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United States v. Hooks

March 1, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
LARRY HOOKS, PETITIONER.



The opinion of the court was delivered by: Honorable Paul L. Maloney

ORDER GRANTING DEFENDANT HOOKS' 42 U.S.C. § 2255 PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Larry Hooks (Defendant), through his attorney, filed a petition for a writ of habeas corpus under 42 U.S.C. § 2255.*fn1 (Dkt. No. 289.) Defendant requests the court resentence him because certain information was improperly included in his presentence investigation report (PSR) and was used to enhance his sentence. Defendant pled guilty to the first count in a superceding indictment, a PSR was prepared, and Defendant was sentenced. Included in the PSR were facts relating to a prior conviction, which has since been dismissed due to improper conduct by an investigating officer. The government does not oppose Defendant's request for resentencing and agrees Defendant should be resentenced based on an updated report that redacts or otherwise amends the PSR to reflect the disposition and dismissal of the prior conviction. The dismissal of the prior state conviction used to enhance a federal sentence is a sufficient reason to grant a § 2255 petition. See Johnson v. United States, 544 U.S. 295, 302-303 (2005).

Therefore, Defendant's petition (Dkt. No. 289) is GRANTEDand his sentence is VACATED. A resentencing hearing has been scheduled for April 12, 2010 at 1:30 p.m. Counsel for the government shall prepare the necessary paperwork to ensure Defendant's presence at the hearing. The Probation Office is ORDERED to prepare a modified presentence investigation report, to be used by this court in sentencing, which reflects the appropriate disposition of Defendant's prior conviction and redacting or otherwise amending the PSR accordingly.

IT IS SO ORDERED.

Paul L. Maloney Chief United States ...


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