Rivera v. Superintendent of SCI-Forest

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NELSON HERNANDEZ RIVERA, No. 4:22-CV-01603

Petitioner, (Chief Judge Brann)

v.

SCI-FOREST SUPERINTENDENT,

Respondent.

MEMORANDUM OPINION

NOVEMBER 7, 2023

Petitioner Nelson Hernandez Rivera, (“Rivera”), an inmate confined in the

Forest State Correctional Institution, Marienville, Pennsylvania, files the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a

sentence imposed in the Court of Common Pleas of Luzerne County in criminal

case CP-40-CR-0002098-2017.

For the reasons set forth below, the petition for writ of habeas corpus, which

is governed by the Antiterrorism and Effective Death Penalty Act of 1996,

Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”), will be denied.

I. BACKGROUND

The relevant facts and procedural history, extracted from the Pennsylvania

Superior Court’s December 3, 2019 decision, affirming Rivera’s judgment of

sentence, are as follows:

The affidavit of probable cause and notes of testimony from the guilty

plea and sentencing hearings reveal that Appellant and Evelyn Almonte

(“Victim”), who “grew up together” and were from “the same village”

in the Dominican Republic, were in a romantic relationship, had a

daughter, and resided in Luzerne County. N.T. (Sentencing), 1/4/19, at

12-13. The affidavit of probable cause reveals that the security guard

at the Crystal Barbecue Bar observed Appellant and Victim arguing at

11:30 p.m. on March 19, 2017. At approximately 1:40 a.m. on March

20, 2017, Appellant “grabbed [Victim] by the hair” when he observed

her sitting with an unknown male. Affidavit of Probable Cause, 5/9/17,

at 1. Ten or fifteen minutes later, Victim left the bar, followed by

Appellant. Id. The security guard followed them outside and saw

Appellant “stabbing [Victim] viciously and repeatedly in the chest” . .

. “at least 15 times to vital parts of her body.” Id.; N.T. (Guilty Plea),

10/29/18, at 8. The security guard fired his gun twice, striking

Appellant once in the leg. Affidavit of Probable Cause, 5/9/17, at 2.

Appellant was charged with one count of attempted homicide and one

count of aggravated assault as a result of the stabbing. Appellant pled

guilty to attempted homicide1 on October 29, 2018, and the

Commonwealth agreed to withdraw the charge of aggravated assault.

Plea Agreement, 10/29/18, 1-3; N.T. (Guilty Plea), 10/29/18 at 3. The

trial court sentenced Appellant on January 4, 2019, to eighteen to forty

years in prison. N.T. (Sentencing), 1/4/19, at 17. Appellant filed a

post-sentence motion on January 14, 2019, which the trial court denied

on May 2, 2019. Appellant filed a timely notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.2

By Memorandum Opinion dated December 3, 2019, the Pennsylvania

Superior Court granted a motion to withdraw by appellate counsel and

affirmed Petitioner’s judgment of sentence.3

1 18 Pa.C.S. §§2501(a) and 901(a).

2 Doc. 17-1 at 73-75.

3 Id.

On July 9, 2020, Rivera filed a pro se motion for post-conviction collateral

relief (PCRA).4 The procedural history of Rivera’s PCRA petition is set forth by

the trial court as follows:

A pro se motion for post-conviction collateral relief was filed by

Defendant on July 9, 2020. After receiving Defendant’s motion, an

order was issued on November 16, 2020, which appointed conflict

counsel to represent him. On January 13, 2021, appointed counsel

submitted a no-merit letter and filed a motion to withdraw as counsel.

In the letter and motion, appointed counsel indicated that he reviewed

the file, communicated with Defendant and determined that Defendant

had no PCRA claim and his petition had no merit.

Following a review of Defendant’s motion, appointed counsel’s no

merit letter, motion to withdraw and an independent review of the

record established in this case, an order was issued granting appointed

counsel’s request to withdraw. A Notice of Intention to Dismiss

Motion for Post Conviction Collateral Relief pursuant to Pa.R.Crim.P.

907 was filed on February 3, 2021.

Although Defendant was served with a copy of the Notice of Intention

to Dismiss, he did not respond. Because Defendant’s PCRA motion

had no merit, it was dismissed on March 2, 2021. On March 16, 2021,

a Notice of Appeal which was dated March 1, 2021, and appears to be

signed by Defendant, was filed. The notice of appeal does not include

a statement that the order appealed from had been entered on the docket

and no date is provided for the order resulting in the appeal.

A Rule 1925(a) opinion was filed on May 11, 2021. This opinion

recommended that the appeal be quashed due to Defendant’s failure to

comply with Pa.R.A.P. 301(a)(1) and Pa.R.A.P. 904(d). On October

22, 2021, the Superior Court of Pennsylvania filed a non-precedential

decision which remanded the case for the filing of a supplemental Rule

1925(a) opinion. In the decision, the Superior Court determined that

Defendant was appealing the order dated March 2, 2021 even though

the notice of appeal filed by Defendant was dated March 1, 2021 which

4 Doc. 17-1 at 146.

was prior to the existence of the March 2 order and several days before

Defendant would have received the March 2 order by certified mail.

The March 2, 2021 order dismissed the motion for post-conviction

collateral relief filed by [Appellant] on July 9, 2020. In his July 9

motion, Appellant raised two issues. Defendant’s first issue was based

on the ineffective assistance of counsel for failure to challenge the

legality of sentence where the sentence imposed is beyond the statutory

maximum in violation of the Sixth and Fourteenth Amendments of the

Federal Constitution and Article I Section 9 of the Pennsylvania

Constitution.

. . . .

The second claim made by Defendant in his motion for post-conviction

collateral relief is that he suffered a miscarriage of justice due to the

imposition of a sentence beyond the statutory maximum in violation of

the Sixth and Fourteenth Amendments of the Federal Constitution and

Article 1 Section 9 of the Pennsylvania Constitution. This allegation

appears to be filed pursuant to 42 Pa.C.S.A. Section 9543(a)(2)(vii) in

that the sentence imposed was greater than the lawful maximum.5

On November 18, 2021, the trial court, in accordance with the Superior

Court’s remand, issued a Supplemental Opinion Pursuant to Rule 1925(a)(1),

determining that its March 2, 2021 order dismissing the motion for post-conviction

collateral relief should be affirmed based on the findings that Rivera’s guilty plea

was knowingly, voluntarily and intelligently entered after a thorough colloquy was

completed, Rivera was sentenced within the standard range of the sentencing

guidelines and his sentence did not exceed the statutory maximum.6

5 Doc. 17-1 at 137-144.

6 Id.

In a Memorandum Opinion filed January 21, 2022, the Superior Court

affirmed, finding Rivera’s underlying counsel claim to have no arguable merit as

the sentence imposed was not greater than the lawful maximum, and Rivera’s

additional claims of ineffective assistance of counsel waived, as they were raised

for the first time on appeal.7

Presently before the Court for review is Rivera’s federal petition, in which he

raises the following three grounds for review:

1. The trial court abused its discretion in sentencing the Petitioner

at the top-end of the standard range of the sentencing guidelines.

2. Trial counsel and post-sentence counsel rendered ineffective

assistance in failing to challenge the legality of sentence where

sentence imposed is beyond statutory maximum allowed in

violation of Six and Fourteenth Amendment of the Federal

Constitution.

3. Defendant suffered a miscarriage of justice in that sentencing

court imposed a sentence beyond statutory maximum allowed in

violation of Sixth and Fourteenth Amendment of the Federal

Constitution.8

For relief, Petitioner requests this Court “vacate his sentence and remand

back to the State for resentencing under Attempted Murder without the Seriously

Bodily Injury enhancement.”9

7 Doc. 17-1 at 145-150.

8 Doc. 1.

9 Id.

II. DISCUSSION

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper

mechanism for a prisoner to challenge the “fact or duration” of his confinement.10

Petitioner’s case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”). 28

U.S.C. § 2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

...

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding....11

Section 2254 sets limits on the power of a federal court to grant an application for

a writ of habeas corpus on behalf of a state prisoner.12 A federal court may

10 Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973).

11 28 U.S.C. § 2254.

12 Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d

Cir. 2014).

consider a habeas petition filed by a state prisoner only “on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.”13

This limitation places a high threshold on the courts. Typically, habeas relief will

only be granted to state prisoners in those instances where the conduct of state

proceedings resulted in a “fundamental defect which inherently results in a

complete miscarriage of justice” or was completely inconsistent with rudimentary

demands of fair procedure.14

Further, a federal habeas court may not consider a petitioner’s claims of

state law violations; review is limited to issues of federal law.15

A. Merits Analysis

Under the AEDPA, federal courts reviewing a state prisoner’s application

for a writ of habeas corpus may not grant relief “with respect to any claim that was

adjudicated on the merits in State court proceedings” unless the claim (1) “resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States” or (2) “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

13 28 U.S.C. § 2254(a).

14 See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994).

15 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions.”); Pulley v.

Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a

perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state

prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable.”).

proceeding.”16

“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice

systems, and not as a means of error correction,”17 “[t]his is a difficult to meet and

highly deferential standard . . . which demands that state-court decisions be given

the benefit of the doubt.”18 Here, the burden is on Hernandez Rivera to prove

entitlement to the writ.19

A decision is “contrary to” federal law if “the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] cases” or “if the state

court confronts a set of facts that are materially indistinguishable from a decision

of [the Supreme] Court and nevertheless arrives at a result different from [Supreme

Court] precedent.”20 “[A] state court decision reflects an ‘unreasonable application

of such law’ only ‘where there is no possibility fairminded jurists could disagree

that the state court’s decision conflicts with [the Supreme] Court’s precedents,’ a

standard the Supreme Court has advised is ‘difficult to meet’ because it was ‘meant

to be.’ [Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770. As the Supreme

Court has cautioned, an ‘unreasonable application of federal law is different from

16 28 U.S.C. § 2254(d).

17 Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations and citations omitted),

18 Cullen, 563 U.S. at 181(internal quotation marks and citation omitted).

19 Id.

20 Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

an incorrect application of federal law,’ Richter, 562 U.S. at 101, 131 S.Ct. 770

(quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), and whether we ‘conclude[ ]

in [our] independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly’ is irrelevant, as AEDPA sets a

higher bar. Williams, 529 U.S. at 411, 120 S.Ct. 1495.”21 A decision is based on

an “unreasonable determination of the facts” if the state court’s factual findings are

objectively unreasonable in light of the evidence presented to the state court.22

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue shall be presumed to

be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

B. Ineffective Assistance of Counsel

The clearly established ineffective assistance of counsel standard as

determined by the Supreme Court of the United States is as follows:

Ineffective assistance of counsel claims are “governed by the familiar

two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464 F.3d 423,

438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123

S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For AEDPA purposes, the

Strickland test qualifies as “clearly established Federal law, as

determined by the Supreme Court.” Williams, 529 U.S. at 391, 120

S.Ct. 1495. Under Strickland, a habeas petitioner must demonstrate

21 Mathias v. Superintendent Frackville, SCI, 876 F.3d 462, 476 (3d Cir. 2017).

22 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

that: (1) counsel’s representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for

counsel’s error, the result would have been different. 466 U.S. at 687,

104 S.Ct. 2052. For the deficient performance prong, “[t]he proper

measure of attorney performance remains simply reasonableness under

prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. This review

is deferential:

A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective at the time. Because of the difficulties inherent in

making the evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally

unreasonable, ... warrant[s] setting aside the judgment of a

criminal proceeding.” Id. at 691, 104 S.Ct. 2052. “Even if a

defendant shows that particular errors of counsel were

unreasonable, ... the defendant must show that they actually

had an adverse effect on the defense”; in other words, the

habeas petitioner must show that he was prejudiced by

counsel’s deficient performance. Id. at 693, 104 S.Ct. 2052.

To establish prejudice, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694,

104 S.Ct. 2052.

In assessing an ineffective assistance of counsel claim, “the ultimate

focus of inquiry must be on the fundamental fairness of the

proceeding.... In every case the court should be concerned with whether

... the result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to

produce just results.” Id. at 696, 104 S.Ct. 2052.23

When the state court has decided the claim on the merits, “[t]he question ‘is

not whether a federal court believes the state court’s determination’ under the

Strickland standard ‘was incorrect but whether that determination was

unreasonable—a substantially higher threshold.’ ”24 “And, because the Strickland

standard is a general standard, a state court has even more latitude to reasonably

determine that a defendant has not satisfied that standard.”25

The Superior Court stated that the proper standard governing ineffective

assistance of counsel claims is as follows:

In order to overcome that presumption, “a PCRA petitioner must plead

and prove that: (1) the legal claim underlying the ineffectiveness claim

has arguable merit; (2) counsel’s action or inaction lacked any

reasonable basis designed to effectuate petitioner’s interest; and (3)

counsel’s action or inaction resulted in prejudice to petitioner.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

In determining whether counsel had a reasonable basis, the issue is not

“whether there were other more logical courses of action which counsel

could have pursued[,]” but “whether counsel’s decisions had any

reasonable basis.” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa.

2014) (citations omitted). If it is a matter of strategy, we will not find a

lack of reasonable basis unless “an alternative not chosen offered a

potential for success substantially greater than the course actually

pursued.” Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). In

order to demonstrate prejudice, “a petitioner must show that there is a

reasonable probability that, but for counsel’s actions or inactions, the

23 Rainey v. Varner, 603 F.3d 189, 197–98 (3d Cir. 2010).

24 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)).

25 Id.

result of the proceeding would have been different.” Mason, supra at

389. All three prongs of the test must be satisfied in order for a

petitioner to be entitled to relief. Id.26

The United States Court of Appeals for the Third Circuit has specifically

held that the very ineffectiveness assistance of counsel test relied upon by the

Superior Court in this matter is not contrary to the Supreme Court’s Strickland

standard.27 Therefore, this Court finds that the Superior Court’s decision is not

contrary to Strickland.

Petitioner also raises three claims for relief that all relate to an

unconstitutionally excessive sentence; namely that the state court abused its

discretion when sentencing Petitioner, trial and post-sentence counsel failed to

object to or raise the issue of the unconstitutional sentence and, as a result of the

alleged unconstitutionally excessive sentence, Petitioner has suffered a miscarriage

of justice.

Generally, sentencing is a matter of state criminal procedure, which does not

fall within the purview of federal habeas review.28 “[A] federal court will not

normally review a state sentencing determination which, as here, falls within the

statutory limit.”29 A criminal sentence violates the Constitution only when it is

26 Commonwealth v. Diaz, 1965 EDA 2019 at 5-6, 237 A.3d 436, 2020 WL 2200741 (Pa.

Super. 2020) (unpublished memorandum).

27 See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).

28 See Jones v. Superintendent, 725 F.2d 40, 43 (3d Cir. 1984); see also Estelle v. McGuire,

502 U.S. 62, 67 (1991).

29 Gleason v. Welborn, 42 F.3d 1107, 1112 (7th Cir. 1994).

extreme and “grossly disproportionate” to the crime.30 As the Supreme Court of

the United States has counseled, “outside the context of capital punishment,

successful challenges to the proportionality of particular sentences will be

exceedingly rare.”31

In affirming the PCRA court’s denial of post-conviction relief, the Superior

Court rejected this claim on its merits as follows:

A review of the record shows that the underlying claim (i.e., sentence

imposed is illegal because it is beyond the statutory maximum) is of no

merit. Appellant was convicted of attempted murder resulting in

serious bodily injury. The statutory maximum sentence for attempted

homicide with serious bodily injury is 40 years. See 18 Pa.C.S.A. §

1102(c). Appellant’s sentence of 216 months to 480 months, therefore,

does not exceed the statutory maximum. See also PCRA Opinion,

11/18/21, at 4.

Because Appellant’s underlying claim has no arguable merit, we do not

need to address the other ineffective assistance prongs. See, e.g.,

Commonwealth v. Ly, 980 A.2d 61, 74 (2009) (“A failure to satisfy any

of the prongs of the [Commonwealth v. Pierce, 527 A.2d 973 (1987)]

test required rejection of a claim of ineffective assistance of trial

counsel). Accordingly, no relief is due to Appellant on his ineffective

assistance of counsel claim.

Appellant next raises the very same claim, i.e., sentence imposed is

illegal because it is beyond the statutory maximum, as a challenge

under 42 Pa.C.S.A. § 9543(a)(2)(vii), which permits a claim under the

PCRA that “the imposition of a sentence [was] greater than the lawful

maximum.” As noted above, however, the sentence imposed here was

not greater than the lawful maximum. Accordingly, the instant claim

does not fare any better than the previous one.32

30 Graham v. Florida, 560 U.S. 48, 60 (2010).

31 Solem v. Helm, 463 U.S. 277, 289–90 (1983) (brackets omitted).

32 Doc. 17-1 at 169-170.

This federal habeas court may not grant relief unless I determine that the

state appellate court’s decision on the merits was an unreasonable application of

Solem, or that it was based on an unreasonable determination of the facts. Based

on the record before the Superior Court, there is nothing to suggest that the

Superior Court applied Solem v. Helm to the facts of this claim in an objectively

unreasonable manner, nor is there anything to suggest an unreasonable

determination of the facts by the state court. Petitioner’s sentence with respect to

the offense of Criminal Attempt (1st Degree Murder) where the victim suffers

serious bodily injury fell within the statutory limits established by the Pennsylvania

General Assembly.33

Here, Petitioner has failed to establish a claim for ineffective assistance of

sentencing counsel because the Superior Court expressly determined that his claim

of illegal sentence was without merit.34 This Court finds that counsel’s decision to

not object to a meritless claim and PCRA counsel’s35 decision to forego raising a

33 See 18 Pa.C.S.A. § 1102(c).

34 As to Petitioner’s claim that the sentencing judge abused his discretion by sentencing

Petitioner at the high end of the sentencing guideline range, a that court’s sentencing

discretion is not cognizable in a federal habeas petition. Jones v. Superintendent of Rahway

State Prison, 725 F.2d 40, 42–43 (3d Cir. 1984).

35 Additionally, the Court finds that claims of ineffective assistance of PCRA counsel are not

cognizable in federal habeas proceedings. See 28 U.S.C. § 2254(i) (“The ineffectiveness

or incompetence of counsel during Federal or State collateral post-conviction proceedings

shall not be a ground for relief in a proceeding arising under section 2254.”); see also

Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right to counsel in

collateral post-conviction proceedings); Coleman v. Thompson, 501 U.S. 722, 755 (1991)

(no constitutional right to counsel on appeal from initial collateral post-conviction

proceedings).

meritless claim did not violate professional norms.36 Counsel’s failure to object to

a meritless claim could not possibly have prejudiced Petitioner.37 Hernandez

Rivera has therefore not suffered a miscarriage of justice and is not entitled to

habeas relief on any of the three claims he raises before this Court for review.

III. CERTIFICATE OF APPEALABILITY

“Under the Antiterrorism and Effective Death Penalty Act of 1996

(‘AEDPA’), a ‘circuit justice or judge’ may issue a COA [certificate of

appealability] only if the petitioner ‘has made a substantial showing of the denial

of a constitutional right.’ ”38 “Where a district court has rejected the constitutional

claims on the merits, ... the petitioner must demonstrate that reasonable jurists

would find the district court's assessment of the constitutional claims debatable or

wrong.”39

For the reasons set forth above, this Petitioner has not made a substantial

showing of the denial of a constitutional right or that jurists of reason would find it

debatable that Court’s assessment of the claims debatable or wrong. Accordingly,

a COA will not issue.

36 See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (“Appealing losing issues ‘runs

the risk of burying good arguments ... in a verbal mound made up of strong and weak

contentions.’”) (citations omitted).

37 See Strickland, 466 U.S. 668.

38 Tomlin v. Britton, 448 Fed.Appx. 224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)).

39 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

IV. CONCLUSION

For the reasons set forth above, the Court will deny the petition for writ of

habeas corpus.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge