Whaley v. USA, No. 4:2016cv00341 - Document 5 (E.D. Mo. 2016)

Court Description: OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk of Court shall notify the United States Probation Office of movants § 2255 amended motion to vacate and that it is brought pursuant to the Supreme Court case of Johnson v. Uni ted States,135 S.Ct. 2551 (2015). IT IS FURTHER ORDERED that, within a reasonable time, and in its usual course of business, the United States Probation Office shall prepare and file in movants criminal case a new Resentence Report relative to mova nts contentions under Johnson, which shall be filed under seal, with access to the Court and the parties who have entered their appearance in this matter. IT IS FURTHER ORDERED that within fourteen (14) days of the filing of the Probation Offices Disclosure Copy of the Resentence Report, the parties shall file, in movants criminal case, simultaneous objections to the Resentence Report or statements that they have no objection. Within seven (7) days of such time, the Office of Probation and Pretrial Services shall file a final copy of the Resentence Report in movants criminal case. IT IS FURTHER ORDERED that on the same day as the Final Resentence Report is filed by the Probation Office in the criminal case, the Government shall file its response to movants amended motion to vacate in this case. IT IS FURTHER ORDERED that any reply to the Governments response to the amended motion to vacate shall be filed, in this case, no later than fourteen (14) days from the date the response is filed. Signed by District Judge Henry Edward Autrey on 6/1/16. (KJS)
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Whaley v. USA Doc. 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION TIMOTHY WHALEY, Movant, v. UNITED STATES OF AMERICA, Respondent, ) ) ) ) ) ) ) ) ) No. 4:16CV341 HEA OPINION, MEMORANDUM AND ORDER Before the Court is movant’s amended motion to vacate, brought pursuant to 28 U.S.C. § 2255. In his amended motion to vacate, movant seeks a reduction in his sentence pursuant to the recent Supreme Court case of Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court of the United States held the “residual clause” of the Armed Career Criminal Act (“the ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutionally vague. As movant was convicted under the ACCA and as it appears from the motion to vacate that he is relying on Johnson as the basis for his arguments for resentencing, this Court will request assistance from the United States Probation Office for the Eastern District of Missouri in reviewing movant’s § 2255 petition. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall notify the United States Probation Office of movant’s § 2255 amended motion to vacate and that it is brought pursuant to the Supreme Court case of Johnson v. United States,135 S.Ct. 2551 (2015). IT IS FURTHER ORDERED that, within a reasonable time, and in its usual course of business, the United States Probation Office shall prepare and file in movant’s criminal case a Dockets.Justia.com new Resentence Report relative to movant’s contentions under Johnson, which shall be filed under seal, with access to the Court and the parties who have entered their appearance in this matter. IT IS FURTHER ORDERED that within fourteen (14) days of the filing of the Probation Office’s Disclosure Copy of the Resentence Report, the parties shall file, in movant’s criminal case, simultaneous objections to the Resentence Report or statements that they have no objection. Within seven (7) days of such time, the Office of Probation and Pretrial Services shall file a final copy of the Resentence Report in movant’s criminal case. IT IS FURTHER ORDERED that on the same day as the Final Resentence Report is filed by the Probation Office in the criminal case, the Government shall file its response to movant’s amended motion to vacate in this case. IT IS FURTHER ORDERED that any reply to the Government’s response to the amended motion to vacate shall be filed, in this case, no later than fourteen (14) days from the date the response is filed. Dated this 1st day of June, 2016 ___________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE 2