ROSELLI v. SMITH

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRANK ROSELLI, : Petitioner, : v. : Civ. No. 17-2196 : SUPERINTENDANT SMITH, et al., : Defendants. :

O R D E R AND NOW, this 2nd day of November, 2020, it is hereby ORDERED that: 1. The Report and Recommendation (Doc. No. 34) is APPROVED and ADOPTED; 2. It is ORDERED that the Petition for Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1) is DENIED with respect to Petitioner’s ineffectiveness claim; 3. It is further ORDERED that the Petition is conditionally GRANTED with respect to Petitioner’s Apprendi claim, subject to Petitioner’s resentencing in state court; 4. The Montgomery County Common Pleas Court shall resentence Petitioner in accordance with the Memorandum in this matter within 90 days of the date of this Order. If that court fails to do so, Petitioner shall be released from custody; 5. A Certificate of Appealability shall NOT ISSUE with respect to the ineffectiveness claim. See 28 U.S.C. § 2253(c)(1)(A); Slack v. McDaniel, 529 U.S. 473, 484 (2000); and 6. The CLERK OF COURT shall CLOSE this case. AND IT IS SO ORDERED.

/s/ Paul S. Diamond _______________________ Paul S. Diamond, J.