Shalash v. Warden, Noble Correctional Institution

Filing 18

REPORT AND RECOMMENDATION that respondent's 10 MOTION to Dismiss be Granted, and petitioner's 1 Petition for Writ of Habeas Corpus be Dismissed with prejudice. A certificate of appealability should not issue in this matter. Any appea l would not be taken in good faith, and therefore Deny petitioner leave to proceed in forma pauperis on appeal. Objections to R&R due by 1/18/2017. Signed by Magistrate Judge Karen L. Litkovitz on 1/4/2017. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HAITHAM SHALASH,
Petitioner,

vs.

WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 1: l 6-cv-451

Black, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Noble Correctional Institution in Caldwell,
Ohio, has filed a prose petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging the judgment of conviction and sentence entered by the Warren County, Ohio, Court
of Common Pleas in Case No. 12CR28291. (See Doc. 1, at PAGEID#: 1).
On August 17, 2016, respondent filed a motion to dismiss the petition with prejudice.
1

(Doc. 10). On December 1, 2016, this Court issued an Order staying ruling on the motion to
dismiss pending the Ohio Supreme Court's disposition of a certified question in an appeal
involving petitioner's co-defendant, which "is critical for determining whether respondent's
motion to dismiss should be granted or denied." (Doc. 16, p. 2, at PAGEID#: 294). On
December 27, 2016, the respondent filed a notice informing the Court of the Ohio Supreme
Court's disposition of the certified question in a decision that issued the same date. (Doc. 17). It,
1

Respondent also separately filed 30 exhibits obtained from the underlying state-court record as support for
the motion to dismiss. (See Doc. 9). Thereafter, petitioner filed a brief opposing the motion to dismiss, and
respondent filed a brief in reply to petitioner's opposition memorandum. (Docs. 13, 15).

therefore, appears that the order staying the case is no longer in effect, and the matter is now ripe
for disposition.

I. PROCEDURAL HISTORY

State Trial Proceedings
In May 2012, the Warren County, Ohio, grand jury returned an indictment in Case No.
12CR28291 charging petitioner with six counts of aggravated trafficking of "a controlled
substance, to wit: controlled substance analog" in violation of Ohio Rev. Code§ 2925.03{A)
(Counts 1-6) and one count of engaging in a pattern of corrupt activity in violation of Ohio Rev.
Code § 2923.32{A){l) (Count 7); a major drug offender specification was attached to the
aggravated trafficking charge set forth in Count 4. (See Doc. 9, Ex. 1). It appears from the record
that the charges "arose out of allegations that on January 18, 2012, and February 13, 2012,
[petitioner] and a co-defendant, Ha[mz]a Shalash, sold ' designer' or 'synthetic' drugs that were
substantially similar to controlled substances out of a local gas station." (Id., Ex. 19, if2, at
PAGEID#: 154).

2

Hamza Shalash, petitioner' s brother, is not a party in this action. He was separately
indicted and tried in Warren County Case No. 12CR28290 and was sentenced to an aggregate 11year prison term upon his conviction following a jury trial of eight counts of aggravated
trafficking in a controlled substance analog, as well as one count of engaging in a pattern of
2

The Ohio Court of Appeals, Twelfth Appellate District, provided the summary of the facts giving rise to
the criminal charges in a decision issued October 13, 2015 affirming the trial court's denial of petitioner's postsentence motion to withdraw his guilty plea. (See Doc. 9, Ex. 19). The state appellate court's summary is presumed
correct in the absence of any evidence to the contrary. See 28 U.S.C. § 2254(e)(I) (" [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 made by a State court shall be presumed correct" unless the petitioner rebuts the
presumption by "clear and convincing evidence"); see also McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).

2

corrupt activity. See State v. Hamza Shalash, 41 N .E.3d 1263, 1265 (Ohio Ct. App. 2015). On
direct appeal, the Ohio Court of Appeals reversed Hamza's conviction and remanded the matter
for further proceedings after finding that the trial court had erred in denying a defense motion to
exclude the State expert witness ' s testimony without holding a Daubert hearing. Id. On remand,
the trial court held a Daubert hearing, in which it was determined that the State expert's testimony
was admissible. Id. Hamza then filed a motion, which was denied, requesting that the indictment
be dismissed "on the ground that the sale of controlled substance analogs was not criminalized at
the time he sold them." See id. at 1265-66. Thereafter, Hamza entered a no-contest plea to the
charges and was again sentenced to an 11-year prison term. He pursued an appeal to the Ohio
Court of Appeals, Twelfth Appellate District, on the claim raised in his motion to dismiss and
another assignment of error. The state appellate court overruled the assignments of error and
affirmed Hamza's conviction and sentence. See id. at 1269, 1275. Hamza next pursued an appeal
to the Ohio Supreme Court, which accepted the appeal for the purpose of deciding a conflict
between the Twelfth and Tenth Appellate Districts on the issue whether controlled substance
analogs were criminalized by the Ohio legislature in House Bill 64, which became effective on
October 17, 2011. See State v. Hamza Shalash , No. 2015-1782 (Ohio). On December27, 2016,
the Ohio Supreme Court affirmed the Ohio Court of Appeals' judgment and Hamza' s conviction
and sentence after determining in accordance with the Twelfth Appellate District' s decision that
'"controlled substance analogs' were criminalized as of October 17, 2011, the effective date of
House Bill 64." (See Doc. 17, attached Ohio Supreme Court Slip Opinion No. 2016-0hio 8358).
In petitioner's case (No. 12CR28291), petitioner's counsel filed a motion to dismiss the
indictment on the ground that the statutory provision set forth in Ohio Rev. Code § 3 719.01 (HH),
3

"which makes it illegal to possess any substance that is ' substantially similar' to a controlled
substance," is "unreasonably vague in that it fails to portray to a reasonable person the types of
substances in which it intends to ban." (Doc. 9, Ex. 3, at PAGEID#: 50). The trial court denied
the motion on February 25, 2013. (Id., Ex. 5).
Over five months later, on August 12, 2013, petitioner entered a guilty plea to three of the
aggravated trafficking counts (Counts 1-3) and the charge of engaging in a pattern of corrupt
activity (Count 7) in exchange for the dismissal of the remaining counts (Counts 4-6), the
specification attached to Count 4, and an agreed-to prison sentence of five (5) years. (See id.,
Exs. 6-7). On the same date, the trial court issued the final judgment entry sentencing petitioner
in accordance with the plea agreement to a five-year prison term, which consisted of the following
concurrent terms of imprisonment: one ( 1) year each for the three aggravated trafficking offenses
charged in Counts 1-3 and five (5) years for the offense charged in Count 7, "of which Qy
agreement of the parties four (4) years is a mandatory term pursuant to R.C. §2929.B(F)." (Id.,
Ex. 7) (emphasis in original).
Motion to Withdraw Guilty Plea
Petitioner took no action to challenge his conviction or sentence until January 14, 2015,
nearly a year and a half after the issuance of the final judgment entry, when he filed a prose
motion to withdraw his guilty plea with the trial court. (Doc. 9, Ex. 8). In the motion filed
pursuant to Ohio R. Crim. P. 32.1 , petitioner contended that at the time the charged offenses were
committed in January and February 2012, Ohio Rev. Code § 2925.03 did not " expressly prohibit
the sale or possession of controlled substance analogs" because "the definition of ' controlled
substance analog' created in House Bill 64 and codified as R.C. 3719.0l(HH)" had not yet been
4

expressly incorporated by amendment into Ohio Rev. Code Chapter 2925. (See id., at PAGEID#:
75-77). Petitioner argued that because he was convicted for acts that were not defined as
"criminal offenses" when they were committed, he should be permitted to withdraw his guilty
plea to correct a manifest injustice; his conviction should be reversed on the ground that it
violates the Ex Post Facto Clause of the United States and Ohio Constitutions; and his guilty plea
should be deemed invalid on the ground that it was not knowingly and voluntarily entered as it
was induced by his counsel's "incorrect legal advice" amounting to ineffective assistance. (Id. , at
PAGEID#: 80). On January 16, 2015, the trial court denied petitioner's motion. (Id. , Ex. 9). 3
On June 29, 2015, petitioner filed a prose notice of appeal and motion for leave to file a
delayed appeal to the Ohio Court of Appeals, Twelfth Appellate District, from the trial court's
January 16, 2015 entry. (Id. , Exs. 12-13). The Ohio Court of Appeals permitted the delayed
appeal. (See id., Ex. 15). In his merit brief, petitioner asserted the following claims as
assignments of error:
1.

Appellant's conviction and sentence is in violation of the ex post facto clause.

2. Appellant[] was denied the effective assistance of counsel guaranteed by the
Ohio and United States Constitutions.
3. The trial court abused its discretion when it denied Appellant's January 14,
2015 Motion to Withdraw his guilty plea.

(Id., Ex. 16, at PAGEID#: 116, 117, 119).
On October 13, 2015, the Ohio Court of Appeals overruled the assignments of error and
3

It appears from the record that petitioner was not served with the trial court's entry denying his motion to
withdraw his guilty plea. (See Doc. 9, Exs. 13, 15). On April 22, 2015 , he filed a motion with the trial court
requesting a hearing on the motion to withdraw guilty plea. (Id., Ex. 10). In an entry filed April 29, 2015, the trial
court denied the motion for hearing, noting that petitioner's motion to withdraw his guilty plea had already previously
been denied. (Id., Ex. 11).

5

affirmed the trial court's judgment. (Id. , Ex. 19). The court reasoned in relevant part as follows:
Here, appellant contends the trial court erred when it denied his motion to
withdraw his guilty plea as the sale of controlled substance analogs was not
criminalized until December of 2012, almost a year after he was alleged to have
sold the substances. In support of his argument, appellant relies on State v. Smith ,
10th Dist. Franklin Nos. 14AP-154 and 14AP-155, 2014-0hio-5303. In Smith , the
state appealed the dismissal of multiple indictments charging the defendant with
trafficking and possessing controlled substance analogs between February 2012
and July 2012, in violation of R.C. 2925.01. Id. at ii 2. After examining 2011
Am.Sub.H.B. No. 64 (House Bill 64), the law that was in effect at the time the
defendant was alleged to have possessed and trafficked in controlled substance
analogs, the Tenth District concluded that the law did not state a positive
prohibition or provide a penalty for violating such prohibition on the possession or
sale of controlled substance analogs. Id. at ii 16. The Tenth District found no error
in the trial court's decision to dismiss the indictment, holding that " the acts (the
defendant] is alleged to have committed were not clearly defined as criminal
offenses under the law as it existed at the time." Id.
This court recently examined the holding of the Smith court in State v. Shalash,
12th Dist. Warren No. CA2014-12-146, 2015-0hio-3836. In Shalash, appellant's
co-defendant, Ha[mz]a, made the same ex post facto argument appellant presents
today. After analyzing House Bill 64, we rejected Ha[mz]a's argument and the
holding of the Smith court. Shalash at ii 20-28. We concluded that " (t]he plain
and clear language of R.C. 3719.013 incorporated controlled substance analogs
into every other chapter of the Revised Code, including R.C. Chapter 2925.
Therefore, the sale or possession of controlled substance analogs was criminalized
as of October 17, 2011 , the date House Bill 64 became effective." Id. at ii 24.
Ha[mz]a's convictions for aggravated trafficking in controlled substance analogs
between January and February 2012 were, therefore, upheld. Id. at ii I.
For the reasons set forth in Shalash , we find appellant's argument that his
conviction and sentence violates the ex post facto clauses of the United States and
Ohio Constitutions to be without merit. The sale or possession of controlled
substance analogs was criminalized by House Bill 64, which was in effect well
before appellant trafficked in the substances in January and February 2012.
We also find appellant's argument that his trial counsel provided ineffective
assistance to be without merit. Essentially, appellant argues that his counsel was
deficient for not discovering or arguing that the sale of controlled substance
analogs was legal in January and February 2012. Appellant contends that had this
argument been set forth in his motion to dismiss, the motion would have been
granted, the indictment dismissed, and he never would have entered a guilty plea to
6

the charges.
Appellant's claim of ineffective assistance fails as he cannot establish that " but for
counsel ' s unprofessional errors, the result of the proceeding would have been
different." Strickland [v. Washington, 466 U.S. 668, 694 (1984)]. ... Even if we
were to assume trial counsel's performance was deficient for failing to advise
appellant about appellant's ability to challenge the indictment on the basis that
House Bill 64 did not criminalize the sale of controlled substance analogs,
appellant cannot demonstrate any prejudice. As discussed above, this court has
determined that the sale or possession of controlled substance analogs was
criminalized by House Bill 64. Appellant, therefore, could not have prevailed on a
motion to dismiss as trafficking in controlled substance analogs was a crime as of
October l 7, 2011.
Accordingly, for the reasons set forth above, we conclude that the trial court did
not err in denying appellant's motion to withdraw his guilty plea. Appellant failed
to demonstrate his trial counsel was ineffective or that there was some fundamental
flaw in the underlying proceedings that resulted in a manifest injustice.
(Id. , pp. 4-7, at PAGEID#: 156-59) (footnote and state case citation omitted). 4

Petitioner filed a motion for reconsideration, which was denied. (See id., Exs. 20, 22).
Petitioner next pursued a timely appeal to the Ohio Supreme Court based on the same claims that
he had presented to the Ohio Court of Appeals. (See id., Exs. 23, 25). On January 20, 2016, the
Ohio Supreme Court declined to accept jurisdiction of the appeal. (Id. , Ex. 28). Petitioner filed a
motion for reconsideration, which was summarily denied by the Ohio Supreme Court on March
23, 2016. (Id., Exs. 29-30).

Federal Habeas Corpus Petition
The instant federal habeas action commenced on April 4, 2016. (See Doc. 1). However,

4

It is noted that in holding that "the sale or possession of controlled substance analogs was criminalized as
of October 17, 20 11 , the date House Bill 64 became effective," the Ohio Court of Appeals also pointed out in a
footnote that " House Bill 64 added R.C. 3719.013, which provided that ' [a] controlled substance analog, to the extent
intended for human consumption, shall be treated for purposes of any provision of the Revised Code as a controlled
substance in schedule I.' (Emphasis added.)" (Doc. 9, Ex. 19, p. 5 n.2, at PAGEID#: 157).

7

because petitioner is a pro se litigant, it is presumed for statute-of-limitations purposes that the
filing date of the petition is March 25, 2016, which is the date that petitioner has averred he
placed the pleading in the prison mailing system for delivery to the Court. (See id., at PAGEID#:
25). 5 In the petition, petitioner presents the following grounds for relief:

Ground One: Petitioner's conviction is in violation of the ex post facto clause.
Supporting Facts: At the time Petitioner committed his offenses of trafficking in
controlled substance analog, Title 29 did not prohibit selling or offering to sell a
controlled substance analog and Title 29 did not state the definition of controlled
substance analog. Petitioner' s conviction is illegal.
Ground Two: Ineffective Assistance of counsel.
Supporting Facts: Counsel has a duty to stay current on all applicable laws in a
client's case, to investigate those laws and statutes. Counsel failed to investigate,
to stay current on the applicable laws and statutes and advise Petitioner to enter a
no contest plea to criminal offense[s] that were not criminalized at the time
Petitioner was alleged to have committed them, thus the result is a no contest plea
entered upon incorrect legal advice and involuntary.
(Id., at P AGEID#: 5, 17).

Respondent has filed a motion to dismiss the petition. (Doc. 10). Respondent contends
that the petition should be dismissed with prejudice because petitioner has not alleged a
cognizable ground for federal habeas relief. (See id.). Petitioner has filed a brief opposing the
motion to dismiss. (Doc. 13). Respondent has filed a brief in reply to petitioner's opposition
memorandum and has also updated the record by filing the Ohio Supreme Court' s recent decision
5

It is well-settled that the filing date of a federal habeas corpus petition submitted by a pro se prisoner is the
date on which the prisoner provides his papers to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266
(1988); see also Miller v. Collins, 305 F.3d 491 , 497-98 (6th Cir. 2002); Goins v. Saunders, 206 F. App'x 497, 499
n. l (6th Cir. 2006). In this case, it appears that petitioner's grounds for relief, which involve errors that allegedly
occurred before petitioner's conviction became final in September 2013, may be time-barred under the applicable
one-year statute of limitations set forth in 28 U.S.C. § 2244(d). However, because respondent has not asserted that
defense as a ground for dismissal of the petition, the undersigned will not address the limitations issue and will
assume, without deciding, that the petition is not time-barred.

8

on the certified question resolved in the appeal brought on behalf of petitioner's co-defendant,
Hamza Shalash. (See Docs. 15, 17).

II. RESPONDENT'S MOTION TO DISMISS (DOC. 10) SHOULD BE GRANTED IN
LIGHT OF THE OHIO SUPREME COURT'S RECENT DISPOSITION OF A STATELAW ISSUE THAT GOVERNS THE RESOLUTION OF PETITIONER'S
CONSTITUTIONAL CLAIMS
In the petition, petitioner has asserted cognizable federal constitutional claims to the extent
that he alleges in Ground One that his conviction violates the Constitution's Ex Post Facto Clause
and claims in Ground Two that he did not enter a knowing or voluntary guilty plea and was
instead induced to plead guilty by his trial counsel, who provided ineffective assistance in
advising him to do so. However, both of those constitutional claims are based on petitioner' s
contention that he was convicted and sentenced for offenses involving the trafficking of
"controlled substance analogs" that were not criminalized by the Ohio legislature until December
2012, nearly a year after the charged offenses were committed. That underlying contention
involves an issue of state-law, which the Ohio Supreme Court recently resolved in the State's
favor when deciding the conflict between the Twelfth and Tenth Appellate Districts on the issue
whether controlled substance analogs were criminalized by the Ohio General Assembly as early
as October I 7, 201 I, the effective date of House Bill 64. (See Doc. 17, attached Ohio Supreme
Court Slip Opinion No. 2016-0hio 8358). In affirming the conviction of petitioner's codefendant for the same offenses committed in January and February 2012, the Ohio Supreme
Court sided with the Twelfth Appellate District's decision that '"controlled substance analogs '
were criminalized as of October 17, 2011, the effective date of House Bill 64." (Id) .
In this federal habeas proceeding, the Court has jurisdiction to review petitioner's claims
9

only to the extent that petitioner challenges his confinement based on an alleged violation of the
Constitution, laws or treaties of the United States, and not "on the basis of a perceived error of
state law." 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Wilson v.

Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) ("it is
not the province of a federal court to reexamine state-court determinations on state-law
questions"). " [B]ecause the state courts are final authority on state-law issues, the federal habeas
court must defer to and is bound by the state court' s rulings on such matters." Bennett v. Warden,

Lebanon Corr. Inst. , 782 F. Supp.2d 466, 478 (S.D. Ohio 2011) (and cases cited therein); see also
Warner v. Zent, 997 F.2d 116, 133 (6th Cir. 1993) (quoting Mullaney v. Wilbur, 421 U.S. 684,
690-91 (1975)) (absent a showing of "extreme circumstances where it appears that the [state
court' s] interpretation of[ state law] is an obvious subterfuge to evade consideration of a federal
issue," the federal habeas court is bound by the state court' s determination of state law"); Meyers

v. Ohio, No. 1:14cv1505, 2016 WL 922633, at *7 (N.D. Ohio Jan. 21, 2016) (Report &
Recommendation) (citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988)) (" federal habeas
courts are bound by decisions of intermediate state courts on questions of state law unless
convinced that the state's highest court would decide the issue differently"), adopted, 2016 WL
916602 (N.D. Ohio Mar. 9, 2016). Cf Jones v. Woods, 635 F. App' x 254, 257 (6th Cir. 2015)
(citing Davis v. Straub, 430 F.3d 281 , 291 (6th Cir. 2005)) (in affirming the district court's denial
of a habeas petition based on a claim that the petitioner' s trial counsel was ineffective for failing
to request a self-defense jury instruction, the Sixth Circuit emphasized that"[w]e are bound by
the [state] Court of Appeals' determination that [the petitioner] was not entitled to the instruction
under state law").
10

Here, although the Twelfth Appellate District and Tenth Appellate District disagreed
about the proper resolution of the underlying state-law question, the Ohio Supreme Court has
made it clear that the Twelfth Appellate District was correct in concluding that trafficking in
controlled substance analogs was a criminal offense under Ohio Rev. Code Chapter 2925 when
petitioner and his brother committed that offense in January and February 2012. Because, as a
matter of Ohio law, trafficking in controlled substance analogs was a criminal offense when the
charged offenses occurred in 2012, petitioner' s claim of an ex post facto violation lacks merit.
For the same reason, petitioner is unable to demonstrate that his trial attorney was
ineffective for advising him to enter a guilty plea instead of seeking dismissal of the
criminal charges on the ground that trafficking in controlled substance analogs was legal
when the charged offenses occurred. As the Ohio Court of Appeals recognized in
rejecting petitioner' s claim of ineffective assistance, to prevail on such a claim, petitioner
must show both (1) his trial attorney' s challenged conduct was constitutionally deficient
and (2) such conduct prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 ( 1984). Under the first prong of the Strickland test, petitioner must demonstrate that
his counsel ' s representation fell below an objective standard of reasonableness based on
all the circumstances surrounding the case. Id. at 688. To satisfy the second "prejudice"
prong of the Strickland test, petitioner must show that a "reasonable probability" exists
that, but for his counsel ' s alleged error, he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985) (applying Strickland to
guilty-plea context).

Here, given the Twelfth Appellate District' s and Ohio Supreme

Court' s disposition of the underlying state-law issue, petitioner is unable to meet his
11

burden of showing that his counsel acted unreasonably or prejudicially in advising him to
enter a guilty plea in exchange for the dismissal of some of the charges and an agreed-to
5-year prison sentence. As the Ohio Court of Appeals reasonably concluded, counsel was
not ineffective because he would not have prevailed on the argument that petitioner claims
should have been asserted in a motion to dismiss.
Accordingly, in sum, the undersigned concludes that respondent' s motion to
dismiss (Doc. 10) should be granted because petitioner' s federal constitutional claims lack
merit in light of the Ohio Supreme Court's disposition of the state-law issue on which
those claims are based.

IT IS THEREFORE RECOMMENDED THAT:
1. Respondent's motion to dismiss (Doc. 10) be GRANTED, and petitioner's petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DISMISSED with prejudice.
2. A certificate of appealability should not issue because petitioner has not stated a
"viable claim of the denial of a constitutional right" or presented issues that are "adequate to
deserve encouragement to proceed further. " See Slackv. McDaniel, 529 U.S. 473, 475 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b ).
3. With respect to any application by petitioner to proceed on appeal informa pauperis,
the Court should certify pursuant to 28 U.S.C. § l 915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in "good faith," and therefore DENY
petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.
12

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date:

I

•

I ifI AJ)/9=

l

I

~o~~

United States Magistrate Judge

13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1: l 6-cv-451

HAITHAM SHALASH,
Petitioner,

Black, J.
Litkovitz, M.J.

vs.
WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S . 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
cbc

14