Estes v. United States of America, No. 5:2006cv00165 - Document 2 (N.D.W. Va. 2009)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE MAGISTRATE JUDGE'S SECOND REPORT AND RECOMMENDATION, OVERRULING AS MOOT THE MAGISTRATE JUDGE'S FIRST REPORT AND RECOMMENDATION, GRANTING THE PETITIONER'S PETITION AS TO GROUND FOU R, DENYING AS MOOT WITHOUT PREJUDICE TO REFILING THE PETITIONER'S PETITION AS TO GROUNDS ONE, TWO AND THREE, VACATING THE JUDGMENT IN THIS ACTION AND DIRECTING THE UNITED STATES PROBATION OFFICE TO PREPARE JUDGMENT AND COMMITMENT ORDER as to Cor ey Estes (1): For the reasons set forth, this Court AFFIRMS AND ADOPTS the second [Doc.260 in 5:05-cr-13(1)] Report and Recommendation in its entirety, and OVERRULES AS MOOT the first [Doc.241 in 5:05-cr-13(1)] Report and Recommendation. Accordingly , the petitioner's 1 Motion to Vacate under 28 U.S.C. 2255 is GRANTED IN PART and DENIED IN PART. Specifically, it is ORDERED that the 2255 petition is GRANTED as to ground four and DENIED AS MOOT WITHOUT PREJUDICE as to grounds one, two, and three. It is further ORDERED that the [Doc. 193 in 5:05-cr13(1)] Judgment entered by this Court be VACATED so that an amended judgment may be entered from which the petitioner may file an appeal. The United State Probation Office is DIRECTED to prepare an amended judgment in accordance with the Order. Signed by Senior Judge Frederick P Stamp, Jr on 6/19/2009. (Attachments: # 1 Certified Mail Receipt) (Copy to pro se petitioner (via certified mail/rrr), counsel, US Probation) (kac)