Opinion
CASE NO. 5:10-CR-00031 (CAR) 5:12-CV-90121 (CAR)
09-07-2012
SHERMAN DICKEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ON THE RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Currently before the Court is the Recommendation [Doc. 91] of the United States Magistrate Judge on the parties' Joint Motion to Vacate Sentence [Doc. 86] pursuant to 28 U.S.C. § 2255. Based on the parties' stipulation in the Joint Motion, the Magistrate Judge has recommended that the Court enter an order vacating Petitioner's sentence and re-imposing the same sentence in a new judgment to allow Petitioner to file an out-of-time appeal. The parties have waived their right under 28 U.S.C. § 636(b)(1) to file objections to the Magistrate Judge's Recommendation.
After due consideration of the matter, the Recommendation [Doc. 91] is ADOPTED and MADE THE ORDER OF THE COURT. Petitioner's judgment of conviction [Doc. 67] is hereby VACATED but immediately REINSTATED effective as of the date of this Order on the same terms previously entered. Petitioner shall have the opportunity to file a notice of appeal of this reinstated judgment as provided in Fed. R. App. P. 4(b). In addition, Petitioner's Motion to Vacate, Set Aside, or Correct Judgment Pursuant to 28 U.S.C. § 2255 [Doc. 71] is DISMISSED without prejudice.
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C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
AES