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U.S. v. ROSSINI

United States District Court, N.D. Illinois, Eastern Division


May 9, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT ROSSINI, Defendant.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

As of November 14, 2004 Albert Rossini ("Rossini") was seeking to appeal this Court's April 20, 2004 memorandum opinion and order that had dismissed his 28 U.S.C. § 2255 ("Section 2255") motion (which was assigned this District Court's Case No. 04 C 2800), under which Rossini sought to challenge the sentence that this Court had imposed on him following his guilty plea. On November 15 our Court of Appeals issued the attached order ("Order") vacating this Court's judgment of dismissal because Rossini was then before that court on his direct criminal appeal, thus causing the proposed appeal relating to the dismissal of his Section 2255 motion to be premature.

On April 5, 2005 the Court of Appeals then issued its unpublished order that affirmed all of this Court's substantive rulings raised on the direct appeal, going on to enter a limited remand as to sentencing in accordance with the procedure that court had established in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). This Court promptly issued a memorandum order confirming that it would have imposed the same sentence on Rossini under an advisory guideline regime, and on May 4 the Court of Appeals issued an order in the direct appeal proceeding, affirming this Court's judgment in its entirety.

  This memorandum is being issued to inform Rossini that if he still wishes to pursue a Section 2255 motion in light of the intervening events referred to here, he must file a statement to that effect, either incorporating or modifying his earlier motion, on or before May 27, 2005.*fn1 In the absence of such a filing, this Court will operate on the premise that Rossini has decided to forgo seeking such relief based on all the circumstances as they have now evolved. ORDER

  Albert Rossini has filed a notice of appeal from the denial of his motion under 28 U.S.C. § 2255, and an application for a certificate of appealability. Rossini's direct criminal appeal is pending in this court. See No. 04-1298. Accordingly, this action is premature. We therefore VACATE the district court judgment and REMAND the case to the district court with instructions to stay proceedings pending the resolution of Rossini's direct appeal. See United States v. Barger, 178 F.3d 844, 848 (1999).


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