United States District Court, W.D. Pennsylvania
December 20, 2005.
ROMAN CHRISTOPHER MESINA, Petitioner,
JOHN YOST, WARDEN, F.C.I. LORETTO, Respondent.
The opinion of the court was delivered by: KIM GIBSON, District Judge
Petitioner's third petition for a writ of habeas corpus under
28 U.S.C. § 2241 was referred to Magistrate Judge Keith A. Pesto
for proceedings in accordance with the Magistrates Act,
28 U.S.C. § 636 (b) (1), and subsections 3 and 4 of Local Rule 72.1 for
The Magistrate Judge filed a Report and Recommendation on
November 23, 2005, docket no. 8, recommending that the
petitioner's petition for a writ of habeas corpus be summarily
denied because petitioner needed at the least to complete his
direct appeal before filing a petition for a writ of habeas
corpus under 28 U.S.C. § 2241. As in previous Report and
Recommendations, the Magistrate Judge also observed that a
petition was premature for the additional reason that Section
2255 would be available after direct review was completed.
The petitioner was notified that pursuant to 28 U.S.C. § 636
(b) (1), he had ten days to serve and file written objections to
the Report and Recommendation. The petitioner submitted
objections, docket no. 8, including therein a memorandum opinion
by the Eleventh Circuit, United States v. Mesina, No. 03-14839 (11th Cir. August 16, 2005), indicating that petitioner's
conviction was affirmed after remand by the Supreme Court.
Petitioner states in his brief, docket no. 3-1 at 2, however,
that he has a petition for rehearing en banc pending before the
Eleventh Circuit, and that if he is unsuccessful he plans to file
a petition for writ of certiorari. Because petitioner's direct
appeal is not over, his petition here remains clearly premature.
After de novo review of the record of this matter together
with the Report and Recommendation, and the timely objections
thereto, the following order is entered:
AND NOW, this 20th day of December, 2005, it is
ORDERED that the petitioner's petition for a writ of habeas
corpus is denied. The Report and Recommendation is adopted as the
opinion of the Court. The Clerk shall mark this matter closed.
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