SPERBERG v. MARBERRY

Filing 45

Entry Concerning Selected Matters; petition for writ of habeas corpus is granted; Final judgment will now issue; final judgment will do two things. First, it will vacate the petitioners ACCAenhanced sentence in No. 04-CR-84-S-01. Second, it will dire ct that a copy of the certain materials from the file in this case be forwarded with a copy of the Judgment to the Clerk of the United States District Court for the Western District of Wisconsin for filing in No. 04- CR-84-S-01.. Signed by Judge William T. Lawrence on 10/26/2010. (Served by U. S. mail)(VS) (Entered: 10/26/2010). Signed by Judge William T. Lawrence on 10/26/2010.(VS)

SPERBERG v. MARBERRY

Doc. 45

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA ROLAND C. SPERBERG, vs. Petitioner, ) ) ) ) ) ) ) )

2:09-cv-22-WTL-DML

H.J. MARBERRY, Warden, Respondent.

Entry Concerning Selected Matters The court, having considered the above action and the matters which are pending, makes the following rulings: 1. Consistent with the discussion and Order of the Court of Appeals in Sperberg v. Marberry, 2010 WL 2531856 (7th Cir. June 23, 2010), and with the parties' Local Rule 16.2 statement, the court finds that a remedy under 28 U.S.C. § 2255 is "inadequate or ineffective to test the legality" of Mr. Sperberg's continued detention as that term is used in 28 U.S.C. § 2255(e), that Mr. Sperberg is serving an illegally ACCA enhanced sentence imposed by the United States District Court for the Western District of Wisconsin in No. 04CR-84-S-01, that the ACCA enhanced sentence is because the sentence exceeds the otherwise-applicable statutory maximum for his crime because he is ineligible (and does not qualify) for sentencing as an Armed Career Criminal under 18 U.S.C. § 924(e), and that Mr. Sperberg is therefore entitled to the relief he seeks in this action pursuant to 28 U.S.C. § 2241(c)(3). He is entitled to be resentenced by the court of conviction without the ACCA enhancement. 2. The petition for writ of habeas corpus is granted. Final judgment will now issue. The final judgment will do two things. First, it will vacate the petitioner's ACCAenhanced sentence in No. 04-CR-84-S-01. Second, it will direct that a copy of the certain materials from the file in this case be forwarded with a copy of the Judgment to the Clerk of the United States District Court for the Western District of Wisconsin for filing in No. 04CR-84-S-01. IT IS SO ORDERED.

_______________________________ Date: 10/26/2010 Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

Dockets.Justia.com