trial date. There was more than ample time in the interim for
Ms. Rossini and her new counsel to resolve any issues that stood
in the way of a negotiated plea agreement--if, of course, both
parties were so inclined.

Nothing if not consistent, Ms. Rossini next complains that
attorney Samuels’ replacement, Michael Cohen, Esq., also provided
such ineffective assistance as to deprive her of her Sixth
Amendment right to,counsel. This time her second lawyer’s
claimed deficiencies related to matters that took place after Ms.
Rossini had opted to plead guilty and before she was sentenced.
Again the required prejudice prong of the Strickland analysis
forecloses her claim, because this Court not only granted Ms.
Rossini’s motion to designate a third chosen lawyer, Jeffrey
Steinback, Esq., but it also granted a substantial extension of
time to permit attorney Steinback to prepare for the sentencing
hearing-~a function that he discharged (as always) with
professionalism and vigor.>

Ms. Rossini’s penultimate set of contentions does not assert
any claimed constitutional deprivation, so that Section 2255 can
offer her no solace. But even apart from that factor, which is
conclusive for purposes of the present motion, United States Mem.

8-11 has responded by showing that the arguments Ms. Rossini

5S Among Ms. Rossini’s multiple choices of counsel to
represent her, attorney Steinback has alone escaped attack on
grounds of asserted constitutional inadequacy.

4


To begin with, the United States is correct in identifying
the scope of any possible Section 2255 relief as being limited to
“an error of law that is jurisdictional, constitutional or

constitutes a fundamental defect which inherently results in a

complete miscarriage of justice” (Harris v. United States, 366

F.3d 593, 594 (7 Cir. 2004), quoting Borre v. United States,

940 F.2d 215, 217 (7 Cir. 1991)). And it is equally true that
no evidentiary hearing is called for here, because the motion has
not been “accompanied by a detailed and specific affidavit which
shows that the petitioner had actual proof of the allegations
going beyond mere unsupported assertions” (Galbraith v. United
States, 313 F.3d 1001, 1009 (7 Cir. 2002), quoting Prewitt v.
United States, 83 F.3d 812, 819 (7% Cir. 1996)). But lest that
latter requirement were to be addressed by a further filing from
Ms. Rossini that included such an affidavit, this opinion will
proceed to consider her contentions as though an affidavit had in
fact been supplied.

First, Ms. Rossini’s claim that this Court was guilty of an
“arbitrary denial of a continuance” that somehow deprived her of
the effective assistance of counsel is an egregious effort at
revisionist history. On that score Government Mem. 4-5 reflects
the bulk of the real facts accurately. It is necessary to add
only that with the scheduled trial having been reset to

September 22, 2003 because of one of Ms. Rossini’s several


that a certificate of appealability should be granted as to that
issue (28 U.S.C. §2253(c) (3)).

As to the other issues that Ms. Rossini now seeks to fit
under the rubric of a Section 2255 motion, however, this Court’s
August 31, 2004 memorandum opinion and order (see attached
photocopy) explains why none of those sets out a substantial
showing of the denial of a constitutional right (see 28 U.S.C.
§2253(c) (2)). Accordingly this Court’s view is that no

certificate of appealability should issue as to any of those

CoM. VW evrctec

other issues.

Milton I. Shadur
Senior United States District Judge

Date: September 17, 2004


”

trial date. There was more than ample time in the interim for
Ms. Rossini and her new counsel to resolve any issues that stood
in the way of a negotiated plea agreement--if, of course, both
parties were so inclined.

Nothing if not consistent, Ms. Rossini next complains that
attorney Samuels’ replacement, Michael Cohen, Esq., also provided
such ineffective assistance as to deprive her of her Sixth
Amendment right to counsel. This time her second lawyer’s
claimed deficiencies related to matters that took place after Ms.
Rossini had opted to plead guilty and before she was sentenced.
Again the required prejudice prong of the Strickland analysis
forecloses her claim, because this Court not only granted Ms.
Rossini’s motion to designate a third chosen lawyer, Jeffrey
Steinback, Esq., but it also granted a substantial extension of
time to permit attorney Steinback to prepare for the sentencing
hearing--a function that he discharged (as always) with
professionalism and vigor.®

Ms. Rossini’s penultimate set of contentions does not assert
any claimed constitutional deprivation, so that Section 2255 can
offer her no solace. But even apart from that factor, which is
conclusive for purposes of the present motion, United States Mem.

8-11 has responded by showing that the arguments Ms. Rossini

5 Among Ms. Rossini’s multiple choices of counsel to
represent her, attorney Steinback has alone escaped attack on
grounds of asserted constitutional inadequacy.

4


changes of counsel--a resetting that provided fully two months’
lead time for preparation--still another proposed lawyer of Ms.
Rossini’s choice,’ Thomas Huyck, Esq. came onto the scene at the
last minute to explain that he had just been retained and to ask
for more time so he could prepare himself for trial. No
explanation was then offered for Ms. Rossini’s having made such
last minute arrangements (she had known all along of the firm
September trial date, which had been extended to that time as an
express accommodation to her).

Next Ms. Rossini alleges another deprivation of the
effective assistance of counsel, this time because of a claimed
conflict of interest on the part of her first attorney, Elliot
Samuels, Esq. Ms. Rossini urges that attorney Samuels did not
send to government counsel a copy of Ms. Rossini’s proposed
revisions to the government’s draft plea agreement. Even leaving
aside the government's persuasive showing that Ms. Rossini has
not satisfied the first branch of the required inguiry under

Strickland v. Washington, 466 U.S. 668 (1984), she clearly flunks

Strickland’s second requirement that she demonstrate resulting
prejudice. Attorney Samuels exited the case on July 3, 2003,

fully 80 days before the ultimately scheduled late September

4 As the United States has pointed out accurately, all of
Ms. Rossini’s lawyers, including her proposed lawyer mentioned
next in the text, were retained (or prospectively retained)
counsel of her own choice.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

(03 CR 36)

)
)
)
)
v. } No. 04 C 4799
)
BRENDA SZEJA, )
)
)

Defendant.

STATEMENT AS TO CERTIFICATE OF APPEALABILITY

Brenda Szeja Rossini (*Ms. Rossini”!) has filed a Notice of
Appeal from this Court’s denial of Ms. Rossini’s pro se 28 U.S.C.
§2255 (“Section 2255”) motion (Ms. Rossini having earlier filed a
direct appeal from her conviction and sentence that followed her
entry of a guilty plea). This Court is therefore required to
issue a certificate of appealability or to state the reasons why
such a certificate should not issue (Fed. R. App. P. 22(b)).

As this Court’s July 22, 2004 memorandum order has stated,

Ms. Rossini’s claim based upon Blakely v. Washington, 124 S.Ct.

2531 (2004) and upon our Court of Appeals’ Booker decision
applying Blakely (a decision now on review before the Supreme
Court) can best be raised in conjunction with Ms. Rossini’s

direct appeal (see, e.g., United States v. Barger, 178 F.3d 844,

848 (7 Cir. 1999)). Consequently this Court is of the view

1 Although defendant was indicted as Brenda Szeja (the name
under which she had practiced law), she is now using her married
name Brenda Rossini. This statement, like this Court’s most
recent memorandum opinions and orders, conforms to Ms. Rossini’s
now~preferred usage.


‘Minute Order Form (06/97) «+

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Milton I. Shadur

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 04 C 4799 DATE 9/17/2004
CASE USA vs. Brenda Szeja
TITLE
{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(ap) a Filed motion of { use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due.
(4) Oo Ruling/Hearing on __set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) im} Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial{set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) ClLocal Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).
ao @ [Other docket entry] Enter Statement as to Certificate of Appealability. Consequently this Court
is or the view that a certificate of appealablity should be granted as to that issue (28 U.S.C. 2253(c)(3).
Accordingly this Court’s view is that no certificate of appealability should issue as to any of those other
issues.
di) off [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, vunber af notices
Notices mailed by judge’s staff, af
Notified counsel by telephone, StY a gS
a | Docketing to mail notices i
Mail AO 450 form. qh
Copy to judge/magistrate judge.
Pi: Le ae Ct
courtroom date mailed notice
SN deputy's
initials

~ Date/time;received in
centraP’ Clerk's Office

mailing deputy initials



To begin with, the United States is correct in identifying
the scope of any possible Section 2255 relief as being limited to
“an error of law that is jurisdictional, constitutional or
constitutes a fundamental defect which inherently results in a

complete miscarriage of justice” (Harris v. United States, 366

F.3d 593, 594 (7% Cir. 2004), quoting Borre v. United States,

940 F.2d 215, 217 (7**" Cir. 1991)). And it is equally true that
no evidentiary hearing is called for here, because the motion has
not been “accompanied by a detailed and specific affidavit which
shows that the petitioner had actual proof of the allegations
going beyond mere unsupported assertions” (Galbraith v. United
States, 313 F.3d 1001, 1009 (7 Cir. 2002), quoting Prewitt v.
United States, 83 F.3d 812, 819 (7 Cir. 1996)). But lest that
latter requirement were to be addressed by a further filing from
Ms. Rossini that included such an affidavit, this opinion will
proceed to consider her contentions as though an affidavit had in
fact been supplied.

First, Ms. Rossini’s claim that this Court was guilty of an
“arbitrary denial of a continuance” that somehow deprived her of
the effective assistance of counsel is an egregious effort at
revisionist history. On that score Government Mem. 4-5 reflects
the bulk of the real facts accurately. It is necessary to add ,
only that with the scheduled trial having been reset to

September 22, 2003 because of one of Ms. Rossini’s several


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

(03 CR 36)

)
)
)
)
v. ) No. 04 C 4799
)
BRENDA SZEJA, )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Brenda Szeja Rossini (“Ms. Rossini”!) has earlier filed the
latest of her efforts--this time a pro se 28 U.S.C. §2255
(“Section 2255”) motion and supporting memorandum’--to stave off
the consequences of the criminal conduct to which she pleaded
guilty and on which she has begun to serve her 33-month prison
sentence. As called for by the Order, the United States has
timely filed its response to the portion of the issues raised in

Ms. Rossini’s motion that were not then excluded by the Order.?

1 As this Court’s July 22, 2004 memorandum order (“Order”)
reflected, defendant was indicted as Brenda Szeja but is now
using her married name Brenda Rossini. As did the Order, the
text of this memorandum order will continue to conform to that

current usage.

2 Ms. Rossini is a now-disbarred lawyer of substantial
experience, so that the usual special solicitude with which pro
se filings are scrutinized (Haines v. Kerner, 404 U.S. 519, 520-
21 (1972) (per curiam)) is not involved here.

> Order at 2-3 excepted from consideration, at this
District Court level, any potential issues under Blakely v.
Washington, 124 S.Ct. 2531 (2004), because such issues can best
be directed to our Court of Appeals in connection with Ms.
Rossini’s pending direct appeal.


advances are substantively unpersuasive in any event. This Court
need not repeat the government’s responses, but it simply adds
that they would defeat this aspect of Ms. Rossini’s motion even
if (as is not the case) she could bring herself under the Section
2255 rubric for any of those matters.

Finally, Ms. Rossini’s claims of prosecutorial misconduct
are equally empty. This Court refers to United States Mem. 11-12
for the reasons that compel rejection of these aspects of her
claim, reasons that this Court approves in their entirety.®

Conclusion

In the language of Rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts, “it
plainly appears from the face of the motion and any annexed
exhibits and the prior proceedings in the case that the movant is
not entitled to relief in the district court.” Accordingly the

summary dismissal of the motion is called for (id.), and this

Court so orders.
Chute. Bt.

Milton I. Shadur
Senior United States District Judge

Date: August 31, 2004

®§ This Court has earlier had occasion to comment on the
groundlessness of Ms. Rossini’s reckless attribution of purported
misconduct on the part of Assistant United States Attorney John
Kocoras for allegedly having obtained the entry of an order by
his father, Chief Judge Charles Kocoras. That contention is
patently false, Ms. Rossini had to know that, and it would appear
to provide added grounds for disciplinary proceedings against her
if she were not already disbarred.

5


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

(03 CR 36)

)
)
)
)
v. ) No. 04 C 4799
)
BRENDA SZEJA, )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Brenda Szeja Rossini (“Ms. Rossini”!) has earlier filed the
latest of her efforts--this time a pro se 28 U.S.C. §2255
(“Section 2255”) motion and supporting memorandum*’--to stave off
the consequences of the criminal conduct to which she pleaded
guilty and on which she has begun to serve her 33-month prison
sentence. As called for by the Order, the United States has
timely filed its response to the portion of the issues raised in

Ms. Rossini’s motion that were not then excluded by the Order.?

1 As this Court’s July 22, 2004 memorandum order (“Order”)
reflected, defendant was indicted as Brenda Szeja but is now
using her married name Brenda Rossini. As did the Order, the
text of this memorandum order will continue to conform to that

current usage.

2 Ms. Rossini is a now-disbarred lawyer of substantial
experience, so that the usual special solicitude with which pro
se filings are scrutinized (Haines v. Kerner, 404 U.S. 519, 520-
21 (1972) (per curiam)) is not involved here.

3 Order at 2-3 excepted from consideration, at this
District Court level, any potential issues under Blakely v.
Washington, 124 S.Ct. 2531 (2004), because such issues can best
be directed to our Court of Appeals in connection with Ms.
Rossini’s pending direct appeal.


advances are substantively unpersuasive in any event. This Court
need not repeat the government’s responses, but it simply adds
that they would defeat this aspect of Ms. Rossini’s motion even
if (as is not the case) she could bring herself under the Section
2255 rubric for any of those matters.

Finally, Ms. Rossini’s claims of prosecutorial misconduct
are equally empty. This Court refers to United States Mem. 11-12
for the reasons that compel rejection of these aspects of her
claim, reasons that this Court approves in their entirety.®

Conclusion

In the language of Rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts, “it
plainly appears from the face of the motion and any annexed
exhibits and the prior proceedings in the case that the movant is
not entitled to relief in the district court.” Accordingly the

summary dismissal of the motion is called for (id.), and this

Court so orders.
Clot. D) Sinton

Milton I. Shadur
Senior United States District Judge

Date: August 31, 2004

6 This Court has earlier had occasion to comment on the
groundlessness of Ms. Rossini’s reckless attribution of purported
misconduct on the part of Assistant United States Attorney John
Kocoras for allegedly having obtained the entry of an order by
his father, Chief Judge Charles Kocoras. That contention is
patently false, Ms. Rossini had to know that, and it would appear
to provide added grounds for disciplinary proceedings against her
if she were not already disbarred.

5


that a certificate of appealability should be granted as to that
issue (28 U.S.C. §2253(c) (3)).

As to the other issues that Ms. Rossini now seeks to fit
under the rubric of a Section 2255 motion, however, this Court’s
August 31, 2004 memorandum opinion and order (see attached
photocopy) explains why none of those sets out a substantial
showing of the denial of a constitutional right (see 28 U.S.C.
§2253(c)(2)). Accordingly this Court’s view is that no

certificate of appealability should issue as to any of those

Cet. DSC ctu

other issues.

Milton I. Shadur
Senior United States District Judge

Date: September 17, 2004


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

No. 04 C 4799
(03 CR 36)

Vv.

BRENDA SZEJA,

Defendant.
STATEMENT AS TO CERTIFICATE OF APPEALABILITY

Brenda Szeja Rossini (“Ms. Rossini”') has filed a Notice of
Appeal from this Court’s denial of Ms. Rossini’s pro se 28 U.S.C.
§2255 (“Section 2255”) motion (Ms. Rossini having earlier filed a
direct appeal from her conviction and sentence that followed her
entry of a guilty plea). This Court is therefore required to
issue a certificate of appealability or to state the reasons why
such a certificate should not issue (Fed. R. App. P. 22{b)).

As this Court’s July 22, 2004 memorandum order has stated,

Ms. Rossini’s claim based upon Blakely v. Washington, 124 S.Ct.

2531 (2004) and upon our Court of Appeals’ Booker decision
applying Blakely (a decision now on review before the Supreme
Court) can best be raised in conjunction with Ms. Rossini’s

direct appeal (see, e.g., United States v. Barger, 178 F.3d 844,

848 (7 Cir. 1999)). Consequently this Court is of the view

1 Although defendant was indicted as Brenda Szeja (the name
under which she had practiced law), she is now using her married
name Brenda Rossini. This statement, like this Court’s most
recent memorandum opinions and orders, conforms to Ms. Rossini’s

now-preferred usage.


changes of counsel--a resetting that provided fully two months’
lead time for preparation-~still another proposed lawyer of Ms.
Rossini’s choice,‘ Thomas Huyck, Esq. came onto the scene at the
last minute to explain that he had just been retained and to ask
for more time so he could prepare himself for trial. No
explanation was then offered for Ms. Rossini’s having made such
last minute arrangements (she had known all along of the firm
September trial date, which had been extended to that time as an
express accommodation to her).

Next Ms. Rossini alleges another deprivation of the
effective assistance of counsel, this time because of a claimed
conflict of interest on the part of her first attorney, Elliot
Samuels, Esq. Ms. Rossini urges that attorney Samuels did not
send to government counsel a copy of Ms. Rossini’s proposed
revisions to the government’s draft plea agreement. Even leaving
aside the government’s persuasive showing that Ms. Rossini has
not satisfied the first branch of the required inguiry under

Strickland v. Washington, 466 U.S. 668 (1984), she clearly flunks

Strickland’s second requirement that she demonstrate resulting
prejudice. Attorney Samuels exited the case on July 3, 2003,

fully 80 days before the ultimately scheduled late September

4 As the United States has pointed out accurately, all of
Ms. Rossini’s lawyers, including her proposed lawyer mentioned
next in the text, were retained (or prospectively retained)
counsel of her own choice.