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06-2743 - Cole, Jr. v. United States of America


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06-2743 - Cole, Jr. v. United States of America
September 13, 2007
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VACATED AND HELD FOR NAUGHT PER ORDER 58 Memorandum Opinion and Order re 1 Motion Pursuant to 28 USC 2255 filed by Acie Cole, Jr. The application for a writ of habeas corpus is Granted. The sentence previously pronounced is vacated and the Court will order the defendant to be returned for re-sentencing at which time the defendant will have the opportunity to engage in allocution prior to the pronouncement of the sentence. The Court also finds that no other constitutional violations have been established by the defendant and so his remedy in this case is limited to a re-sentencing at which time he will have the opportunity to engage in allocution. The Court will publish a separate order granting the writ and establishing a date for re-sentencing. Signed by Judge David D. Dowd Jr. on 9/13/2007. (M,De) Modified text on 6/6/2008 to indicate document is vacated and held for naught. (M,De).
June 6, 2008
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Memorandum Opinion as to Acie Cole, Jr. that the Court's prior order 40 dated September 13, 2007 in case # 4:06CV2743 granting the defendant's application for a writ of habeas corpus for the limited purpose of re-sentencing the defendant, is vacated and held for naught. The Court will publish a Judgment Entry denying the defendant's application for a writ of habeas corpus. The Court will also indicate that there are no grounds advanced by the defendant which would justify the issuance of a certificate of appealability. Finally, as the Court is of the view that the defendant will be in transit back to his place of incarceration, it may be difficult for the defendant to file a timely notice of appeal. The Court requests that the Federal Defender's Office file forthwith a notice of appeal on behalf of the defendant from the judgment in this case. The Court will not request the Federal Defender's office to undertake the representation of the defendant because the Federal Defender's office had represented a co-defendant. In the event the defendant requests the Court to appoint counsel for him to prosecute an appeal from this order, the Court will request the Sixth Circuit to appoint counsel for the defendant to prosecute the appeal from the judgment of the Court. A copy of this opinion and order was mailed to the defendant at his address at his place of incarceration in California. The Marshal is requested to serve a copy of this Memorandum Opinion and Judgment on the defendant, if in fact the defendant is still in the district awaiting transportation to his place of incarceration in California. If the Marshal is successful in serving a copy of this Memorandum Opinion and Judgment on the defendant before he departs the district, the Marshal is requested to so indicate in writing. Judge David D. Dowd, Jr on 6/6/08 (M,De). Modified text on 6/11/2008 (H, SP).