Holloway v. United States of America (INMATE 3), No. 2:2009cv00760 - Document 12 (M.D. Ala. 2009)
Court Description: AMENDED ORDER as follows: (1) the 7 Recommendation of the Magistrate Judge is adopted; (2) Ms. Holloway's Section 2255 petition is granted; (3) the judgment of conviction and sentence entered in case no. 2:08CR62 (Doc. 24 in that case) are vac ated; and (4) the Clerk of Court shall file, in case 2:08CR62 copies of this Amended Order and the accompanying Final Judgment along with the Magistrate Judge's 7 Recommendation. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 10/26/09. (sl, )
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Holloway v. United States of America (INMATE 3) Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION TAMMY HOLLOWAY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 2:09-CV-760-WKW AMENDED ORDER This Amended Order VACATES the court’s previous Order. (Doc. # 10.) On August 11, 2009, Petitioner Tammy Holloway filed a petition (Doc. # 1) pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct the sentence she received on October 29, 2008, in criminal case number 2:08-CR-62. The basis for Ms. Holloway’s petition is the recent decision of the Supreme Court in Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888 (2009), which interpreted the aggravated identify theft statute, 18 U.S.C. § 1028A, in a manner contrary to the interpretation of the Eleventh Circuit at the time of Ms. Holloway’s sentencing. Ms. Holloway argues, and the Government concedes (Doc. # 6), that her conduct would have been insufficient to sustain a conviction under that statute were she being prosecuted today. The Government filed this concession in response to the order (Doc. # 3) of the Magistrate Judge; the Magistrate Judge then filed a Recommendation (Doc. # 7) that Ms. Holloway’s petition be granted and she be re-sentenced. The court was unclear as Dockets.Justia.com to the basis for the Government’s concession, and so ordered (Doc. # 8) a fuller explanation, which the Government provided (Doc. # 9). Upon consideration of the foregoing, it is ORDERED that: (1) The Recommendation of the Magistrate Judge (Doc. # 7) is ADOPTED; (2) Ms. Holloway’s Section 2255 petition (Doc. # 1) is GRANTED; (3) The judgment of conviction and sentence entered in case no. 2:08-CR-62 (Doc. # 24 in that case) are VACATED, and; (4) The Clerk of the Court shall file, in case 2:08-CR-62, copies of this Amended Order and the accompanying Final Judgment, along with the Magistrate Judge’s recommendation (Doc. # 7). An appropriate judgment will be entered. DONE this 26th day of October, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 2
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