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James Wilson Calloway v. Brenda M. Cash

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


February 5, 2013

JAMES WILSON CALLOWAY,
PETITIONER,
v.
BRENDA M. CASH, WARDEN
RESPONDENT.

The opinion of the court was delivered by: The Honorable Ronald M. Whyte U.S. District Judge

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

16 state prison serving a sentence of 25 years to life under California's Three Strikes law 17 18 that was imposed in 2001. On August 20, 2009, this Court denied petitioner's petition 19 for writ of habeas corpus and granted him a certificate of appealability. 21 memorandum granting habeas relief on May 3, 2012. In reliance on Wilson v. 22 23 Petitioner/appellant James Wilson Calloway is confined in a California This case is on remand to this Court as a result of the Ninth Circuit's Knowles, 638 F.3d 1213 (9th Cir. 2011), the Ninth Circuit concluded, with regard to 24 the question of whether one of petitioner's prior convictions constituted a "strike," that 25 the state trial court "erred in not permitting the jury to determine whether Calloway 26 actually inflicted great bodily injury upon his 1993 assault victim and, thereby, 27 1violated Calloway's clearly established constitutional right to a jury trial."

Memorandum at 4. The Ninth Circuit held that petitioner's "petition for habeas relief 3 must be granted." Ibid. It issued the mandate on January 16, 2013. 4 5

IT IS HEREBY ORDERED that petitioner James Wilson Calloway's 6 petition for writ of habeas corpus is granted, and the requested writ shall therefore 7 issue. 8 IT IS FURTHER ORDERED that petitioner's sentence is VACATED, 9 10 and his case is REMANDED to the Superior Court of California for the County of San 11 Mateo for re-sentencing in a manner consistent with the views stated in the Ninth 12 Circuit's memorandum decision and the precedent case Wilson v. Knowles, 638 F.3d 13 1213 (9th Cir. 2011). 14 15

IT IS FURTHER ORDERED that the State of California shall

16 commence any resentencing proceedings within 45 days of the date of service of this 17 order on the San Mateo County District Attorney's office. 18

20130205

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