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DEL PIANO v. UNITED STATES

No. 77-2064.

575 F.2d 1066 (1978)

Frank R. DEL PIANO, Appellant, v. UNITED STATES of America.

United States Court of Appeals, Third Circuit.

Decided April 26, 1978.

Attorney(s) appearing for the Case

Fern H. Schwaber, Asst. Defender, Defender Ass'n of Phila. Federal Division, Philadelphia, Pa., for appellant.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Division, James D. Coleman, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether a prisoner is entitled to a de novo sentencing proceeding before a judge entertaining a motion pursuant to 28 U.S.C. § 2255,1 under circumstances in which the original sentencing judge has died and the petitioner has established that his sentence was imposed in violation of the rule of

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