1

 In preparing this Report and Recommendation, I have reviewed the following documents:

Mr. Hassan’s habeas petition(s) and memorandum of law in support, the Commonwealth’s

response, and the state court records.

Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

YASSIR HASSAN : CIVIL ACTION 

 :

 v. :

 :

ROBERT J. MALVESTUTO, et al. : NO. 05-757

REPORT AND RECOMMENDATION

M. FAITH ANGELL 

CHIEF UNITED STATES MAGISTRATE JUDGE July 11, 2005

Presently before this Court is a counseled petition for writ of habeas corpus filed under

both 28 U.S.C. §2254 and §2241. Petitioner alleges that he is a citizen of Sudan and a permanent

resident of the United States, that he has been served by the Immigration and Naturalization

Service with a notice of intent to deport him back to Sudan, and that he has a hearing scheduled

before an Immigration Judge in Florida in July 2005. In the instant habeas petition, Mr. Hassan

is challenging a November 20, 1997 conviction for possession with intent to distribute a

controlled substance (marijuana), possession and conspiracy. For the reasons which follow, it is

recommended that the Petition for Writ of Habeas Corpus pursuant to §2254 be denied and

dismissed as untimely under 28 U.S.C. §2244(d)(1), and that Mr. Hassan’s request to treat this as

a §2241 petition be denied.

BACKGROUND1

On November 20, 1997, following a bench trial before the Honorable Felice R. Stack of

the Municipal Court of Philadelphia, Petitioner, Yassin Hassan, was convicted of criminal

Case 2:05-cv-00757-LS Document 10 Filed 07/12/05 Page 1 of 14
 

2 Hereinafter “Commonwealth’s Response.”

 

3 On March 3, 2003, the U.S. Immigration and Customs Enforcement [“ICE”] was

established as part of the Department of Homeland Security. ICE has assumed some of the

functions of the former INS. See Bagot v. Ashcroft, 398 F.3d 252, 255 n.1 (3d Cir. 2005). For

the purposes of this Report and Recommendation, I will, consistent with the pleadings, refer to

INS, and not ICE.

 

4 This is attached as “Exhibit C” to Petitioner’s PCRA petition.

 

5

 42 Pa.C.S.A. §9541 et seq. 

Page 2 of 14

conspiracy, possession of a controlled substance, and possession of a controlled substance with

intent to deliver. The convictions stemmed from Petitioner’s participation in drug transactions

while he was working at a convenience store. He was sentenced to two years probation. 

Commonwealth’s Response to Petition For Writ Of Habeas Corpus [Docket Entry No. 9]2:

Exhibit “B” (November 23, 2004 Superior Court Opinion) at pp. 1-2.

Petitioner did not appeal his conviction. Id: Exhibit “B” (November 23, 2004 Superior

Court Opinion) at p. 2.

On October 23, 2001, the Immigration and Naturalization Service gave Petitioner notice

that he was subject to removal proceedings pursuant to §240 of the Immigration and Nationality

Act based upon his 1997 drug conviction. Commonwealth’s Response: Exhibit “A” (June 18,

2004 PCRA Court Opinion) at p. 1.3 See also State Court Records: INS Notice To Appear (dated

October 23, 2001).4

 On December 9, 2002, Petitioner filed a counseled motion under the Pennsylvania Post

Conviction Relief Act [“PCRA”]5. In this petition, Mr. Hassan asserted the following claims:

“Petitioner alleged the ineffective assistance of counsel, the improper obstruction

by Commonwealth officials of the appellate process, a violation of the

Constitution of the Commonwealth and the laws and Constitution of the United

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6

 For the purposes of this Report and Recommendation, the date of the original habeas

filing, February 17, 2005, will be used in calculating timeliness under 28 U.S.C. §2244(d)(1).

Page 3 of 14

States, a violation of the laws of the United States which would require the

granting of federal habeas corpus relief, and newly discovered evidence. 

Petitioner further challenged the constitutionality of the Post Conviction Relief

Act’s subsumption of post conviction habeas corpus relief.” 

Id.: Exhibit “A” (June 18, 2004 PCRA Court Opinion) at p. 2.

The PCRA Court, after giving Petitioner written notice of intent to dismiss the petition

without a hearing, and after review of the record, dismissed the PCRA petition as untimely on

January 8, 2004. Id.

Petitioner appealed to the Superior Court of Pennsylvania. By Memorandum and Order

dated November 23, 2004, the Superior Court affirmed the denial of PCRA relief, concluding

that Mr. Hassan’s collateral petition was untimely and he did not establish the applicability of

any of the enumerated exceptions to the PCRA time limitation. Commonwealth’s Response:

Exhibit “B” (November 23, 2004 Superior Court Opinion) at pp. 2-6.

Mr. Hassan did not seek discretionary review of the denial of PCRA relief in the

Pennsylvania Supreme Court. 

On February 17, 2005, Counsel on behalf of Mr. Hassan filed a habeas petition. At the

direction of the Honorable Lawrence F. Stengel, a revised habeas petition on a current §2254 form

was filed on April 11, 2005.6

As grounds for habeas relief, Petitioner presents the following issues:

1. “Petitioner was denied due process and the effective assistance of counsel

when trial counsel failed to advise him of his right to appeal de novo to the Court

of Common Pleas from the Municipal Court.

When at sentencing the Court instructed defense counsel to advise

Defendant of his appellate rights. However, defense Counsel’s advisement was

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7 Hereinafter “Habeas Memo.”

Page 4 of 14

deficient as to Petitioner’s right to appeal to the Court of Common Pleas without

specifying any trial error, that the trial decision could be appealed de novo and

that Petitioner would have a right to demand a jury trial. Neither the

Commonwealth nor the Court corrected these deficiencies. Moreover, defense

counsel never consulted with Defendant about the possibility or advantages of

taking an appeal. Accordingly, he never advised Defendant the conviction would

constitute a violation of a probationary sentence he was completing for simple

assault; nor did he advise Defendant that a drug conviction, including conspiracy

would be grounds for a removal proceedings under the Immigration Nationality

Act. After the sentence was imposed and the appeal rights were given, Counsel

was ineffective for failing to consult with Petitioner about the consequences of his

failure to take an appeal. Accordingly, he was denied due process and the

effective assistance of counsel.”

2. “Petitioner was denied his constitutional right to a jury trial by the actions of

the Court and prosecution and the ineffective assistance of counsel. From the

information that Petitioner knew, he had no reason to take an appeal from a

lenient sentence which had no untoward consequences to him such as deportation

and a probation violation. He had no reason to seek advise [sic] of counsel until

more than six years later when he was served by the INS with notice that he was

subject to a move of deportation to Sudan, a country now facing governmental

terrorism and torture.”

3. “The Pennsylvania Courts denied due process by not entertaining Petitioner’s

claims on the merits. Petitioner met two exceptions under the timeliness

requirements of 42 Pa.C.S. §9545(b). In addition, under Pennsylvania’s habeas

corpus statute and constitutional provision, Petitioner should have been granted a

nunc pro tunc appeal to the Court of Common Pleas.” 

Revised Habeas Petition [Docket Entry No. 4] at pp. 9-10. 

In a “Preliminary Memorandum Of Law In Support Of 2241 And 2254 Petition,”

Petitioner requests the following remedy: 

“The relief sought here is to direct that the Court of Common Pleas of

Philadelphia permit Mr. Hassan to file an appeal nunc pro tunc, a remedy that will

permit Mr. Hassan to obtain reinstatement of his right to a jury trial de novo. It is

respectfully submitted that this is the only appropriate form of relief to vindicate

the rights unknowingly, unintelligibly and involuntarily waived by Mr. Hassan.”

“Preliminary Memorandum Of Law In Support Of 2241 And 2254 Petition” [Docket Entry No.

3]7 at pp. 30-31.

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Page 5 of 14

On June 17, 2005, the Commonwealth filed a response to the habeas petition, arguing that

Mr. Hassan is not entitled to federal habeas review or relief because his petition is time-barred. 

The Commonwealth further argues that Petitioner cannot bypass the §2254 statutory

requirements by seeking to proceed under 28 U.S.C. §2241. Commonwealth’s Response at pp. 3,

12.

DISCUSSION

As a threshold matter, I must determine whether Mr. Hassan has standing to directly

challenge his 1997 conviction in a habeas petition. It is well settled that once a prisoner’s

sentence is expired, he is no longer “in custody” under that conviction sufficient for a court to

have subject matter jurisdiction to hear a habeas petition challenging the expired conviction. 

Edwards v. INS, CA No. 03-286, 2003 WL 22495772 at *3 (E.D. Pa. March 31, 2003). 

At first glance, it would appear that a two year term of probation imposed in 1997 would

have been completed before Mr. Hassan filed his habeas petition approximately 8 years later. 

However, as noted by the Pennsylvania Superior Court in 2004, Petitioner’s status is unclear. He

alleged, in the state courts, that he was still subject to probation in this case due to outstanding

detainers. Commonwealth’s Response: Exhibit “B” (November 23, 2004 Superior Court

Opinion) at p. 1 n.1. 

At the initial PCRA level, the Commonwealth did not dispute this, explaining:

“On November 27, 1997, defendant [Petitioner] appeared before the Honorable

Felice R. Stack and, following a waiver trial, he was convicted of possession with

intent to deliver a controlled substance and related charges, the illegal substance

being marijuana. Also on this date, defendant was sentenced to two years

reporting probation, which the court would have allowed to be transferred to

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Page 6 of 14

Florida.6 Defendant failed to follow the conditions of probation and currently

remains in bench warrant/wanted card status by the Philadelphia Department of

Probation.66

______________________________

6 Defendant claimed to have family in Florida and a job working for his cousin in

a ‘quick shop store.’

66 Defendant’s violation of probation is a matter for the sentencing judge, Judge

Stack to address, when defendant comes before her. Notably, defendant is also in

wanted card status for the sentence imposed by the Honorable Jacqueline Allen,

following defendant’s conviction for simple assault, terroristic threats and related

charges.

State Court Records: July 7, 2002 letter addressed to the Honorable D. Webster Keogh from

Kristin M. Olofsson, Assist. District Attorney, PCRA Unit.

In his habeas pleadings, Mr. Hassan represents that he “currently remains on the

probations of both Judges [Stack and Allen].” Habeas Memo at p. 4. The Commonwealth

contends that all probation violation proceedings pending for Mr. Hassan were stayed by the

PCRA Court, upon dismissal of Petitioner’s PCRA petition. Commonwealth’s Response at p. 2. 

See State Court Records: January 8, 2004 Order of the Honorable D. Webster Keogh.

As it appears that Mr. Hassan’s two year term of probation is not expired, I conclude that

he is “in custody” for habeas purposes, and, therefore, this court has subject matter jurisdiction

over his 1997 conviction.

A. Mr. Hassan’s §2254 Habeas Petition Is Untimely And Is Not Subject To Equitable Tolling.

The Antiterrorism and Effective Death Penalty Act of 1996 [“AEDPA” or the “Act”],

signed into law on April 24, 1996, significantly amended the laws governing habeas corpus

petitions. 

One of the amended provisions, 28 U.S.C. §2244(d), imposes a one-year statute of

limitations on state prisoners who seek federal habeas relief. A habeas petition must be 

Case 2:05-cv-00757-LS Document 10 Filed 07/12/05 Page 6 of 14
 

8 The date on which the petitioner’s conviction becomes final is typically the start date for

the limitations period. However, the statute permits the limitation period to run from four

different points in time, depending on which occurs latest. In addition to the date on which the

petitioner’s conviction becomes final, the start date can also run from: (1) “the date on which the

impediment to filing an application created by State action in violation of the Constitution or

laws of the United States is removed, if the applicant was prevented from filing by such State

action”; (2) “the date on which the constitutional right asserted was initially recognized by the

Supreme Court, if the right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review”; or (3) “the date on which the factual

predicate of the claim or claims presented could have been discovered through the exercise of

due diligence.” See 28 U.S.C. §2244(d)(1)(A)-(D).

There is nothing in the pleadings before me to suggest that the start date for the statute of

limitations period should be permitted to run from a point later than the date on which Mr.

Hassan’s conviction became final.

 

9 The AEDPA amendments include a tolling provision for “the time during which a

properly filed application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending.” See 28 U.S.C. §2244(d)(2).

Statutory tolling is not applicable here, where Mr. Hassan’s PCRA petition was filed

Page 7 of 14

filed within one year from the date on which the petitioner’s judgment of conviction becomes

final. See 28 U.S.C. §2244(d)(1).8

In the instant case, Mr. Hassan’s state conviction became final on December 22, 1997, 

when the time for filing a de novo appeal to the Court of Common Pleas (30 days) expired. 

Commonwealth’s Response: Exhibit “B” (November 23, 2004 Superior Court Opinion) at pp. 2-

3 (citing 42 Pa.C.S. §9545(b)(3) for the proposition that a judgment of sentence is final at the

conclusion of direct review or time for seeking direct review).

Petitioner’s habeas statute of limitations began on December 23, 1997 and expired on

December 22, 1998. The instant habeas petition, filed on February 17, 2005, over five years

beyond Petitioner’s statutory deadline, is clearly time-barred under §2244(d)(1). Petitioner

concedes that he “did not file within one (1) year of his conviction on November 20, 1997, as

required by AEDPA.” Habeas Memo at p. 10.9 

Case 2:05-cv-00757-LS Document 10 Filed 07/12/05 Page 7 of 14
almost four years after his habeas statute of limitations had expired. Furthermore, the PCRA

petition was not properly filed within the meaning of §2244(d)(2) because the Superior Court

held that it was untimely under state PCRA law.

Page 8 of 14

Petitioner argues “there are a variety of reasons for finding that the limitations period has

been equitably tolled by Petitioner.” Id.

§2244's one-year statute of limitations is subject to equitable tolling. However, 

“[E]quitable tolling is proper only when the ‘principles of equity would make

[the] rigid application [of a limitation period] unfair.’ Generally, this will occur

when the petitioner has ‘in some extraordinary way . . . been prevented from

asserting his or her rights.’ Moreover, to be entitled to equitable tolling, ‘[t]he

petitioner must show that he or she ‘exercised reasonable diligence in

investigating and bringing [the] claims.’ Mere excusable neglect is not

sufficient.” 

Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir.)(citations omitted), cert.

denied, 539 U.S. 948 (2003).

Equitable tolling may be appropriate where: “(1) the defendant has actively misled the

plaintiff; (2) if the plaintiff has ‘in some extraordinary way’ been prevented from asserting his 

rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.” Jones

v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). 

In support of his argument for equitable tolling of the habeas statute of limitations, Mr.

Hassan asserts: 

“[T]he thrust of this argument relied on the cause, ineffective assistance of trial counsel,

and the prejudice resulting therefrom, i.e., that he was denied the inviolate right to a jury

trial. In addition, there are other factors that are critical, not the least of which are the

facts that Mr. Hassan, after determining that his right had been violated diligently

attempted to exhaust his state remedies within the time constraints that he is under given

the impending deportation proceedings.”

Habeas Memo at p. 10.

Case 2:05-cv-00757-LS Document 10 Filed 07/12/05 Page 8 of 14
 

10 Habeas Memo at p.1.

 

11 The state court records support the conclusion that Petitioner was advised of his right to

appeal to the Court of Common Pleas. Commonwealth’s Response: Exhibit “C” (N.T. 11/20/97)

at pp. 71-72. To the extent that Petitioner argues that this advisement of rights was defective

because Mr. Hassan was not told that a new trial in the Court of Common Pleas would be a de

novo jury trial, as stated above, attorney error does not warrant equitable tolling.

Page 9 of 14

In a non-capital case, attorney error, miscalculation, inadequate research, or other

mistakes do not constitute extraordinary circumstances which warrant equitable tolling. In order

to justify equitable tolling, a habeas petitioner must establish (1) attorney malfeasance and (2)

that petitioner acted with reasonable diligence and that the extraordinary circumstances caused

his habeas petition to be untimely. Schlueter v. Varner, 384 F.3d 69, 76-77 (3d Cir. 2004), cert.

denied, 125 S.Ct. 2261 (2005).

In the instant case, Mr. Hassan has not shown attorney malfeasance. The alleged error by

trial counsel in failing to inform him of “the ramifications of this guilty verdict and more

importantly, of his absolute right to a jury trial de novo in the Court of Common Pleas or even of

his right to file a Writ of Certiorari in that Court[,]”10 does not rise to the level of “sufficiently

egregious” attorney misconduct. See Schlueter, 384 F.3d at 77 (3d Cir. 2004). Furthermore, the

Superior Court found that Mr. Hassan was advised of his right to appeal following the municipal

court conviction. Commonwealth’s Response: Exhibit “B” (November 23, 2004 Superior Court 

Opinion) at p. 4 n.3. This factual finding is presumed correct, and Petitioner has not met his

burden of rebutting it by clear and convincing evidence. See 28 U.S.C. §2254(e)(1).11

Petitioner argues that he has “acted expeditiously in this case,” asserting that he was

unaware that his conviction would be a violation of the Immigration and Nationality Act, and

that when he was served with the INS warrant, “he expeditiously attempted to obtain

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12 This pleading was not docketed of record.

Page 10 of 14

Pennsylvania Counsel.” However, after being served with an INS notice on October 23, 2001,

Petitioner did not file his PCRA petition until over one year later, on December 9, 2002.

I conclude that under the circumstances of Mr. Hassan’s case, the one year habeas statute

of limitations cannot be equitably tolled.

B. Mr. Hassan’s Habeas Petition Is Not Properly Brought Under §2241.

In the alternative, Petitioner argues:

“If the Court is unwilling to provide relief under 2254 because of jurisdictional

limitations, then it is respectfully submitted that a writ can issue pursuant to

§2241.”

Pleading by Petitioner Entitled “Petition for Habeas Corpus Relief Pursuant To 28 U.S.C.

§2241” (Dated March 18, 2005) at ¶8.12 The same remedy - “direct that the Philadelphia Court 

of Common Pleas grant Mr. Hassan the right to a jury trial de novo” - is requested under §2241. 

Id. at p. 2.

Mr. Hassan, whose direct §2254 challenge to his 1997 state conviction is time-barred,

cannot attempt to circumvent AEDPA’s statute of limitations by seeking, in the alternative, to

proceed under 28 U.S.C. §2241. 

In Drakes v. INS, the Third Circuit held that post-AEDPA, a habeas petitioner cannot use

a §2241 proceeding to collaterally attack a state conviction underlying removal proceedings. 

Drakes v. INS, 330 F.3d 600, 606 (3d Cir.), cert. denied, 540 U.S. 1008 (2003). Drakes, a native

of Guyana, brought a §2241 petition challenging the constitutionality of two Delaware

convictions which the INS used to secure the order of Drakes’ removal. The Third Circuit

Case 2:05-cv-00757-LS Document 10 Filed 07/12/05 Page 10 of 14
 

13 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001).

 

14 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001).

Page 11 of 14

extended the Supreme Court’s holdings in Daniels v. United States13 and Lackawanna County

District Attorney v. Coss14 to a collateral attack under §2241 on an expired state criminal

conviction underlying removal proceedings. The Drakes Court concluded:

“We affirm the District Court’s decision to extend the Supreme Court’s holdings

in Daniels and Coss to bar in a section 2241 habeas proceeding a collateral attack

on a prior state conviction where the conviction serves as a predicate for an order

of removal. Drakes closed the door on review of his state convictions by failing

to timely pursue a remedy through direct appeal, state post-conviction review, or a

habeas petition.”

Drakes, 330 F.3d at 606 (3d Cir. 2003). 

The Circuit noted that the Supreme Court has recognized two possible exceptions to the

Daniels/Coss bar against a collateral attack on an underlying conviction that is no longer open to

direct or collateral attack in its own right:

(1) “[. . . ] [D]efendants may challenge the prior conviction where there was a

failure to appoint counsel in violation of the Sixth Amendment, as set forth in

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” 

(2) “[A]n exception in ‘rare cases in which no channel of review was actually

available to a defendant with respect to a prior conviction, due to no fault of his

own.’”

Id. at 605 (3d Cir. 2003).

Various district courts within the Third Circuit have held that a habeas petitioner may not

bring a §2241 challenge to a state conviction that is no longer open to direct or collateral attack

in its own right. See Edwards v. INS, CA No. 03-286, 2003 WL 22495772 at *3-5 (E.D. Pa.

March 31, 2003); Neyor v. INS, 155 F.Supp.2d 127, 137 (D.N.J. 2001)(declining to review the

validity of an expired conviction under §2241 when that conviction served as a predicate for INS

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Page 12 of 14

detention); and Megwa v. BICE, No. 3:05CV336, 2005 WL 1154495 at *2 (M.D. Pa. May 10,

2005)(“An alien may not employ 28 U.S.C. §2241 to challenge the constitutionality of a state

sentence that serves as the basis for removal proceedings. Drakes v. INS, 330 F.3d 600 (2003). 

Instead, he must challenge the conviction by direct review, state collateral review, and a habeas

petition pursuant to 28 U.S.C. §2254. Id. at 606. Here, Megwa seeks to circumvent these steps

and challenge his state conviction under 28 U.S.C. §2241. Drakes has clearly foreclosed 28

U.S.C. §2241 as a potential avenue for the relief Megwa seeks.”) 

In the instant case, I believe that Mr. Hassan clearly falls within the dictates of Drakes. 

The fact that his probationary period has not expired does not alter the fact that his 1997

conviction is no longer open to direct or collateral attack in its own right. Neither of the two

exceptions to the Daniels/Coss rule apply. Under the circumstances of this case, Petitioner is

foreclosed from proceeding under §2241 to collaterally attack his 1997 conviction. See Drakes,

330 F.3d at 605 (3d Cir. 2003)(“allowing Drakes another chance to collaterally attack his prior

convictions would ‘sanction an end run around statutes of limitations and other procedural

barriers that would preclude the movant from attacking the prior conviction directly. Nothing in

the Constitution or [Supreme Court] precedent requires such a result.’ Daniels, 532 U.S. at

383.”).

C. AEDPA’s Statute of Limitations Does Not Violate the Suspension Clause.

Petitioner argues that “[. . .] the one year statute of limitations under the AEDPA also

violates the Suspension Clause of the Constitution as applied to this case.” 

In a recent case, United States v. Bendolph, the Third Circuit has stated:

“Although we have not yet had occasion to reach the question, other courts of

appeals have held the AEDPA statute of limitations constitutional in the face of

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Page 13 of 14

per se challenges brought under the Suspension Clause of the United States

Constitution, Art. 1, §9, cl. 2. See, e.g., Wyzykowshi v. Dep’t of Corr., 226 F.3d

1213, 1217 n. 3 (collecting cases). Cf. Felker v. Turpin, 518 U.S. 651, 664, 116

S.Ct. 2333, 135 L.Ed.2d 827 *1996)(AEDPA’s restrictions on successive

petitions ‘do not amount to a ‘suspension’ of the writ); Swain v. Pressley, 430

U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977)(holding that the Suspension

Clause is violated only where habeas corpus is rendered ‘inadequate or

ineffective’).”

United States v. Bendolph, 409 F.3d 155, 167 fn. 18 (3d Cir. 2005).

I find the analysis of other courts of appeals persuasive, and conclude that AEDPA’s

statute of limitations period does not render the habeas remedy “inadequate or ineffective to test

the legality of detention,” and therefore does not per se constitute an unconstitutional suspension

of the writ. See Wyzykowshi v. Dep’t of Corr., 226 F.3d 1213, 1217 n. 3 (collecting cases). In

addition, Petitioner has not established that the AEDPA limitations period made the habeas

remedy inadequate or ineffective for him, since nothing prevented him from filing a petition

challenging his 1997 conviction before the limitations period expired. See Molo v. Johnson, 207

F.3d 773, 775 (5th Cir. 2000).

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Page 14 of 14

RECOMMENDATION

For the reasons stated above, it is recommended that the Petition for Writ of Habeas

Corpus, pursuant to 28 U.S.C. §2254, be DENIED AND DISMISSED AS TIME-BARRED, and

that Petitioner’s request, in the alternative, to proceed under 28 U.S.C. §2241 be DENIED. It is

further recommended a finding be made that there is no probable cause to issue a certificate of

appealability.

BY THE COURT:

 

M. FAITH ANGELL

CHIEF UNITED STATES MAGISTRATE JUDGE

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