. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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