Opinion
Civil Action No. 3:13-CV-1012 JVB
12-10-2014
CHARLES KINGERY, Petitioner, v. SUPERINTENDENT, Respondent.
OPINION AND ORDER
Charles Kingery, a pro se prisoner, is serving a 55-year sentence for a murder and robbery committed in Marion County, Indiana. State v. Kingery, No. 49G03-9302-CF-01748. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.) This Court has previously set out the procedural posture of this case in detail. (DE 14.)
Kingery's habeas petition raises one claim: that his enhanced murder sentence violates Blakely v. Washington, 542 U.S. 296 (2004). (DE 1 at 4.) In the respondent's recent filing, he concedes that Kingery's sentence does, in fact, run afoul of Blakely and the respondent requests one hundred eighty (180) days to commence resentencing proceedings so that the State of Indiana may sentence Kingery in a manner that satisfies the procedural requirements of Blakely. (DE 22.)
In a case such as this, habeas corpus relief must be conditionally granted. "Conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one." Wilkinson v. Dotson , 544 U.S. 74, 87 (2005) (Scalia J., concurring). Thus, the State of Indiana is free to resentence Charles Kingery, providing that it files appropriate documents in the State trial court seeking such relief within 180 days of this Order.
Accordingly, the court GRANTS a conditional writ of habeas corpus. The State of Indiana may either release Charles Kingery or commence proceedings to resentence him within one hundred eighty (180) days. The respondent is ORDERED to file a notice in this court within 180 days of this Order demonstrating that the State of Indiana has either released Charles Kingery or initiated resentencing proceedings against him.
SO ORDERED on December 10, 2014.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division