McGlothin v. Warden, Warren Correctional Institution
Filing
23
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reviewed the Report and Objections pursuant to the Recommittal Order, the Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice, that McGlothin be denied a certificate of appealability, and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 11/25/2013. Signed by Magistrate Judge Michael R Merz on 11/6/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CAMERON McGLOTHIN,
Petitioner,
:
- vs -
Case No. 1:09-cv-48
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
WANZA JACKSON, Warden,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 21) to
the Magistrate Judge’s Report and Recommendations (the “Report,” Doc. No. 20). District
Judge Barrett has recommitted the case to the Magistrate Judge for reconsideration in light of the
Objections (Order, Doc. No. 22).
Petitioner pled six Grounds for Relief. The Report concluded Ground Five was moot
because the relief it requested had already been granted by the Ohio courts. Petitioner makes no
objection to the proposed disposition of Ground Five. The Report recommends dismissal of the
other five Grounds with prejudice and Petitioner objects as to each of them. The Objections will
be analyzed seriatim.
Ground One: Denial of a New Trial
In his First Ground for Relief, McGlothin claims he was denied due process of law under
1
the Fourteenth Amendment when the trial court refused to grant him a new trial. On direct
appeal, McGlothin asserted that the trial court’s denial of a new trial was a violation of Ohio R.
Crim. P. 33(A)(6). The Report concluded that McGlothin had not presented this as a federal
constitutional claim to the state courts and thus had procedurally defaulted any constitutional
claim (Report, Doc. No. 20, PageID 2330-31). McGlothin objects that he did in fact fairly
present this claim as a federal constitutional claim to the state courts (Objections, Doc. No. 21,
PageID 2349-52).
To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way that provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner
v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).
Merely using talismanic constitutional phrases like “fair trial” or “due process of law”
does not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236
(6th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228
F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984);
Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)(same). “A lawyer need not develop a
constitutional argument at length, but he must make one; the words ‘due process’ are not an
argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).
If a petitioner’s claims in federal habeas rest on different theories than those presented to
2
the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d
313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)(“relatedness” of a
claim will not save it).
A state prisoner ordinarily does not ‘fairly present’ a federal claim to a state court if that
court must read beyond a petition, a brief, or similar papers to find material that will alert it to
the presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004).
A petitioner fairly presents a federal habeas claim to the state courts only if he asserted
both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6th Cir. 2004),
citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); and Picard v. Connor, 404 U.S.
270, 276, 277-78 (1971).
In determining whether a petitioner "fairly presented" a federal
constitutional claim to the state courts, we consider whether: 1) the
petitioner phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a
denial of the specific constitutional right in question; 2) the
petitioner relied upon federal cases employing the constitutional
analysis in question; 3) the petitioner relied upon state cases
employing the federal constitutional analysis in question; or 4) the
petitioner alleged "facts well within the mainstream of [the
pertinent] constitutional law."
Hicks at 552-53, citing McMeans, 228 F.3d at 681.
McGlothin concedes that the sole case cited by him on this assignment of error on direct
appeal was State v. Condon, 157 Ohio App. 3d 26, 2004-Ohio-2031 (1st Dist. 2004) (Objections,
Doc. No. 21, PageID 2350). McGlothin also concedes that the Condon court “focused primarily
on Ohio R. Crim. P. 33” but also held “fundamental fairness and the interests of justice” support
the position the Condon court took. Id., quoting Condon at ¶ 19.
3
McGlothin’s citation of Condon does not satisfy the fair presentation criteria adopted by
the Sixth Circuit in Hicks, supra. In the state court , McGlothin (1) did not phrase his claim in
terms of any federal constitutional right; (2) did not cite any federal cases; (3) Condon, the sole
case on which McGlothin relied, did not employ any federal constitutional analysis – a court’s
claiming that its position is required by fundamental fairness and justice is not federal
constitutional analysis; (4) the facts relied on are not within the mainstream of any particular
federal constitutional right.
McGlothin has in fact even in this Court cited no federal
constitutional law authority for the proposition that a new trial is compelled when a critical
witness was “unavailable” at the first trial because he or she stood on the Fifth Amendment
privilege.
McGlothin does cite Sanders v. Sullivan, 863 F.2d 218 (2nd Cir. 1988), where the Second
Circuit held in a habeas case that a petitioner would be constitutionally entitled to a new trial if
he proved that he was incarcerated on the basis of perjured testimony where the testimony was
(1) material to the outcome and (2) credibly recanted after trial where the petitioner was not
aware of its falsity until after trial. Sanders was, of course, not cited on appeal, so the First
District had no occasion to consider the constitutional argument it makes.
Moreover, Sanders does not support relief here for two reasons. First, this is not a case
where a critical trial witness has credibly recanted his testimony. Short has not recanted his trial
testimony at all. Instead, now protected by the Double Jeopardy Clause, he is willing to testify
whereas at trial he claimed the protection of the Fifth Amendment. As the Ohio court held,
Short’s evidence is no surprise to McGlothin: McGlothin’s attorney called Short to the stand,
hoping for exactly this testimony at trial. State v. McGlothin, 2007-Ohio-4707, 2007 Ohio App.
4
LEXIS 4227, ¶ 42 (1st Dist. Sept. 14, 2007).1
Secondly, Sanders is no longer good law; it has been superseded by the Anti-terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) which provides that habeas relief can only
be granted on the basis of law clearly established by holdings of the United States Supreme
Court. The Second Circuit itself has recognized that Sanders was abrogated by the AEDPA.
Drake v. Portuondo, 321 F.3d 338, 345 n.2 (2nd Cir. 2003).
McGlothin notes that he mentioned the Due Process Clause when he appealed from the
First District to the Ohio Supreme Court (Objections, Doc. No. 21, PageID 2351.)
Even
assuming that glancing reference would have been sufficient for fair presentation,2 it was made
too late. A habeas petitioner must present his federal constitutional claims at every stage of the
state court process. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).
McGlothin makes a separate constitutional argument that “when a state adopts a
procedure it creates a ‘substantial and legitimate expectation protected by the due process
clause.’” (Objections, Doc. No. 21, PageID 2352, citing Hicks v. Oklahoma, 447 U.S. 343, 346
(1980), and Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989). Neither case
stands for the proposition for which it is cited. In Hicks a sentence of forty years was imposed
on a petitioner under a habitual offender statute later found unconstitutional. The Supreme Court
held that the limitation of possible sentences by the later declaration of unconstitutionality
created a substantive liberty interest.
1
It is the First District’s opinion which is considered throughout this Supplemental Report because it is the last
reasoned state court decision in the case. Ylst v. Nunnemaker, 501 U.S. 797 (1991).
2
Of course, it is not sufficient. See Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Franklin v. Rose, 811
F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe,
735 F.2d 684, 688-89 (2nd Cir. 1984). Mere use of the words “due process and a fair trial by an impartial jury” are
insufficient. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir.
2004)(same).
5
Where, however, a State has provided for the imposition of
criminal punishment in the discretion of the trial jury, it is not
correct to say that the defendant's interest in the exercise of that
discretion is merely a matter of state procedural law. The
defendant in such a case has a substantial and legitimate
expectation that he will be deprived of his liberty only to the extent
determined by the jury in the exercise of its statutory discretion, cf.
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, and that liberty
interest is one that the Fourteenth Amendment preserves against
arbitrary deprivation by the State. See Vitek v. Jones, 445 U.S. 480,
488-489, citing Wolff v. McDonnell, 418 U.S. 539;Greenholtz v.
Nebraska Penal Inmates, supra;Morrissey v. Brewer, 408 U.S.
471.In this case Oklahoma denied the petitioner the jury sentence
to which he was entitled under state law, simply on the frail
conjecture that a jury might have imposed a sentence equally as
harsh as that mandated by the invalid habitual offender provision.
Such an arbitrary disregard of the petitioner's right to liberty is a
denial of due process of law.
Hicks, supra, at 346. In other words, a State can create a substantive liberty (or property) interest
which is then protected by the Due Process Clause from arbitrary deprivation. That is far
different from constitutionalizing every state procedure. Failure to abide by state law is not itself
a constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985). Violation by a
State of its own procedural rules does not necessarily constitute a violation of due process. Bates
v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228
(6th Cir. 1976). “A state cannot be said to have a federal due process obligation to follow all of
its procedures; such a system would result on the constitutionalizing of every state rule, and
would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993).
Lastly, McGlothin asserts any procedural default should be excused because he is
actually innocent (Objections, Doc. No. 21, PageID 2352). This claim is unpersuasive for the
reasons given, in the Report and below, with respect to Ground Six.
In sum, it is again respectfully recommended that the First Ground for Relief be
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dismissed with prejudice as procedurally defaulted or, alternatively, on the merits because there
is no federal constitutional right, clearly established by Supreme Court precedent, for a new trial
in the circumstances McGlothin presents.
Ground Two: Amendment of the Indictment
In his Second Ground for Relief, McGlothin contends he was denied fair notice of the
charges against him when the trial court permitted amendments of the Indictment before trial and
again after closing argument (Memorandum in Support, Doc. No. 1-1, PageID 28). The state
court rejected this claim, raised as the First Assignment of Error, because McGlothin had failed
to avail himself of the remedies provided by Ohio law, discharge of the jury or a continuance,
and in any event was not prejudiced. State v. McGlothin, supra, ¶¶ 7-9. The Report found this
claim procedurally defaulted (Report, Doc. No. 20, PageID 2332-34.)
McGlothin asserts that he did object to the first amendment to the indictment, quoting the
record as follows:
The Court:
Defense wish to be heard with regard to plaintiff’s motion to amend?
Ms. Cross:
Just note our objection for the record.
The Court:
Okay. Do you want to state any further the basis for the objection?
Ms. Cross:
No, Your Honor.
(Objections, Doc. No. 21, PageID 2353, quoting Transcript, Doc. No. 18-1, PageID 1169.)
The Report concluded, in error, that the First District had enforced Ohio’s
contemporaneous objection rule against McGlothin. What it in fact enforced was Ohio’s rule
that, in the face of such an amendment, a defendant is entitled to a discharge of the jury and a
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continuance. Those remedies are embodied in Ohio R. Crim. P. 7(D). They are an adequate and
independent basis for the First District’s opinion as it would be an utter waste of public resources
to allow a trial to go forward and then permit a defendant to upset the verdict when he could
have obtained a continuance and, if needed, a new jury. McGlothin should be held to have
procedurally defaulted this claim because he failed to use the remedies provided by Ohio law and
the failure was held against him by the First District.
Alternatively, McGlothin argues that he did present this claim as a federal constitutional
claim to both the First District and the Ohio Supreme Court. In contrast to the First Claim for
Relief, McGlothin did in fact present this claim, at least in part, as a federal constitutional claim.
In his Brief on appeal, he argued
The Sixth Amendment to the United States Constitution provides
that a defendant be given "fair notice” of the charges against him.
United States v. Combs, 369 F. 3d 925,935 (5th C. 2004). "As this
court has explained, 'fundamental decency and civilized conduct
require that an accused be permitted to defend himself fairly
against crimes charged to him, and to do so, it is necessary that he
be fully and fairly informed of the nature and cause of the
accusations against him. The fundament of such information is
provided by the indictment.’ Consequently, to subject someone to
'criminal prosecution without being notified of the charge against
him is foreign to American jurisprudence.'"
(Appellant’s Brief, Doc. No. 17-1, PageID 695, quoting State v. Moore, 145 Ohio App. 3d 213,
216 (1st Dist. 2001).) This argument does present a federal constitutional claim and the Second
Ground for Relief is not procedurally defaulted on a lack of fair presentation basis..
The First District did decide the constitutional part of this claim against McGlothin when
it held “McGlothin would not have been able to prove that he was misled or prejudiced by the
amendments.” State v. McGlothin, supra, ¶ 9.
When a state court decides on the merits a federal constitutional claim later presented to a
8
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
McGlothin has not demonstrated any way in which the state appellate court’s decision is
an objectively unreasonable application of the relevant United States Supreme Court law. He
merely asserts that changing his status from principal to complicitor in the indictment and the
underlying felony from felonious assault to aggravated robbery, another crime charged in the
indictment “runs afoul of Due Process.” And McGlothin offers no excuse for his procedural
default in failing to ask for a continuance.
The Second Ground for Relief should be dismissed with prejudice.
Ground Three: Prosecutorial Misconduct
In his Third Ground for Relief, McGlothin asserts he was deprived of due process of law
by the misconduct of the prosecutor. Two claims of misconduct are made: intimidation of a
defense witness (co-defendant Short) and improper comments in closing argument. The Report
concluded this claim should be dismissed on the merits because the First District’s decision was
not an objectively unreasonable application of Supreme Court precedent.
As to the first instance of asserted misconduct, the First District decided:
[*P18] McGlothin called Short to testify on his behalf. Before
taking the stand in front of the jury, Short asserted his right not to
incriminate himself and refused to testify. McGlothin claimed that
Short was refusing to testify because he had been intimidated by
9
the assistant prosecutor. Prior to calling Short, McGlothin's
attorneys informed the court that the assistant prosecutor had told
Short's counsel that if Short testified, he would receive no
consideration in the pending case against him. The trial court
questioned Short's counsel to understand what had happened.
Short's counsel stated that his understanding was that "[the
assistant prosecutor] was certainly not going to recommend any
deal if [Short] testified, not that he couldn't testify." He also told
the court that the assistant prosecutor had not advised him that
Short should refuse to testify. It is clear from the record that the
assistant prosecutor was referring to case consideration that had
been offered to Short had he testified on behalf of the state. But
because the assistant prosecutor did not believe Short to be
credible, he had decided not to call Short as a witness. The
assistant prosecutor's statements to Short's counsel made clear that
any previously offered consideration was off the table. And Short's
counsel stated that, aside from the conversation that he had had
with the assistant prosecutor, he did not believe that it was in
Short's best interest to testify. We conclude that the record does not
support McGlothin's assertion that Short had been intimidated
from testifying by the assistant prosecutor.
State v. McGlothin, supra, ¶ 18. The Report accepted the First District’s conclusion about what
the record showed on this claim (Report, Doc. No. 20, PageID 2337-38). McGlothin’s sole
response in the Objections is “[t]his conclusion is not supported by the record.” (Objections,
Doc. No. 21, PageID 2356.) However, McGlothin provides no record references to refute the
First District’s conclusion.
Factual findings made by state courts are entitled to a high measure of deference from
federal courts. Rushen v. Spain, 464 U.S. 114, 120 (1983); Marshall v. Lonberger, 459 U.S. 422
(1983); Sumner v. Mata, 455 U.S. 591 (1982). That is, they are to be reviewed under the clearly
erroneous standard, Weston v. Kernan, 50 F.3d 633 (9th Cir. 1993). Such findings include the
contents of the state court record, explicit factual findings of the state court, and inferences fairly
deducible from these facts; they are not to be set aside unless they lack even "fair support" in the
record. Marshall, supra. To overcome a state court finding of fact after AEDPA, a petitioner
10
must show that it is an unreasonable determination of the facts in light of the evidence presented.
28 U.S.C. § 2254(d)(2). McGlothin has pointed to no evidence of record which undermines the
First District’s determination.
Furthermore, McGlothin points to no Supreme Court precedent which holds that a
prosecutor may not condition a plea bargain on the willingness of a witness to testify on behalf
of the State in the prosecution of a co-defendant. That is what the court of appeals found
happened here and such conditions are ubiquitous in plea agreements.
McGlothin makes no objection to the Report’s conclusion that the First District’s
conclusion on the second prong of Ground Three was not objectively unreasonable.
The Third Ground for Relief should be dismissed with prejudice.
Ground Four: Void Indictment
In his Fourth Ground for Relief, McGlothin asserts his conviction is unconstitutional
because he was tried on a structurally deficient and void indictment which did not allege the
requisite mens rea for aggravated robbery and robbery or any mens rea for the underlying felony
for the murder charge.
Although the Warden asserted this claim was procedurally defaulted, the Report
recommended rejecting it on the merits because the Fifth Amendment guarantee of grand jury
indictment has never been incorporated into the Fourteenth Amendment (Report, Doc. No. 20,
PageID 2338-39).
McGlothin objects that omission of an essential element of the crime deprived him of fair
notice of the charges against him, which is required by the Fourteenth Amendment Due Process
11
Clause. See Russell v. United States, 369 U.S. 749 (1962).
The entire argument on this claim in the Memorandum in Support of the Petition3 reads
as follows:
The omission of an essential element of the offense sought to be
charged is fundamental error, and could be first raised by the
defendant at any time, even on appeal, and the failure to raise it in
the trial court was not a waiver of the defect in the indictment.
State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d
917.
(Doc. No. 1-1, PageID 33.) Thus McGlothin relies entirely on State v. Colon, supra., for the
proposition that mens rea is an essential element of the crimes of murder, aggravated robbery,
and robbery. McGlothin fails to acknowledge that the Ohio Supreme Court has repudiated
Colon and held:
[W]hen an indictment fails to charge a mens rea element of the
crime but tracks the language of the criminal statute describing the
offense, the indictment provides the defendant with adequate
notice of the charges against him and is, therefore, not defective. ...
Colon I is overruled, and Colon II is overruled to the extent that it
holds such an indictment is defective. Further, we hold that failure
to timely object to a defect in an indictment constitutes waiver of
the error. Crim. R. 12(C)(2)(objections to defect in indictment
must be raised before trial).
State v. Horner, 126 Ohio St. 3d 466, 473, 2010-Ohio-3830 (2010).4 Thus the Ohio Supreme
Court has held as a matter of Ohio law that mens rea is not an element required to be pleaded and
also that an indictment in the language of the statute, as the indictment was in this case, is
adequate notice.
The Warden is correct that this claim was never raised in the state courts and particularly
3
McGlothin never filed a reply to the Answer either to bolster this claim or to respond to the Warden’s procedural
default argument.
4
Failure to cite a decision overruling the authority on which one relies is at least a colorable violation of Ohio R.
Prof. Cond. 3.3.
12
was not raised in the way Horner requires it to be raised. The claim is therefore procedurally
defaulted. It should be dismissed with prejudice on that basis as well.
Ground Five: Double Jeopardy
As noted above, McGlothin has not objected to dismissal of this Ground for Relief.
Ground Six: Actual Innocence
In his Sixth Ground for Relief, McGlothin contends he is actually innocent of the crimes
of which he stands convicted and for which he is imprisoned. He relies on his asserted actual
innocence both as a stand-alone claim and to excuse any procedural default of other claims.
The Report notes that McGlothin’s proffered evidence of his asserted actual innocence is
the Affidavit of co-defendant Kevin Short which was presented to the Ohio courts in support of
the motion for new trial. The contents of the Short Affidavit are included verbatim in the Report
(Doc. No. 20, PageID 2342).
The Report concluded that any stand-alone constitutional claim based on actual
innocence was procedurally defaulted because it was not fairly presented to the First District as a
constitutional claim, but rather as a claim of new evidence entitling McGlothin to a new trial
under Ohio R. Crim. P. 33. McGlothin makes no objection to this analysis (see Objections, Doc.
No. 21, PageID 2358).
McGlothin also makes no objection to the conclusion in the Report that the United States
Supreme Court has never recognized a stand-alone claim of actual innocence. See Id.
13
The Report also offers three pages of analysis as to why the Short Affidavit does not
satisfy the “gateway” actual innocence standard of Schlup v. Delo, 513 U.S. 298 (1995).
McGlothin’s Objection is pure ipse dixit – it meets the Schlup standard because I assert it does
(Objection, Doc. No. 21, PageID 2358).
Certificate of Appealability
The Report concludes “[b]ecause reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous.” McGlothin’s Objection Six
disagrees with this conclusion, but cites no case precedent in which any jurist, reasonable or not,
disagrees with the conclusions reached.
Conclusion
Having reviewed the Report and Objections pursuant to the Recommittal Order, the
Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice,
that McGlothin be denied a certificate of appealability, and that the Court certify to the Sixth
Circuit that any appeal would be objectively frivolous.
November 6, 2013.
s/ Michael R. Merz
United States Magistrate Judge
14
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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