Baer v. Warden, Grafton Correctional Institution

Filing 21

REPORT AND RECOMMENDATIONS - re 1 - Based on the foregoing analysis, the Petitioner herein should be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied acertificate of appealab ility and this Court should certify to the Sixth Circuit that an appeal would not be taken in objective good faith and should therefore not be permitted to proceed in forma pauperis. Objections to R&R due by 2/14/2013. Signed by Magistrate Judge Michael R Merz on 1/28/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
WILLIAM H. BAER,
:
Petitioner,

Case No. 2:10-cv-1164
:

District Judge George C. Smith
Magistrate Judge Michael R. Merz

-vsKIMBERLY CLIPPER, Warden,
Grafton Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS
Petitioner William H. Baer brought this habeas corpus action under 28 U.S.C. § 2254 to
obtain relief from his conviction in the Harrison County Common Pleas Court on two counts
each of rape, sexual battery, and gross sexual imposition for which he is serving two life
sentences in Respondent’s custody (Petition, Doc. No. 1, ¶¶ 3 & 5, PageID 1). Petitioner pleads
the following Grounds for Relief:
Ground One: Speedy Trial Violation as guaranteed by the Sixth
Amendment to the United States Constitution.
Supporting Facts: Trial was held despite the time for trial having
expired.
Ground Two: Plain Error in Amended Indictment violating the
guarantees provided by the Fifth and Fourteenth Amendment[s] to
the United States Constitution.
Supporting Facts:
Indictment was amended that added
enhancement to the charges brought by the grand jury but not by
the grand jury but by the prosecutor and outside of grand jury’s
realm.

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Ground Three: Violation of Witness Confrontation as guaranteed
by the Sixth Amendment to the United States Constitution.
Supporting Facts: Hearsay evidence was admitted through expert
testimony which did not allow witness confrontation and direct
cross examination.
Ground Four: Ineffective Assistance of Counsel in violation of
the guarantees provided by the Sixth Amendment to the United
States Constitution.
Supporting Facts: Defense counsel failed to call witnesses that
supported defense of defendant nor did counsel call defendant to
testify in his own behalf.
Ground Five: Cumulative Prejudicial Trial Error violating Fifth
and Fourteenth Amendment Guarantees of U.S. Constitution.
Supporting Facts:
Defense attorney’s failure to properly
represent defendant allowed testimony and evidence into the trial
that had objections been made and upheld prejudicial material
would not have been allowed.
Ground Six: Insufficient Evidence to Support Conviction
violating protections of Fifth and Fourteenth of U.S. Constitution.
Supporting Facts: Conflicting statements of victims were not
given proper weight in judicial consideration and heavily
prejudiced defendant.
Ground Seven: Batson violation contravening guarantees of the
V, VI, and XIV Amendments to the U.S. Constitution.
Supporting Facts: African-American member of jury venire was
excluded from panel without a race-neutral reason being provided.
(Petition, Doc. No. 1, PageID 5-14.) On Order of Magistrate Judge Deavers, the Respondent has
filed a Return of Writ (Doc. No. 7). Attorney David Doughten entered an appearance on behalf
of Petitioner and filed the Traverse on his behalf (Doc. No. 19). In doing so, counsel stated
Baer will request to amend his petition by counsel to ensure the
claims below are properly presented. It should be noted that Claim
Seven, a Batson claim, is fully exhausted and properly presented.

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Many of the other claims were not fairly presented as federal
claims in state court. Other claims need further development.

Id. at PageID 1584. The Traverse was filed August 30, 2011, and nothing further has been filed.

Analysis

Ground One: Constitutional Speedy Trial Violation

In his First Ground for Relief, Baer asserts the timing of his trial violated his
constitutional right to a speedy trial under the Sixth Amendment to the United States
Constitution. The Warden asserts this First Ground is procedurally defaulted (Answer, Doc. No.
7, PageID 38).
The procedural default defense in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas

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petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413
(6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court
on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999)(citations omitted). “Even if the state court failed to reject a claim on a procedural
ground, the petitioner is also in procedural default ‘by failing to raise a claim in state court, and
pursue that claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d
423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006), quoting
O’Sullivan v. Boerchel, 526 U.S. 838, 846-47 (1999).
To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way which 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).

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The Harrison County Court of Appeals decided Baer’s speedy trial assignment of error as
follows:
[P 27] In his first assignment of error, Baer argues:
[P 28] "The indictment for the allegations of life rape should have
been dismissed pursuant to a speedy trial violation."
[P 29] Baer asserts that the amended indictment had the effect of
bringing new charges upon Baer, renewing Baer's previously
waived right to a speedy trial. Baer again correctly limits his
argument to a plain error analysis, as he has waived the issue
through his failure to object at any point during trial.
[P 30] A defendant in a felony case has the right to be brought to
trial within two hundred seventy days after arrest. R.C.
2945.71(C)(2); Ohio Constitution Art. I §10. When a defendant
waives his right to a speedy trial, such waiver must be done
knowingly, voluntarily, and intelligently. State v. Adams (1989),
43 Ohio St.3d 67, 69, 538 N.E.2d 1025. When the State issues a
subsequent indictment, or when the State amends an indictment so
as to bring additional charges against the accused, any previous
speedy trial waiver by the defendant does not apply. Id. at syllabus.
However, when the State amends an indictment but does not
change the name or identity of the offense charged, any prior
speedy trial waiver by the defendant continues to apply. State v.
Campbell, 150 Ohio App.3d 90, 2002 Ohio 6064, 779 N.E.2d 811,
at P24, affirmed by State v. Campbell, 100 Ohio St.3d 361, 2003
Ohio 6804, 800 N.E.2d 356.
[P 31] As discussed supra, the trial court did not erroneously
amend the indictment against Baer, and the changes that were
made did not constitute changes in the name or identity of the
crime. The specifications complained of did not have the effect of
placing an additional burden on Baer's liberty, and thus were not
the equivalent of new charges. Given the foregoing, Baer's speedy
trial waiver applied to the entirety of his court proceedings. Baer's
first assignment of error is meritless.
State v. Baer, No. 07 HA 8, 2009 Ohio 3248, 2009 Ohio App. LEXIS 2812 ¶¶ 27-31. As this
opinion makes clear, Baer argued the speedy trial issue on appeal solely as a matter of state law.
Indeed, Baer admits in his Traverse that this issue was not presented to the Ohio courts as a

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matter of federal law. (Traverse, Doc. No. 19, PageID 1585-1586.) Therefore Baer procedurally
defaulted any federal constitutional speedy trial claim he may have had by not fairly presenting it
to the state courts.
Independent of the fair presentation default, Baer also defaulted by not raising any speedy
trial objection at trial. The court of appeals recognized and enforced this default by analyzing
the speedy trial claim only under plain error doctrine. State v. Baer, supra, ¶ 29. Ohio’s
contemporaneous objection rule — that parties must preserve errors for appeal by calling them to
the attention of the trial court at a time when the error could have been avoided or corrected, set
forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v.
Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground of
decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012)(citing Keith v. Mitchell, 455
F.3d 662, 673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v.
Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003),
citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th
Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224
F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 131 S. Ct. 185 (2010).
A state appellate court’s review for plain error is enforcement, not waiver, of a procedural
default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d
478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v.
Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005);
Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th
Cir. 2000)(plain error review does not constitute a waiver of procedural default); accord, Mason

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v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Therefore Baer’s constitutional speedy trial claim made in Ground One is procedurally
defaulted on two separate bases and should be dismissed with prejudice.

Ground Two: Indictment Amended by the Court, Not the Grand Jury

In his Second Ground for Relief, Baer complains that the indictment was amended by the
Court on motion of the prosecutor and not taken back to the grand jury, thus depriving him of his
right to grand jury indictment under the Fifth Amendment. The Warden also asserts that this
Ground for Relief is procedurally defaulted.
The court of appeals decided the indictment amendment claim as follows:
[*P15] In his second of seven assignments of error, Baer argues:
[*P16] "The trial court committed plain error by allowing the

indictment to be amended to involve force which added an element
elevating the charge to a life count rape without proper
consideration by the grand jury and allowing the "specification" of
rape of a child younger than ten years of age."
[*P17] Baer claims that the indictment as amended increased the
penalty for the rape charges and included two new substantive
specifications: force, and that the victims were under ten years of
age. Baer further claims that the penalty for the rape charges was
erroneously enhanced due to the correction of the rape charge as a
special first degree felony rather than a first degree felony.
[*P18] Baer correctly limits his argument to a plain error

analysis, as he did not object to the amendment of the indictment at
trial. HN1 An appellate court does not have to resolve an alleged
error if it was never brought to the attention of the trial court "at a
time when such error could have been avoided or corrected by the
trial court." State v. Carter, 89 Ohio St.3d 593, 598, 2000 Ohio
172, 734 N.E.2d 345. In the absence of objection, this court may
only examine the court's actions for plain error. Id. Plain error
should be used "with the utmost caution, under exceptional
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circumstances and only to prevent a manifest miscarriage of
justice." State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68, 759
N.E.2d. 1240. A claim of plain error does not stand unless, but for
the error, the outcome of the trial would have been different: "[t]he
test for plain error is stringent. A party claiming plain error must
show that (1) an error occurred, (2) the error was obvious, and (3)
the error affected the outcome of the trial. State v. Davis, 116 Ohio
St.3d 404, 2008 Ohio 2, 880 N.E.2d 31, at P378.
[*P19] Pursuant to Crim.R. 7(D), the court may at any time before,
during, or after a trial amend the indictment, information,
complaint, or bill of particulars, with respect to any defect,
imperfection, or omission in form or substance, or of any variance
with the evidence, provided no change is made in the name or
identity of the crime charged. What exactly constitutes a change in
the identity of a crime is somewhat unclear, but a change does
occur when the amended indictment contains different elements
requiring independent proof, or increases the severity of the
charged offense. State v. Fairbanks, 172 Ohio App. 3d 766, 2007
Ohio 4117, P19, 21, 876 N.E.2d 1293.
[*P20] The rape charges in the original July 7, 2006 indictment
against Baer were cited as being in violation of R.C.
2907.02(A)(1)(b), which prohibits sexual conduct with a person
under the age of thirteen. R.C. 2907.02 is generally a first degree
felony, and was listed as such in the indictment. However, R.C.
2907.02(B) further specifies that an offender under (A)(1)(b) who
engages in sexual conduct with a person under the age of ten or
who uses force or threats of force "shall be imprisoned for life."
Within the indictment's two rape counts, the victims were
described as being under the age of ten.
[*P21] At Baer's request, the State filed a Bill of Particulars on

October 4, 2006 which stated that Baer was charged with rape in
violation of R.C. 2907.02(A)(2), prohibiting sexual conduct with
another person "when the offender purposely compels the other
person to submit by force or threat of force." The bill of particulars
identified the offense as a special first degree felony. The
description of the charges included specifics as to the sexual
conduct involved, the age of the victims, and the threats of force
involved.
[*P22] Subsequent to a phone conference with the trial court and
all attorneys involved, the State filed a Motion to Amend
Indictment pursuant to Crim.R. 7(D), which the trial court granted
on May 24, 2007. The amended indictment identified the rape
8

offenses as special first degree felonies in violation of R.C.
2907.02(A)(1)(b), moved the description of the victims' ages to a
separate "specification" section, and included a specification that
the offense was committed with force or threats of force. The trial
court stated that the amended indictment did not change the nature
or elements of the indictment, that Baer had sufficient notice of the
offense, and that the amendment corrected a clerical error. Baer did
not object to the amendment at any stage. The trial court granted
an additional amendment at the end of trial to clarify the identity of
the victims for each offense.
[*P23] The amendments relating to the age of the victims and the

type of felony were clarifications or corrections of clerical errors at
most. Moreover they could not be considered a change in the name
or identity of the charged offense, because the age of the victims
and the statute subsection involved were explicitly indicated in the
original indictment. Thus there was no error involved in these
changes.
[*P24] Similarly, the addition of the "force" specification to Baer's
indictment was not erroneous, or was harmless error at best. If a
person is found guilty of R.C. 2907.02(A)(1)(b), i.e. that he has
engaged in sexual conduct with a person under thirteen years of
age, then he is guilty of a first degree felony. Under 2907.02(B),
the penalty from the finding of guilt may be raised to a mandatory
life sentence either if the offender used force or threats of force, or
if the victim was under ten years of age. Thus force is not an
element required to prove guilt under R.C. 2907.02(A)(1)(b); it is
only a specification which may enhance the penalty thereof. A
specification that only enhances the penalty is not required to be
included in the indictment. State v. Bowen (Dec. 8, 1999), 7th Dist.
No. 96-CO-68, 1999 Ohio App. LEXIS 5959 at *23, citing State v.
Allen (1987), 29 Ohio St.3d 53, 29 OBR 436, 506 N.E.2d 199.
[*P25] Moreover, Baer's offense had already been elevated to the

life sentence level due to the age of the victims. Even if the State
had left out the force specification, not proved the element of
force, and not received a finding of force by the jury, the trial court
still would have been statutorily required to sentence Baer to a life
term subsequent to a jury finding of guilty. Therefore the alleged
error would not have affected the outcome of Baer's trial.
[*P26] The trial court therefore did not commit any error by

allowing the foregoing amendments in Baer's indictment, and any
potential error would have been harmless beyond a reasonable

9

doubt. Because the trial court did not err, let alone commit plain
error, Baer's second assignment of error is meritless.
State v. Baer, supra, ¶¶ 15-26.
This Ground for Relief is procedurally defaulted for the same reasons as Ground One:
Baer’s counsel made no contemporaneous objection and this claim was not fairly presented as a
federal claim in state court, as Baer concedes (Traverse, Doc. No. 19, PageID 1587).
Furthermore, this Ground for Relief does not state a claim cognizable in federal habeas corpus
because the Fifth Amendment guarantee of grand jury indictment has never been held applicable
to the States. Hurtado v. California, 110 U.S. 516 (1884); Branzburg v. Hayes,408 U.S. 665,
687-88 n. 25 (1972); Gerstein v. Pugh, 420 U.S. 103 (1975); Williams v. Haviland, 467 F.3d 527
(6th Cir. 2006)(Apprendi does not change this result).
The Second Ground for Relief should be dismissed with prejudice.

Ground Three: Confrontation Clause Violation

In his Third Ground for Relief, Baer asserts his Confrontation Clause rights were violated
by admission of hearsay statements at trial. The warden asserts Ground Three is procedurally
defaulted for lack of contemporaneous objection and under the invited error doctrine.
The court of appeals decided the Confrontation Clause issue as follows:
[*P32]

In his third assignment of error, Baer argues:

[*P33] "The defendant's right to confront witnesses was violated
by the inclusion of testimony of counselors and children services
workers [in] contravention of the 6th Amendment and the 14th
Amendment."
[*P34] Baer asserts that the testimony of Carrothers, Delilo-Storey
and Book, as well as the video-taped interviews of AB and SB
10

should have been excluded from evidence. Baer argues that the
statements were hearsay, not within the medical diagnosis
exception, and violative of Baer's right to confrontation.
[*P35] Before addressing the merits of this argument, we again
note that Baer's failure to object to any of this evidence waives all
but plain error. More importantly, Baer has invited the error to
which he now objects. The record reflects that Baer stipulated to
the admission of the video tape. Baer also entered a joint motion to
admit the counseling notes of DeLillo-Storey and Sara Book, and
stipulated to the admission of Carrothers' written investigative
report. During opening statements for the case, counsel for Baer
indicated that the testimony of the children and of the counselors
would demonstrate inconsistencies and evidence of coaching.
Counsel also indicated in opening statements that the testimony of
Carrothers and others would demonstrate that the case against Baer
was insubstantial.
[*P36] Baer expressly allowed the evidence and testimony in order
to point out the weakness and inconsistencies in the State's case.
We must therefore conclude that Baer "invited any error and may
not take advantage of an error which he himself invited or
induced." State v. Davis, 116 Ohio St. 3d 404, 2008 Ohio 2, 880
N.E.2d 31, at P86. Baer's third assignment of error has been
completely waived, and is thus meritless.
State v. Baer, supra, ¶¶ 32-36. Baer concedes in his Traverse that the state court of appeals
properly found this Ground for Relief to be defaulted (Traverse, Doc. No. 19, PageID 1591).
Therefore Ground Three for Relief should be dismissed with prejudice.

Ground Four: Ineffective Assistance of Trial Counsel: Witnesses Not Called,
Including Baer

In his Fourth Ground for Relief, Baer contends that his trial attorney provided ineffective
assistance of trial counsel when he failed to call certain witnesses, including Baer himself, who
would have provided helpful testimony.
The Petition does not identify who these witnesses would have been (except Baer

11

himself) or what any of them would have testified to.
In the Traverse Baer incorrectly asserts that this claim was presented to the state court of
appeals, but when the ineffective assistance of trial counsel assignment of error made on direct
appeal is examined, it is clear it was not the same claim. Instead, Baer asserted that his counsel
was ineffective for failing to object to the admission of the counselors’ testimony, the
amendment of the indictment, and the statutory speedy trial issue. State v. Baer, supra, ¶ 42.
That is simply not the same claim made in the Petition.
If a petitioner’s claims in federal habeas rest on different theories than those presented to
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
12

pertinent] constitutional law."
Hicks at 552-53, citing McMeans, 228 F.3d at 681. See also Fulcher v. Motley, 444 F.3d 791 (6th
Cir. 2006).
The Warden labels her defense to this Ground for Relief as lack of exhaustion, but the
body of the argument presents what amounts to a procedural default defense. Since the claim as
made in federal court plainly depends on evidence outside the record, it would have to be
presented to the state courts in a petition for post-conviction relief. The time for presenting such
a petition under Ohio Revised Code § 2953.21 has long since expired, as Respondent notes
(Answer, Doc. No. 7, PageID 42). Ohio allows a late filing under Ohio Revised Code § 2953.23
if a petitioner can show that he was unavoidably prevented from discovering the underlying facts
and that, but for constitutional error at trial, no reasonable factfinder would have found him
guilty. While the Warden stated in March, 2011, when the Answer was filed that “[i]t is not
clear if Baer meets either of these exceptions,” it is now nearly two years later and, so far as this
Court is advised, Baer has not filed a delayed post-conviction petition under Ohio Revised Code
§ 2953.23. In the Traverse counsel admits that the ineffective assistance of trial counsel claims
made in the Petition were not raised in state court and “[i]t will be necessary to request an
amended petition which will be done so at a later date.” (Traverse, Doc. No. 19, PageID 1594.)
However, no such amendment has been requested and the time for doing so is long since past.
Because Baer never presented his Fourth Ground for Relief to the state courts and the
time within which to do so has expired, the claim is procedurally defaulted and should be
dismissed with prejudice on that basis.

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Ground Five: Cumulative Prejudicial Error

In his Fifth Ground for Relief, Petitioner argues that the errors made by his trial attorney
cumulatively deprived him of a fair trial. The Warden argues that this claim is procedurally
defaulted because, although presented to the state court of appeals, it was not reiterated in Baer’s
appeal to the Ohio Supreme Court (Answer, Doc. No. 7, PageID 43-44.)
In the Traverse, Baer’s counsel admits that claim was not brought forward from the court
of appeals to the Ohio Supreme Court and asserts the claim “has not been exhausted.” However,
Baer does not suggest that there is any way he could now exhaust the claim by presenting to that
court, given that he already took an appeal to that court from which this claim was omitted. As
the Warden points out, Ohio has a criminal res judicata doctrine which bars consideration in a
later proceeding of a claim which could have been, but was not, raised in a prior proceeding.
The Sixth Circuit has repeatedly held that Ohio’s doctrine of res judicata in criminal
cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an adequate and independent
state ground. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337
(6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486,
521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van
Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). Judge Moore recognizes this as a
ruling of the Sixth Circuit in Mason v. Mitchell,320 F.3d 604 (6th Cir. 2003), citing Coleman v.
Mitchell, supra, Rust v. Zent, supra, and Riggins v. McMackin, 935 F.2d 790 (6th Cir. 1991).
Because Baer failed to include this claim on direct appeal to the Ohio Supreme Court, it
is procedurally defaulted and should be dismissed with prejudice on that basis.

14

Ground Six: The Conviction Rests on Constitutionally Insufficient Evidence

In his Sixth Ground for Relief, Baer asserts his conviction rests on constitutionally
insufficient evidence. The Warden concedes this claim is preserved for merit review in habeas
corpus (Answer, Doc. No. 7, PageID 46-50). The Seventh District Court of Appeals decided
this claim on the merits as follows:
[*P44] In his sixth assignment of error, Baer argues:
[*P45] "There was insufficient evidence presented to convict the
appellant of the crimes charged."
[*P46] In reviewing a challenge of insufficient evidence, "the
inquiry is, after viewing the evidence in the light most favorable to
the prosecution, whether any reasonable trier of fact could have
found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 273,
574 N.E.2d 492, superseded by state constitutional amendment on
other grounds. The court does not examine the credibility of the
witnesses, nor does it weigh the evidence in this process. State v.
Goff (1998), 82 Ohio St.3d 123, 139, 1998 Ohio 369, 694 N.E.2d
916. Sufficiency of the evidence is a test of adequacy, used to
"determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a matter
of law." State v. Thompkins, 78 Ohio St.3d 380, 386, 1997 Ohio
52, 678 N.E.2d 541 (internal citations omitted). This is a burden of
production, not of persuasion. Thompkins at 390.
[*P47] Baer states that the evidence for his case is legally
insufficient because the statements made by the two victims in trial
contradicted previous statements the victims made to medical
personnel, the Children's Services worker, and counselors.
Additionally, Baer asserts that the children's mother, social worker,
and counselors all lead or coached the children to say what they
did. The only element specific to an offense that Baer discusses is
"penetration," which he asserts was not established by credible
evidence. In Baer's own recountal of the facts, he notes the points
at which both victims described the act of penetration, and again
relies on conflicting testimony as a basis for this argument.
[*P48] If there are inconsistencies in the testimony, the task of
15

assessing witness credibility belongs to the trier of fact, and not to
the reviewing appellate court. State v. Were, 118 Ohio St.3d 448,
2008 Ohio 2762, 890 N.E.2d 263, at P132. While Baer's arguments
would be relevant in a manifest weight argument, this court must
resolve conflicting testimony in favor of the prosecution in a
sufficiency analysis. In such resolution, the testimony, which
asserted all of the elements of the crimes charged, is taken to be
true. Thus Baer has not demonstrated any insufficiencies in the
evidence, and the sixth assignment of error is rejected.
State v. Baer, supra, ¶¶ 44-48.
When a state court decides on the merits a federal constitutional claim later presented to a
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).
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
16

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259, 574 N.E. 2d 492 (1991). Of course,
it is state law which determines the elements of offenses; but once the state has adopted the
elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008).
We have made clear that Jackson claims face a high bar in federal
17

habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
In his Traverse, Baer concedes “[i]n the present case, the testimony of the victim’s [sic],
if believed, would establish sufficient evidence to sustain a conviction under a standard of review
‘most favorable to the prosecution.’” (Traverse, Doc. No. 19, PageID 1596.) Because that
standard is the one adopted by the Supreme Court in Jackson v. Virginia, supra, the court of
appeals’ decision on this claim is neither contrary to nor an objectively unreasonable application
of clearly established Supreme Court precedent. Ground for Relief Six should be dismissed with
prejudice on the merits.

Ground Seven: Racially Discriminatory Exclusion of a Juror

In his Seventh Ground for Relief, Baer claims the prosecutor used a peremptory jury
challenge to remove a potential trial juror on a racially-discriminatory basis, in violation of the
Fourteenth Amendment.

The Warden concedes that this claim is preserved for merit

consideration in habeas corpus (Answer, Doc. No. 7, PageID 51-55).
The state court of appeals decided this claim on the merits as follows:
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[*P49] In his seventh assignment of error, Baer argues:
[*P50] "The prosecution preemptively challenging a black
prospective juror because of race violated the accused's due
process rights under the 14th Amendment and Article I § 16 of the
Ohio Constitution."
[*P51] Baer asserts that the State excluded the only African
American member of the jury venire without providing a valid and
race-neutral reason, in contravention of the Supreme Court's
decision in Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69.
[*P52] A prosecutor violates the Equal Protection Clause of the
United States Constitution when she uses peremptory challenges to
purposefully exclude members of a minority group because of their
minority status. Batson at 85-86; State v. Bryan, 101 Ohio St.3d
272, 2004 Ohio 971, 804 N.E.2d 433. Courts analyze a Batson
claim in three steps: 1) the opponent of the peremptory strike must
make a prima facie case of racial discrimination; 2) the party
making the peremptory challenge must present a racially neutral
explanation for the challenge; and, 3) the trial court must decide
whether the opponent has proved a purposeful racial
discrimination. Batson at 96-98; State v. Herring, 94 Ohio St.3d
246, 255-56, 2002 Ohio 796, 762 N.E.2d 940. The parties in the
case sub judice argued this issue with the assumption that Baer
made a prima facie case of racial discrimination.
[*P53] When a trial court evaluates the attorney's explanation, "a
court must determine whether, assuming the proffered reasons for
the peremptory challenges are true, the challenges violate the
Equal Protection Clause as a matter of law." Hernandez v. New
York (1991), 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395.
Appellate courts review Batson determinations with great
deference, and a trial court's findings of no discriminatory intent
will not be reversed unless clearly erroneous. Hernandez at 365;
Bryan at P 106.
[*P54] A race-neutral explanation for a peremptory challenge is
simply "an explanation based on something other than the race of
the juror." Hernandez v. New York (1991), 500 U.S. 352, 360, 111
S. Ct. 1859, 114 L. Ed. 2d 395. "[T]he prosecutor's explanation
need not rise to the level justifying exercise of a challenge for
cause." Batson at 97. The explanation must relate to the particular
case being tried and be both clear and reasonably specific. Batson
at 98, footnote 20. Although some relevancy is required of the
19

explanation, it does not need to be "'persuasive, or even plausible':
so long as the reason is not inherently discriminatory, it suffices."
Rice v. Collins (2006), 546 U.S. 333, 338, 126 S.Ct. 969, 163
L.Ed.2d 824, quoting Purkett v. Elem (1995), 514 U.S. 765, 767768, 115 S.Ct. 1769, 131 L.Ed.2d 834. See also, Hernandez at 360
("Unless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral.").
[*P55] In the case sub judice, the parties did not dispute that Baer
established a prima facie case of racial discrimination, as the juror
in question was the only African American in the jury venire. The
State questioned the juror, Mr. Jones, as follows:
[*P56] "Q: Have you or one of your family members been accused
of a crime?
[*P57] "A: My son years ago had an affair with a girl and had a
child.
[*P58] "Q: What kind of case was that?
[*P59] "A: It never came up to –
[*P60] "Q: So it never came to court.
[*P61] "A: No.
[*P62] "Q: So there was an allegation made but that matter was
not brought to court. And because there was an allegation made
against your son and we have a case where allegations have been
made against Mr. Baer would that -- could you put that past history
with your son out of your mind and listen only to what is said here
at the witness stand?
[*P63] "A: Yes.
[*P64] "Q: And you could put that past incident with your son out
of your mind and not bring it into your decision making?
[*P65] "A: Yes.
[*P66] * *
[*P67] "Q: The subject matter of this case obviously is offensive to
some people. Because we're dealing with offensive subject matter
would you be able to listen to this case or is the matter so offensive
20

that you would tend to tune out what is being said?
[*P68] "A: I find it offensive, very offensive. I really am not sure
if could (inaudible).
[*P69] "Q: * * * And in this case, you know, the allegations are
that there was sexual conduct and sexual contact by Mr. Baer with
his two young children. Do you think you could listen to that
evidence or will that evidence be of such a nature that it will be
difficult for you to listen to that to the fact where you might zone
out on it instead of listening to all (inaudible). Does that make
sense?
[*P70] "A: It'd be difficult.
[*P71] "Q: * * * It's going to be difficult for us all to deal with this
case, difficult for everyone in this room including the Defendant to
listen to the evidence. But as a juror it's your job to listen to the
evidence and be able to listen to all the evidence and make a
decision. Now, because this matter is about sexual abuse do you
think you can sit here and listen to evidence about sexual abuse?
[*P72] "A: Yes.
[*P73] "Q: And if you can listen to it then you can be fair and
impartial.
[*P74] "A: Yes.
[*P75] The State later exercised its third peremptory challenge to
excuse Mr. Jones. Baer raised the Batson challenge in a sidebar
conference with the judge, which was not transcribed. Because the
sidebar conversation was not recorded, the trial court entered an
Appellate Rule 9 Statement of Record as to what transpired during
the discussion. The trial court "noted that some of Mr. Jones'
responses demonstrated his doubts about serving as a juror in this
case."
[*P76] The record indicates that the State provided a race-neutral
reason for excusing Mr. Jones from the jury, and that the
statements by Mr. Jones support the State's reason for excusing
him. Mr. Jones stated that he could be fair and impartial in the
case, but also indicated that it would be difficult to hear the case
and stated "I find it offensive, very offensive. I really am not sure
if I could (inaudible)." Mr. Jones also answered affirmatively,
albeit vaguely, to questions about family members being accused
21

of crimes. A prospective juror's equivocal answers or expressions
of uncertainty about impartiality or matters pertinent to the case are
sufficiently race-neutral reasons for exercising a peremptory
challenge. State v. Were, 118 Ohio St.3d 448, 2008 Ohio 2762, 890
N.E.2d 263, at P65 (prospective juror had uncertain position on the
death penalty); State v. Franklin, 7th Dist. No. 06-MA-79, 2008
Ohio 2264, at P70-92 (prospective juror's attentiveness and
understanding of burden of proof was uncertain); State v. Person,
174 Ohio App.3d 287, 2007 Ohio 6869, 881 N.E.2d 924, at P33
(prospective juror made a disdainful facial expression during the
State's questions).
[*P77] Baer did not demonstrate that the State's reason for the
peremptory challenge was "so at odds with the evidence that
pretext is the fair conclusion." State v. Frazier, 115 Ohio St.3d
139, 2007 Ohio 5048, 873 N.E.2d 1263, at P66. The trial court was
in the best position to evaluate the exchange between the attorneys
and the jury venire, and was in the best position to discern whether
the State's reason for peremptory challenge was pretextual.
"Appellate judges cannot on the basis of a cold record easily
second-guess a trial judge's decision about likely motivation. These
circumstances mean that appellate courts will, and must, grant the
trial courts considerable leeway in applying Batson." Rice v.
Collins at 343. (Breyer, J., concurring). The trial court completed
the Batson analysis appropriately and determined that the State had
valid race-neutral reasons for excluding Mr. Jones. The trial court's
ruling on the Batson challenge was not clearly erroneous. Given
the foregoing, Baer's seventh assignment of error is meritless.
State v. Baer, supra, ¶¶ 49-77.
In arguing this claim on the merits, Petitioner does not assert that the court of appeals’
decision was contrary to controlling United States Supreme Court precedent and the Magistrate
Judge concludes that it was not.
Batson v. Kentucky, 476 U.S. 79 (1986), prohibits race-based peremptory challenges by a
prosecutor. Powers v. Ohio, 499 U.S. 400 (1991), holds that a criminal defendant, regardless of
race, may object to race-based exclusion. Batson holds a state criminal defendant can establish a
prima facie case of purposeful racial discrimination in the selection of jurors solely by proof of
peremptory challenges to exclude members of the defendant's race. The potential juror excluded,
22

Mr. Jones, was in fact African-American and the parties assumed Baer had made out a prima
facie Batson violation.
A trial court must use a three-step process to evaluate a Batson claim. First, the opponent
must make a prima facie showing that the proponent of the strike has exercised a peremptory
challenge on the basis of race. The burden then shifts to the proponent to articulate a raceneutral reason for the challenge. Finally, the trial court must determine if the opponent has
carried his burden of proving purposeful discrimination. Purkett v. Elem, 514 U.S. 765 (1995);
Hernandez v. New York, 500 U.S. 352 (1991). The court of appeals’ decision reflects that it
understood this controlling Supreme Court precedent and found that the trial court had followed
the prescribed process for adjudicating a Batson claim.
A trial judge’s conclusion that the challenge was race-neutral must be upheld unless it is
clearly erroneous. Hernandez; supra; United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir.
1996); United States v. Peete, 919 F.2d 1168, 1179 (6th Cir. 1990). At the third stage of Batson
analysis, the defendant has the opportunity to rebut the proffered race-neutral reason as pretext,
and the trial court determines whether the defendant has established purposeful discrimination.
Batson, 476 U.S. at 93-98; accord Braxton v. Gansheimer, 561 F.3d 453 at 458-59 (6th Cir.
2009). The defendant "always bears the ultimate burden of persuasion.” Akins v. Easterling, 648
F.3d 380, 387 (6th Cir. 2011), citing Braxton, 561 F.3d at 459.
Acknowledging that the state courts recognized the governing precedent, Baer argues
they applied it unreasonably (Traverse, Doc. No. 19, PageID 1605).
Because the sidebar conference during which the Batson challenge was raised was not
recorded in the trial court, the record on appeal was supplemented by Judge Nunner’s statement
of what occurred. (Return of Writ, Doc. No. 7, PageID 147-148, with attached relevant pages of

23

the voir dire transcript.) The record does not indicate that any party objected to Judge Nunner’s
summary. The summary clearly shows that Baer made a prima facie showing under Batson, to
wit, that prospective juror Jones was African-American and the State was clearly seeking to
exclude him by exercising a peremptory challenge. The prosecutor responded that he was not
seeking to exclude Mr. Jones because of his race, “but choose [sic] to exclude him based on a
number of his responses which implied he had reservations about being a part of the process.”
Id. at PageID 147-148. There is no indication of any argument by Baer’s counsel to attempt to
demonstrate that the stated reason is pretextual. Judge Nunner notes that the “arguments were
relatively brief.” Id. at PageID 148.
The arguments now made on habeas as to why the prosecutor’s reasons were pretextual
are as follows:
1.

“[T]he prosecutor dismissed the minority juror because he expressed reservations about

serving because he had two daughters.” (Traverse, Doc. No. 19, PageID 1603.) Mr. Jones, in
response to the prosecutor’s questions about whether he had any daughters, answered yes.
(Return of Writ, Doc. No. 7, PageID 151.) When asked if he could put his own children out of
his mind when deciding the case, he answered “I’m sure you try to” and “I believe I can do that.”
2.

“It is difficult to believe that any prospective juror would not be bothered by the

allegation. Juror Jones merely stated what the other juror’s [sic] were undoubtedly thinking,
except that he was punished for it. Juror Jones did not indicate any real reluctance to serve fairly
and honestly.” (Traverse, Doc. No. 19, PageID 1603). When asked by the prosecutor if he
would find the subject matter of the case “so offensive that you would tend to tune out what is
being said,” Mr. Jones responded “I find it offensive, very offensive. I am not really sure if I
could (inaudible).” (Return of Writ, Doc. No. 7, PageID 152.) When the prosecutor continued

24

“Do you think . . . you might zone out [because of the nature of the evidence], Mr. Jones
responded “It’d be difficult.” Id.
Mr. Jones expressed his reservations about serving because of the nature of the subject
matter three times before the prosecutor asked the general rehabilitating questions about whether
Mr. Jones could be fair and impartial.
The question before this Court on habeas is not whether Baer’s current counsel can make
an argument for a Batson violation. Rather, the question must be whether Baer’s trial counsel
carried his burden of proving that the peremptory challenge was racially discriminatory. Trial
counsel, so far as the record shows, did not make either of the arguments now made by habeas
counsel or indeed any argument at all. Based on the record, it cannot be said that Judge
Nunner’s finding of no racial animus was clearly erroneous. Mr. Jones’ responses did indicate
reluctance to participate in this kind of case. He did indicate his son had been involved in some
sort of sexual misconduct. It was the prosecutor who asked the rehabilitating questions of Mr.
Jones.

And Mr. Jones was excused only on the exercise of the State’s third peremptory

challenge.
It is certainly true that the prosecutor could not have excused Mr. Jones for cause based
on his voir dire answers, but lack of cause for an excuse does not prove that exercise of a
peremptory challenge had a racial rather than a race-neutral reason. The prosecutor stated a raceneutral reason, Baer’s trial counsel apparently made no response, and Judge Nunner decided that
Baer had not carried his burden of proving racial animus. The court of appeals’ decision
affirming that holding is not an unreasonable application of Batson and its Supreme Court
progeny.
Baer’s Seventh Ground for Relief should be dismissed with prejudice on the merits.

25

Conclusion

Based on the foregoing analysis, the Petitioner herein should be dismissed with prejudice.
Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability and this Court should certify to the Sixth Circuit that an appeal would
not be taken in objective good faith and should therefore not be permitted to proceed in forma
pauperis.

January 28, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

26