Henry v. Cain et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS 24 . Signed by Judge Mary Ann Vial Lemmon.(cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DUANE HENRY

CIVIL ACTION

VERSUS

NO. 15-5011

N. BURL CAIN, WARDEN, LOUISIANA
STATE PENITENTIARY

SECTION “S”(4)

ORDER
The Court, having considered the complaint, the record, the applicable law, the Report and
Recommendation of the United States Magistrate Judge, and the petitioner’s objection to the
Magistrate Judge’s Report and Recommendation, hereby approves the Report and
Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
Petitioner argues that the United States Magistrate Judge erred in finding that the matter should be
returned to state court because the state court will impose another illegal sentence. The United
States Magistrate Judge recommends granting the petition and ordering the Orleans Parish
Criminal District Court to resentence or release petitioner within 90 days of the date of this Order.
This is the correct result for the reasons stated in the Report and Recommendation.
Therefore,
IT IS ORDERED that Duane Henry’s petition for issuance of a writ of habeas corpus
under 28 U.S.C. § 2254 is GRANTED, his sentence to life in prison without benefit of parole is
VACATED, and the Orleans Parish Criminal District Court is ORDERED to, within ninety (90)
days of issuance of this Order, either resentence Henry, otherwise bring his sentence into
conformity with Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012), or release Henry from
confinement.

November

28th
New Orleans, Louisiana, this ____ day of _________________________, 2016.

____________________________________
UNITED STATES DISTRICT JUDGE