Ward v. United States of America
Filing
18
OPINION AND ORDER granting 9 Motion to Vacate, Set Aside or Correct Sentence; vacating judgment in underlying criminal case, Case No. 2:13-cr-20-FTM-29MRM. The Clerk of the Court shall enter judgment accordingly, close the civil file, place a copy of the civil Judgment in the criminal file, and make a notation on the docket that the criminal judgment has been vacated. Signed by Judge John E. Steele on 8/30/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JERRY M. WARD,
Petitioner,
v.
Case No: 2:16-cv-394-FtM-29MRM
Case No. 2:13-CR-20-FTM-29MRM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner’s (amended)
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #9; Cr. Doc.
#147) 1 filed on June 24, 2016, by the Federal Public Defender’s
Office on behalf of defendant pursuant to Omnibus Order in Re:
Amendment 782, United States Sentencing Guidelines, 6:14-mc-78ACC and the Court’s Endorsed Order (Cr. Doc. #145) appointing
counsel on June 13, 2016.
On August 29, 2016, counsel and the
government filed a Joint Stipulation Regarding § 2255 Motion (Cv.
Doc. #17) requesting that the § 2255 Motion be granted, the
1The
Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”
criminal judgment be vacated, and that petitioner be resentenced
without the Armed Career Criminal Act (ACCA) enhancement.
On April 18, 2016, in Welch v. United States, 136 S. Ct. 1257
(2016),
the
United
States
Supreme
Court
determined
that
the
residual clause of the ACCA was unconstitutionally vague, and that
Johnson v. United States, 135 S. Ct. 2551 (2015), announced a
substantive rule that applied retroactively on collateral review.
In light of this decision, and because the parties agree it applies
to remove the Armed Career Criminal Act enhancement in petitioner’s
case,
the
Court
will
grant
relief
and
vacate
the
underlying
criminal judgment.
The Court will also appoint the Federal Public Defender’s
Office for resentencing.
The parties indicate that the parties
are continuing to work on the issue of whether a resentencing
hearing is needed. 1
At this time, the resentencing hearing will
be set.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1 On December 15, 2014, the Court sentenced petitioner to a
term of imprisonment of 180 months, to be served consecutively to
the term of imprisonment in case No. 12-CF-17334, and to be
followed by a term of supervised release. (Cr. Doc. #101.) The
sentence was below the advisory guideline range of 235 months to
293 months based on a number of factors under 18 U.S.C. § 3553(a),
but without the ACCA enhancement, the statutory maximum would be
10 years of imprisonment. (Cv. Doc. #17, ¶ 9.)
- 2 -
1. Petitioner’s (amended) Motion Under 28 U.S.C. Section 2255
to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (Cv. Doc. #9; Cr. Doc. #147) is GRANTED.
2. The Judgment in a Criminal Case (Cr. Doc. #102) is vacated.
3. The Clerk shall appoint the Federal Public Defender’s
Office
to
represent
sentencing.
defendant
for
purposes
of
re-
If the Federal Public Defender’s Office has a
conflict of interest, immediate notice shall be filed and
the next available CJA counsel shall be appointed.
4. The United States Marshal’s Office shall facilitate and
effectuate
the
sentencing.
transportation
of
defendant
for
re-
Defendant shall be available in Fort Myers on
or before October 22, 2016.
5. The United States Probation Office shall issue a memorandum
based
on
the
retroactive
application
of
Johnson,
and
distribute copies of the memorandum to appointed counsel,
the Office of the United States Attorney, and defendant on
or before October 12, 2016.
6. The parties shall appear for re-sentencing before the
undersigned on, Tuesday, November 1, 2016, at 3:30 p.m.,
Courtroom A, Sixth Floor, Fort Myers, Florida.
A separate
notice will issue.
7. The Clerk of the Court shall enter judgment accordingly
and close the civil file.
- 3 -
The Clerk is further directed
to place a copy of the civil Judgment in the criminal file
and to make a notation on the docket that the criminal
judgment has been vacated.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2016.
Copies:
FPD
AUSA
U.S. Marshal
U.S. Probation
- 4 -
30th
day
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