Chioino v. Kernan, No. 3:2006cv00932 - Document 37 (N.D. Cal. 2009)

Court Description: ORDER REMANDING CASE to State Court for resentencing consistent with the decision of the USCA; Signed by Judge Marilyn Hall Patel on 11/6/2009. (Attachments: # 1 CertServ)(awb, COURT STAFF) (Filed on 11/6/2009)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California 10 PATRICK FITZGERALD CHIOINO, 11 Petitioner, 12 13 ORDER UPON REMAND v. SCOTT M. KERNAN, warden, 14 Respondent. / 15 16 No. C 06-932 MHP (pr) Patrick Fitzgerald Chioino filed a pro se petition for a writ of habeas corpus pursuant 17 to 28 U.S.C. § 2254 challenging his 2004 conviction in Monterey County Superior Court. 18 This court granted the petition on his claim that his sentence violated the Apprendi rule and 19 ordered that he be resentenced to 18 years in prison. Respondent appealed. The Ninth 20 Circuit reversed and remanded the case to this court with directions for this court "to amend 21 its order to require that the matter be remanded to the state trial court for resentencing." 22 Chioino v. Kernan, 581 F.3d 1182, 1186 (9th Cir. 2009). The Ninth Circuit's mandate issued 23 recently. Accordingly, the court's order granting petition for writ of habeas corpus is now 24 amended to (a) delete the text beginning at page 11:24 (starting with the beginning of the 25 sentence that begins with the phrase "The record only supports") through the end of the 26 paragraph at page 12:4, and (b) replace that text with the sentence: "Chioino must be 27 resentenced." 28 1 2 3 4 This matter is remanded to the state court for resentencing consistent with the decision of the United States Court of Appeals for the Ninth Circuit. The clerk shall mail a copy of this order to the Monterey County Public Defender at 111 W. Alisal Street, Salinas, CA 93901. 5 IT IS SO ORDERED. 6 DATED: November 6, 2009 Marilyn Hall Patel United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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