Thornburgh v. USA

Filing 19

ORDER GRANTING (1) PETITIONER'S MOTION FOR RECONSIDERATION, AND (2) VACATING COURT'S ORDER DATED JUNE 14, 2016. Signed on 9/16/16 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION CARL O. THORNBURGH, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) Case No. 16-03026-CV-S-ODS Crim. No. 04-CR-3064-01-S-ODS ORDER GRANTING (1) PETITIONER’S MOTION FOR RECONSIDERATION, AND (2) VACATING COURT’S ORDER DATED JUNE 14, 2016 Earlier this year, Petitioner Carl Thornburgh sought to vacate his sentence pursuant to Johnson v. United States, 1345 S. Ct. 2551 (2015), which held the Armed Career Criminal Act’s (“ACCA”) residual clause is unconstitutional. Doc. #5. The Government opposed Petitioner’s motion, arguing his sentence was still proper under other provisions of the ACCA. Doc. #12. On June 14, 2016, the Court denied Petitioner’s motion based upon the law of the Eighth Circuit at that time. Doc. #15. On June 23, 2016, the Supreme Court issued its decision in Mathis v. United States, 136 S. Ct. 2243 (2015). The Supreme Court reversed the Eighth Circuit’s finding that the Iowa second degree burglary conviction did not qualify as a predicate offense under the ACCA. Id. at 2253. On August 29, 2016, Petitioner filed a “Reply to Government’s Response Opposing Motion to Vacate Sentence” (Doc. #16), which the Court construed as a Motion for Reconsideration. Doc. #17. In response to Petitioner’s motion, the Government waived any objection to the timeliness of Petitioner’s motion, and conceded Petitioner should be resentenced. Doc. #18, at 2. Accordingly, Petitioner’s motion for reconsideration is granted, and the Court finds Petitioner is entitled to relief under 28 U.S.C. § 2255. The Court’s Order dated June 14, 2016 is vacated. Consistent with this Order, the Court will schedule a hearing for resentencing. IT IS SO ORDERED. DATE: September 16, 2016 /s/ Ortrie D. Smith ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

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