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04-022 - UNITED STATES OF AMERICA v. LOVE


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04-022 - UNITED STATES OF AMERICA v. LOVE
February 7, 2017
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RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/07/2017, that the stays in this case be lifted, that Petitioner's Motion [Doc. #34] and Amended Motion [Doc. #48] to vacate, set aside or correct sentence be granted as to his challenge to his conviction on Count Three but denied otherwise, that the Judgment [Doc. # 16] be vacated, that the conviction on Count Three of the Indictment [Doc. # 1] be vacated and that Count Three be dismissed, that any money paid by Petitioner toward the $100.00 special assessment for Count Three be returned or credited to him as set out above, and that this matter be set for resentencing as to Count One unless the sentencing judge is satisfied as to the original sentence on that Count. (Garland, Leah)
March 23, 2017
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ORDER signed by JUDGE JAMES A. BEATY, JR on 03/20/2017, that the Stays previously entered in this action are LIFTED, that Petitioner's Motion [Doc. #34] and Amended Motion [Doc. #48] to vacate, set aside or correct sentence are GRANTED as to his challenge to his conviction on Count Three but DENIED otherwise, that the Judgment [Doc #16] is VACATED, that the conviction on Count Three of the Indictment [Doc #1] is VACATED and that Count Three is DISMISSED, that any money paid by Petitioner toward the $100.00 special assessment for count three be returned or credited to him as set out in the Recommendation, and the Clerk is directed to set this matter for resentencing as to Count One. Petitioner remains in custody, and the United States Attorney is directed to produce Petitioner for the resentencing hearing. The Probation Office is directed to prepare a Supplement to the Presentence Investigation Report in advance of the hearing. Counsel will be appointed to represent Petitioner at the resentencing hearing. To the extent Plaintiff's Motions under 28 U.S.C. § 2255 have been denied in part, the Court finds no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, and a certificate of appealability is DENIED. (Civil Case number: 12CV782) (Garland, Leah)