Walls v. Romanoski

Filing 28

MEMORANDUM OPINION and ORDER denying Petition for Writ of Habeas Corpus and granting in part a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS C. WALLS,
Petitioner,

Case Number: 2:06-CV-14203

v.

HON. ARTHUR J. TARNOW

KENNETH ROMANOWSKI,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY
Petitioner Thomas C. Walls has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for assault with intent to rob
while armed, felon in possession of a firearm, possession of a firearm during the commission of a
felony, and resisting and obstructing a police officer. He challenges his convictions on the
grounds that the trial court erred in refusing to instruct the jury on felonious assault, the
prosecutor committed misconduct, trial and appellate counsel were ineffective, and the
cumulative effect of the errors violated his right to a fair trial. Respondent, through the Attorney
General’s Office, has filed an answer in opposition to the petition arguing that the claims are
meritless and procedurally defaulted.
I.

Facts
Petitioner’s convictions arise from an incident outside a Kentucky Fried Chicken in

Ferndale, Michigan, on April 21, 2002. Charisse Dorty testified that she worked at the Kentucky
Fried Chicken and that Petitioner worked there until relatively recently. On April 21, 2002, after
the restaurant closed, Dorty saw Petitioner in the parking lot, standing beside a parked car.

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Petitioner was leaning into the driver’s side and wore a bandana on his head and one covering
part of his face. Dorty testified that Petitioner had something silver in his hand, which she
believed was a handgun. She saw Petitioner and two other men run across the street to a parked
van. The van was then driven away, however, Dorty was not sure whether the three men entered
the vehicle before it was driven away.
Lawan Grimes testified that, on April 21, 2002, she was the manager of the Kentucky
Fried Chicken restaurant. Earlier in the month, she fired Petitioner. That evening, Grimes’
brother-in-law, Rodrico Grimes, was waiting for her in the parking lot. Rodrico had driven
Lawan’s vehicle to the restaurant. Peering into the parking lot at Dorty’s urging, Lawan saw
Petitioner leaning into the driver’s side of her vehicle with his face partially covered by a scarf.
Lawan saw a gun in Petitioner’s hand, so she immediately called the police. Lawan testified
that, after several moments, Petitioner walked away from the parking lot and then ran across the
street to a waiting van.
Rodrico Grimes testified that he drove to Kentucky Fried Chicken in his sister-in-law’s
car on the evening of April 21, 2002. While waiting in the parking lot, Petitioner approached the
driver’s side of the vehicle, carrying a gun. Rodrico testified that Petitioner pointed the gun at
him, ordered him to roll down his window, and demanded money. Rodrico told Petitioner that
he had no money. Petitioner then walked away from the vehicle. Rodrico saw three other men
running across the road.
Police officer Adam Daniels testified that he was employed by the Detroit Police
Department and that he and his partner, Mark Busch, were alerted to an armed robbery in their

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patrol area. They saw two individuals matching the description given by dispatch. As their
police vehicle pulled up alongside the two men, both men ran. Officer Daniels testified that one
of the men, later identified as Petitioner, tossed a gun and knife as he ran. After Petitioner was
detained, Officer Daniels recovered the gun and knife. Officer Daniels testified that he secured
the handgun and that it was not loaded.
Officer James Ture of the Ferndale Police Department testified that he assisted in
Petitioner’s arrest. Officer Ture testified that he secured the handgun tossed by Petitioner and
that the weapon had one round in it. The trial testimony did not resolve the apparent conflict
between Officer Daniels’ and Officer Ture’s testimony regarding who secured the weapon and
whether it was loaded.
Detective Thull of the Ferndale Police Department testified that he interrogated Petitioner
the day after the incident. Detective Thull testified that, after advising Petitioner of his Miranda
rights, Petitioner admitted to carrying the handgun and signed a written statement admitting the
same. Detective Thull further testified that Petitioner denied pointing the gun at Rodrico Grimes
and that the gun remained in Petitioner’s waistband the entire time. Petitioner theorized that
Grimes may have glimpsed the gun when he bent over to talk to Grimes.
Petitioner did not testify.
II.

Procedural History
Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of

assault with intent to rob while armed, felon in possession of a firearm, possession of a firearm
during the commission of a felony, and resisting and obstructing a police officer. On March 14,

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2003, he was sentenced as a third habitual offender to 30 to 50 years’ imprisonment for the
assault with intent to rob conviction, 5 to 15 years’ imprisonment for the felon-in-possession
conviction, and 5 to 15 years’ imprisonment for resisting and obstructing a police officer, to be
served concurrently with one another and consecutively to 2 years’ imprisonment for each of the
felony-firearm convictions.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising the following
claim:
The court erred reversibly in refusing to instruct on the lesser included offense of
felonious assault when a rational view of the evidence supports that instruction.
The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Walls, No.
251454 (Mich. Ct. App. Apr. 7, 2005).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising
the same claim raised in the Michigan Court of Appeals and the following additional claim:
The trial court erred reversibly, by allowing the introduction of hearsay (911tapes) to be entered into evidence against the defendant.
The Michigan Supreme Court denied leave to appeal. People v. Walls, No. 128774
(Mich. May 5, 2006).
Petitioner then filed a petition for a writ of habeas corpus, raising the following claims:
I.

The trial court erred when it refused to instruct on the lesser included offense of
felonious assault when a rational view of the evidence supports that instruction.

II.

The prosecutor’s closing arguments improperly shifted the burden of proof and
set forth a personal belief in guilt thereby denying Petitioner a fair trial.

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Petitioner did not exhaust his state court remedies for his prosecutorial misconduct claim.
The Court, therefore, stayed the petition to allow Petitioner to fulfill the exhaustion requirement.
Petitioner filed a motion for relief from judgment in the trial court, raising these claims:
I.

The prosecution’s closing arguments improperly shifted the burden of
proof setting forth his personal belief in the defendant’s guilt, while
making derogatory and prejudicial inferences that defendant admitted his
faults in the crime thereby depriving defendant of constitutional right to
remain silent.

II.

Defendant was deprived of his constitutional right to the effective assistance of
trial counsel for failure to object to the prosecution’s personal belief in
defendant’s guilt, burden shifting arguments and prosecutorial misconduct by
commenting on defendant’s right to remain silent.

III.

Defendant was deprived of his constitutional right to effective assistance of
appellate counsel, for failure to raise the claims stated in this motion, visit
defendant, advise or consult defendant before filing appellate issues, refusal to
respond to defendant’ repeated request to go over specific appellate issues as well
as refusal to respond to defendant’s grievances filed against counsel, and filing
defendant’s appellate brief after defendant had filed a grievance and sought new
appointed counsel.

The trial court denied relief from judgment. People v. Walls, No. 02-184922 (Oakland
County Circuit Court Nov. 14, 2008). Petitioner’s applications for leave to appeal were denied
by the Michigan Court of Appeals and Michigan Supreme Court. People v. Walls, No. 290108
(Mich. Ct. App. Apr. 15, 2009); People v. Walls, No. 138924 (Mich. Nov. 23, 2009).
The Court then granted Petitioner’s request to reopen his habeas proceedings. Petitioner
raises these claims:
I.

The prosecutor’s closing arguments improperly shifted the burden of proof and
set forth a personal belief in guilt thereby denying Petitioner a fair trial.

II.

Petitioner was deprived of his right to the effective assistance of counsel for
failure to object to the prosecution’s personal belief in Petitioner’s guilt, burden
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shifting arguments and prosecutorial misconduct by commenting on Petitioner’s
right to remain silent.
III.

Petitioner was denied the right to the effective assistance of appellate counsel for
failure to raise the claim stated in this petition, visit Petitioner, advise or consult
Petitioner before filing appellate issues, refusal to respond to Petitioner’s repeated
request to go over specific appellate issues as well as refusal to respond to
Petitioner’s repeated grievances filed against counsel, and filing Petitioner’s
appellate brief after Petitioner has filed a grievance against counsel.

IV.

The cumulative effects of the prosecutor’s burden shifting closing arguments,
ineffective of trial and appellate counsel deprived Petitioner of his constitutional
right to a fair trail and appeal.

V.

The trial court erred when it refused to instruct on the lesser included offense of
felonious assault when a rational view of the evidence supports that instruction.

VI.

The trial court decision denying Petitioner’s claims for relief on all the issues in
his state court motion resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
United States Supreme Court and the decision by trial court was based on an
unreasonable determination of the facts in light of the evidence presented in the
State Courts.

Respondent has filed an answer in opposition, arguing that the claims are procedurally
defaulted and meritless.
III.

Standard
28 U.S.C. § 2254(d) provides:
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)
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

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(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 proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule
that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S.
12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court to ‘grant the
writ if the state court identifies the correct governing legal principle from [the Supreme] Court
but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539
U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal
court find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state
court’s decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted);
see also Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 789 (2011),
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the view
that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the
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claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether
the state court’s decision comports with clearly established federal law as determined by the
Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412.
Section 2254(d) “does not require citation of [Supreme Court] cases – indeed, it does not even
require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of
the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the
principles of “clearly established law” are to be determined solely by resort to Supreme Court
rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness
of a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007),
citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV.

Discussion
A.

Prosecutorial Misconduct

Petitioner’s first through fourth and sixth habeas claims relate to the prosecutor’s closing
arguments. He argues that the prosecutor, in rebuttal, improperly shifted the burden of proof and

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set forth a personal belief in Petitioner’s guilt. He further argues that his trial attorney was
ineffective in failing to object to the remarks and appellate counsel was ineffective for failing to
raise this issue on direct appeal. Finally, Petitioner argues that the cumulative effect of these
errors denied him his right to a fair trial.
Respondent argues that these claims are procedurally defaulted. “[F]ederal courts are not
required to address a procedural-default issue before deciding against the petitioner on the
merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing Lambrix v. Singletary, 520
U.S. 518, 525 (1997). “Judicial economy might counsel giving the [other] question priority, for
example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar
issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In this case, the
Court finds that the interests of judicial economy are best served by addressing the merits of
Petitioner’s claims.
The “clearly established Federal law” relevant to a habeas court’s review of a
prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright, 477
U.S. 168, 181 (1986). Parker v. Matthews, __ U.S.__, 132 S. Ct. 2148, 2153, (June 11, 2012).
In Darden, the Supreme Court held that a “prosecutor’s improper comments will be held to
violate the Constitution only if they ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). This Court must ask whether the Michigan Court of Appeals’ (which, despite finding
the claims not properly preserved, nevertheless, denied them on the merits) decision denying
Petitioner’s prosecutorial misconduct claims “‘was so lacking in justification that there was an

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error well understood an comprehended in existing law beyond any possibility for fairminded
disagreement.’” Parker, __ U.S. at __, 132 S. Ct. at 2155, (quoting Harrington, 562 U.S. at __,
131 S. Ct. at 786-87.
First, Petitioner argues that the prosecutor shifted the burden of proof. He identifies the
following portions of the prosecutor’s closing argument as improper:
You know, the fact of defendant’s statement, and we have all this . . . that there
wasn’t a mask, that there was a mask, this or that, when you look at his statement
and it brings to mind the adage that sometimes people admit the small faults and
hope that you forgive them for the big ones that they do.
...
We know that Mr. Walls had a long time to think about this story, he’s picked up
at midnight, we know that he was interviewed by Detective Thull at five o’clock
the next day. A lot of time to sit around and think about what you’re gonna tell
the police.
Mr. Walls had that opportunity to sit for hour upon hour to decide what he was
gonna say. The other three witnesses that testified, the People’s witnesses, they
didn’t.
Tr., 6/2/3, 46-47.
The trial court denied these claims in its decision denying relief from judgment and that
is the last reasoned state court opinion on these claims. The trial court found no misconduct,
holding that the prosecutor’s rebuttal was a proper, direct response to defense counsel’s attempt
to impeach and discredit certain prosecution witnesses by portraying them as confused about
certain issues, such as how many people were involved and whether a hat, mask, or bandana was
used by the perpetrator. The trial court also found that the prosecutor’s reference to Petitioner’s
own statements was not an attempt to shift the burden of proof or otherwise improper. The trial

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court reasoned that the Petitioner’s statements were properly admitted and that the prosecution
was free to comment on those statements and the credibility of those statements.
“[P]rosecutors can argue the record, highlight the inconsistencies or inadequacies of the
defense, and forcefully assert reasonable inferences from the evidence.” Bates v. Bell, 402 F.3d
635, 646 (6th Cir.2005). The prosecutor’s rebuttal did just that. It was not improper for the
prosecutor to attempt to explain why certain eyewitnesses’ testimony may have been
inconsistent; nor was it improper for the prosecutor to contrast the eyewitnesses’ statements,
given near in time to the incident, with Petitioner’s statements, given after time for reflection.
The prosecutor’s argument did not shift the burden of proof. The argument was a reasonable
response to defense counsel’s closing. Thus, this Court finds that the state court’s decision that
no prosecutorial misconduct occurred was not “so far out of line with the very general standard”
established in Darden as to entitle Petitioner to habeas relief. Davis v. Lafler, 658 F.3d 525, 535
(6th Cir. 2011) (en banc).
Next, Petitioner argues that his trial attorney was ineffective in failing to object to the
prosecutor’s argument and that appellate counsel was ineffective in failing to raise this issue on
appeal. To establish that he received ineffective assistance of counsel, a petitioner must show,
first, that counsel’s performance was deficient and, second, that counsel’s deficient performance
prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner may
show that counsel’s performance was deficient by establishing that counsel’s performance was
“outside the wide range of professionally competent assistance.” Id. at 689. This “requires a

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showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id. at 687.
To satisfy the prejudice prong, a petitioner 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. A court’s review of counsel’s performance must be “highly
deferential.” Id. at 689. Habeas relief may be granted only if the state-court decision
unreasonably applied the standard for evaluating ineffective-assistance-of-counsel claims
established by Strickland. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). “The 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.” Id. at 123 (internal quotation omitted).
The state court denied Petitioner’s ineffective assistance of counsel claims based upon its
holding that the prosecutor did not commit misconduct. Counsel is not required to raise
meritless objections, and appellate counsel is not required to raise meritless claims. Given this
Court’s holding that Petitioner failed to show prosecutorial misconduct, the trial court’s denial of
Petitioner’s ineffective assistance of counsel claims is a reasonable application of Strickland.
Nevertheless, the Court will briefly address Petitioner’s ineffective assistance of appellate
counsel claim.
Petitioner argues that appellate counsel was ineffective in failing to raise the
prosecutorial misconduct issue on appeal. In addition, Petitioner complains that appellate

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counsel failed to meet with him personally and failed to apprise him of the progress of his
appeal. He filed a complaint with the Michigan Appellate Assigned Counsel System (MAACS).
In 2005, MAACS held that appellate counsel failed to represent Petitioner in accordance with the
Minimum Standards for Indigent Criminal Appellate Defense Services, by failing to personally
interview Petitioner or to keep him apprised of the progress of his case. See Complaint
Determination, 3/24/05, attached to petition as appendix “A.” Despite appellate counsel’s
obviously sub-par performance (which satisfies Strickland’s first prong), habeas relief is not
warranted on this claim because Petitioner fails to satisfy Strickland’s prejudice prong. As
discussed, Petitioner cannot establish ineffective assistance where counsel failed to raise a
meritless claim. In addition, while the Court is dismayed by appellate counsel’s failure to
consult with her client, Petitioner does not identify nor does the Court discern any claims counsel
should have raised which would have had even a small chance of success on appeal. Thus, while
counsel’s conduct fell below the minimum standards, it was not constitutionally ineffective and
habeas relief is denied.
Finally, Petitioner argues that the cumulative effect of the prosecutorial misconductrelated claims denied him his right to a fair trial. The cumulative weight of alleged
constitutional trial errors in a state criminal proceeding does not warrant federal habeas relief
because there is no clearly established federal law permitting or requiring the cumulation of
distinct constitutional claims to grant habeas relief. Moore v. Parker, 425 F.3d 250, 256 (6th
Cir. 2005). Therefore, habeas relief is denied on this claim.

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B.

Jury Instruction

Petitioner next seeks habeas corpus relief on the ground that the trial court erred in
refusing to instruct the jury on the lesser included offense of felonious assault.
“In a criminal trial, the State must prove every element of the offense, and a jury
instruction violates due process if it fails to give effect to that requirement. Nonetheless, not
every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due
process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (internal citation omitted).
An erroneous jury instruction warrants habeas corpus relief only where the instruction “‘so
infected the entire trial that the resulting conviction violates due process.’” Estelle v. McGuire,
502 U.S. 62, 72 (1991), (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). “[I]t must be
established not merely that the instruction is undesirable, erroneous, or even ‘universally
condemned,’ but that it violated some [constitutional] right.” Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974). The jury instruction “‘may not be judged in artificial isolation,’ but must
be considered in the context of the instructions as a whole and the trial record.” Estelle, 502 U.S.
at 72 (quoting Cupp, 414 U.S. at 147).
The Eighth Amendment and the Due Process Clause require that a trial court instruct the
jury on lesser included offenses in the context of a capital case. See Beck v. Alabama, 447 U.S.
625, 637-38 (1980) (holding that a trial court is required to instruct on lesser included offenses
where the failure to do so would result in the jury being given an “all or nothing” choice of
convicting on the capital charge or acquitting the defendant). However, “the Constitution does
not requires a lesser-included offense instruction in non-capital cases.” Campbell v. Coyle, 260

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F.3d 531, 541 (6th Cir. 2001). As the Sixth Circuit has noted, even where a lesser offense
instruction is requested, the failure of a court to instruct on a lesser included or cognate offense
in a non-capital case is generally “not an error of such magnitude to be cognizable in federal
habeas corpus review.” Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990) (en banc); see also,
Scott v. Elo, 302 F.3d 598, 606 (6th Cir. 2002). Because there is no clearly established Supreme
Court law which requires the giving of a requested lesser offense instruction in the non-capital
context, as is required for habeas relief under § 2254(d)(1), habeas relief is denied on this claim.
See Samu v. Elo, 14 F. App’x 477, 479 (6th Cir. 2001); Kuroda v. Bell, No. 2:07-CV-12310,
2007 WL 1657410, at *2 (E.D. Mich. June 7, 2007) (Cohn, J.); Adams v. Smith, 280 F. Supp. 2d
704, 717 (E.D. Mich. 2003) (Tarnow, J.).
V.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules
Governing Section 2254 Proceedings requires that the Court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation
omitted).

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The Court concludes that reasonable jurists could debate its holding on Petitioner’s claim
that his appellate attorney was ineffective. Thus, the Court grants a COA as to that issue, and
denies a COA as to the remaining issues.
VI.

Conclusion
For the reasons stated, the Court DENIES the petition for a writ of habeas corpus. The

Court GRANTS a certificate of appealability for Petitioner’s ineffective assistance of appellate
counsel claim, and DENIES a certificate of appealability for Petitioner’s remaining claims.
SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: January 18, 2013
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on January 18, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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