Myers v. Warden Allen Correctional Institution
Filing
19
REPORT AND RECOMMENDATIONS: Doc # 6 MOTION to Dismiss Habeas Petition filed by Warden Allen Correctional Institution be GRANTED; Doc # 7 MOTION for Summary Judgment filed by Cristen L Myers, Sr. be DENIED; Objections to R&R due by 8/19/2013. Signed by Magistrate Judge Mark R. Abel on 8/1/13. (sh1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CRISTEN L. MYERS, SR.,
CASE NO. 2:12-CV-0975
JUDGE FROST
MAGISTRATE JUDGE ABEL
Petitioner,
v.
JOHN COLEMAN, WARDEN,
Respondent.
REPORT AND RECOMMENDATION
Petitioner Cristen L. Myers, Sr., a state prisoner, brings this action for a writ of habeas
corpus under 28 U.S.C. § 2254.
This matter is before the Magistrate Judge on petition,
Respondent’s Motion to Dismiss, Petitioner’s Response, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s Motion to
Dismiss, Doc. No. 6, be GRANTED and that this action be DISMISSED.
It is FURTHER RECOMMENDED that Petitioner’s Motion for Summary Judgment,
Doc. No. 7, be DENIED, and that his request for injunctive relief, see Doc. No. 11, be DENIED,
as moot.
FACTS and PROCEDURAL HISTORY
This action involves Petitioner’s convictions after a jury trial in the Perry County Court
of Common Pleas for attempted murder, aggravated burglary, felonious assault, and violation of
a protection order. Petitioner’s convictions arise out of an incident wherein he entered the home
of his wife, Kimberly Myers, from whom he was separated in violation of a protection order, and
allegedly tried to break her neck. In February 2001, Petitioner was sentenced to an aggregate
term of twenty years incarceration.
The Ohio Fifth District Court of Appeals affirmed
1
Petitioner’s convictions and sentence; and on May 15, 2002, the Ohio Supreme Court dismissed
Petitioner’s subsequent appeal. In June 2003, Petitioner filed his first federal habeas corpus
petition. See Myers v. Konteh, Case No. 2:03-cv-663. In that action, Petitioner asserted that he
was denied a fair trial due to admission of evidence regarding ex parte court orders against him,
that the orders violate state law, that admission of this evidence constituted plain error, and that
his convictions are allied offenses of similar import and violate the Double Jeopardy Clause. In
July 2004, the Court held that Petitioner was not entitled to habeas corpus relief. Petitioner
appealed. On April 21, 2006, the United States Court of Appeals for the Sixth Circuit denied his
application for a certificate of appealability.
Petitioner subsequently returned to the state courts to challenge his convictions. He filed
a series of motions in 2005 – including a motion for delayed appeal and an application for
reopening of the appeal pursuant to Ohio Appellate Rule 26(B) – which were denied.
Additionally, in 2007, Petitioner filed a state habeas corpus petition in the state trial court, which
also was denied.1
The Ohio Fifth District Court of Appeals summarized Petitioner’s state court proceedings
as follows:
In 2001, Appellant was convicted by a jury for one count of
attempted murder, one count of aggravated burglary, one count of
felonious assault and one count of violating a protection order. By
judgment entry of sentence filed March 13, 2001, the trial court
sentenced appellant to an aggregate term of twenty years in prison.
By judgment entry of resentence filed July 13, 2001, Appellant
was resentenced in order to include the findings necessary to
impose consecutive sentences. The entry stated that the trial court
1
Respondent indicates that copies of the documents referred to are attached as Exhibits to the
Motion to Dismiss; however, none of those documents are decipherable. None of these motions,
however, are necessary to review in this action.
2
notified Appellant that postrelease control up to three years was
mandatory in this case. Appellant's convictions and sentences were
affirmed on appeal. State v. Myers, 5th Dist. No. 01–CA–5, 2002–
Ohio 253.
On May 22, 2009, Appellant filed a motion to void the unexpired
term of incarceration and for resentencing to correct the error in
the July 13, 2001 entry he was subject to only three years of
postrelease control instead of the mandatory five years. By entry
filed June 24, 2009, the trial court denied Appellant's request to
void the unexpired term of incarceration. By nunc pro tunc
judgment entry of resentence filed July 10, 2009, the trial court
corrected the error.
Appellant appealed the nunc pro tunc judgment entry. In State v.
Myers, 5 th Dist. No. 10–CA–4, 2010–Ohio–5979, (“ Myers II”)
this Court found the trial court erred in filing a nunc pro tunc entry
and resentencing Appellant without a hearing. The matter was
remanded to the trial court for a de novo hearing, citing State v.
Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250 and State v. Jordan,
104 Ohio St.3d 21, 2004–Ohio–6085.
A resentencing hearing on the matter of postrelease control was
held on March 3, 2011. By entry filed March 29, 2011, the trial
court notified Appellant that postrelease control of five years was
mandatory in this case, as well as the consequences of violating
condition of postrelease control imposed by the Parole Board.
Appellant timely appealed the resentencing entry.
Appellant raises seven Assignments of Error:
“I. THE TRIAL COURT ABUSED ITS DISCRETION BY
SENTENCING
DEFENDANT/APPELLANT
TO
CONSECUTIVE SENTENCES FOR THE CONVICTIONS OF
ATTEMPTED MURDER (ORC 2903.02(A) AND FELONIOUS
ASSULT (ORC 2903.11(A) AS SAID CRIMES ARE ALLIED
OFFENSES OF SIMILAR IMPORT.
“II. THE TRIAL COURT ABUSED ITS DISCRETION BY
SENTENCING
DEFENDANT/APPELLANT
TO
CONSECUTIVE SENTENCES FOR THE CONVICTIONS OF
FELONIOUS
ASSAULT
(ORC
2903.11(A)(1)
AND
ATTEMPTED MURDER (ORC 2903.02(A)(1) AS SAID
CRIMES ARE ALLIED OFFENSES OF SIMILAR IMPORT.
3
“III. THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY DISREGARDING THE MANDATE OF THE
FIFTH DISTRICT COURT OF APPEALS WHICH VACATED
DEFENDANT/APPELLANT'S SENTENCE WITH REMAND
FOR A DE NOVO RE–SENTENCING HEARING, CREATING
AN INJUSTICE.
“IV. THE TRIAL COURT WAS IN ERROR WHEN IT APPLIED
THE PRINCIPLE OF RES JUDICATA TO BAR THE
APPLICATION
OF
THE
NEW
SUBSTANTIVE
INTERPRETATION ANNOUNCED IN STATE V JOHNSON,
124 OHIO ST. 3D 153.
“V. THE MITTIMUS ISSUED BY THE COMMON PLEAS
COURT OF PERRY COUNTY, OHIO FOLLOWING THE
MARCH 3, 2011 RESENTENCING HEARING IS VOID AND
INSUFFICIENT TO WARRANT THE DETENTION OF
CRISTEN L. MYERS, SR.
“VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE DEFENDANT/APPELLANT BY EXCEEDING ITS
JURISDICTIONAL
AUTHORITY
WHEN
IMPOSED
CONSECUTIVE SENTENCES IN THE ABSENCE OF
STATUTORY AUTHORITY.
“VII. THE CONSECUTIVE SENTENCE IMPOSED BY TRIAL
COURT IS VIOLATIVE OF THE DEFENDANT/APPELLANT'S
LIBERTY INTEREST PROTECTED BY THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
State v. Myers, No. 11-CA-7, 2012 WL 554432, at *1-2 (Ohio App. 5th Dist. Feb. 15, 2012). On
February 15, 2012, the appellate court affirmed the trial court’s judgment. On June 20, 2012, the
Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Myers, 132 Ohio St.3d
1424 (2012).
Respondent indicates that on May 4, 2011, Petitioner filed a second state habeas corpus
petition in the state trial court, asserting that he is being unlawfully held under an unlawful
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sentence.2 The state trial court dismissed Petitioner’s state habeas corpus petition. Petitioner
filed a motion for relief from judgment in the state trial court On June 13, 2011, the trial court
denied Petitioner’s motion. On November 7, 2011, the appellate court affirmed the judgment of
the trial court. Petitioner apparently did not file an appeal to the Ohio Supreme Court.
On October 22, 2012, Petitioner filed this action for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the
Constitution of the United States based upon the following grounds:
1.
The state trial court violated the Double Jeopardy Clause of
the Fifth Amendment and Cristen L. Myers, Sr.’s liberty
interest when it imposed separate statutory convictions for the
allied offenses of attempted murder, aggravated burglary, and
felonious assault.
2.
The state trial court violated the Double Jeopardy Clause of
the Fifth Amendment when the trial court sentenced Cristen L.
Myers, Sr. to consecutive terms of incarceration for the allied
offenses of attempted murder, aggravated burglary, and
felonious assault.
3. Cristen L. Myers, r. is currently incarcerated under a vacated
sentence that has not been re-instated by a trial court, violating
his Fifth and Fourteenth Amendment rights.
4. The state trial court violated Cristen L. Myers, Sr.’s liberty
interest when it failed to provide him the equal protection of
the retroactive interpretation of State v. Johnson, 128 Ohio
St.3d 153.
5. The state trial court violated Cristen L. Myers, Sr.’s right to the
equal protection of the law when the trial court determined that
it was a valid use of the retroactive interpretation of State v.
Fischer, 128 Ohio St.3d 92 to correct the void portion of
2
Again, the copies of these documents attached to Respondent’s Motion to Dismiss are not
legible. Again, however, review of these documents is not required for resolution of Petitioner’s
§ 2254 petition.
5
Myers’ sentence that violated O.R.C. 2967.28 while
simultaneously determining that it was not a valid use of the
retroactive interpretation of State v. Fischer, 128 Ohio St.3d 92
to correct the void portions of Myers’ sentence that violated
O.R.C. 2941.25.
6. The trial court violated due process and equal protection of the
law when it denied Cristen L. Myers, Sr. the resentencing
rights pursuant to Ohio Revised Code 2929.19.
7. The state trial court violated Cristen Myers, Sr.’s
constitutionally protected liberty interest of having his conduct
weighed when the trial court failed to provide him with the
equal protection of Ohio’s allied offense statute, O.R.C.
2941.25, resulting in multiple convictions for the same criminal
offense that violates the Double Jeopardy Clause of the Fifth
[and Fourteenth Amendments of the United States
Constitution.
It is the position of the Respondent that this action constitutes a successive petition.
Alternatively, Respondent contends that Petitioner’s claims are barred by the one-year statute of
limitations, not cognizable for federal habeas corpus review, or waived.
MOTION FOR SUMMARY JUDGMENT
Petitioner has filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.3 Doc. No. 7. In support of this motion, he has attached documents
relating to his conviction and sentence, as well as an affidavit in support and proposed
3
Rule 56 of the Federal Rules of Civil Procedure provides in relevant part:
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary
judgment, identifying each claim or defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise,
a party may file a motion for summary judgment at any time until 30 days after the close of all
discovery.
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undisputed facts. See Exhibits to Motion for Summary Judgment. In his Motion for Summary
Judgment, Petitioner generally raises the same arguments he does in his petition for habeas
corpus relief, arguing that he is entitled to relief on his claims.
The Court does not grant a motion for summary judgment in habeas corpus proceedings,
because to do so would be tantamount to granting Petitioner a judgment of default, which relief
is not available in habeas corpus proceedings.
Alder v. Burt, 240 F.Supp.2d 651, 677
(2003)(citing Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970), superseded on other grounds by
statute as stated in Cobb v. Perini, 832 F.2d 342 (6th Cir. 1987)(other citations omitted)). See
also Lemons v. O’Sullivan, 54 F.3d 347, 364-65 (7th Cir. 1995)(“Default judgment is an extreme
sanction that is disfavored in habeas corpus cases”); Gordon v. Duran, 895 F.2d 610, 612 (9th
Cir. 1990)(“The failure to respond to claims raised in a petition for habeas corpus does not entitle
the petitioner to a default judgment”); Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987)(“a
default judgment is not contemplated in habeas corpus cases”).
Petitioner’s Motion for Summary Judgment, Doc. No. 7, therefore is DENIED.
SUCCESSIVE CLAIMS
Under 28 U.S.C. § 2244(b)(3)(A), before a second or successive petition for a writ of
habeas corpus can be filed in the district court, the applicant must move in the appropriate circuit
court of appeals for an order authorizing the district court to consider the application. Under the
Antiterrorism and Effective Death Penalty Act (AEDPA), a district court does not have
jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas corpus
in the absence of an order from the court of appeals authorizing the filing of such successive
motion or petition. Nelson v. United States, 115 F.3d 136 (2nd Cir.1997); Hill v. Hopper, 112
F.3d 1088 (11th Cir. 1997). Unless the court of appeals has given approval for the filing of a
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second or successive petition, a district court in the Sixth Circuit must transfer the petition to the
Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir.1997)(per curia). Under §
2244(b)(3)(A), only a circuit court of appeals has the power to authorize the filing of a
successive petition for writ of habeas corpus. Nunez v. United States, 96 F.3d 990 (7th Cir.
1996).
That being the case, this Court is without jurisdiction to entertain a second or successive
§ 2254 petition unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth
Circuit, in turn, will issue this certification only if petitioner succeeds in making a prima facie
showing either that the claim sought to be asserted relies on a new rule of constitutional law
made retroactive by the United States Supreme Court to cases on collateral review; or that the
factual predicate for the claim could not have been discovered previously through the exercise of
diligence, and these facts, if proven, would establish by clear and convincing evidence that, but
for the constitutional error, no reasonable factfinder would have found the applicant guilty. 28
U.S .C. § 2244(b)(2).
The Sixth Circuit described the proper procedure for addressing a second or successive
petition filed in the district court without § 2244(b)(3)(A) authorization in In re Sims.
[W]hen a prisoner has sought § 2244(b)(3)(A) permission from the
district court, or when a second or successive petition for habeas
corpus relief or § 2255 motion is filed in the district court without
§ 2244(b)(3) authorization from this court, the district court shall
transfer the document to this court pursuant to 28 U.S.C § 1631.
Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir.1996)(per curia).
Plainly, this is not the Petitioner’s first federal habeas corpus petition. That said, the United
States Supreme Court has held that a petitioner’s first habeas application challenging an
8
intervening new judgment does not constitute a successive petition within the meaning of 28
U.S.C. § 2244(b). Magwood v. Patterson, 130 S.Ct. 2788 (2010).
[C]ourts have not, however, construed “second or successive” to
encompass all § 2255 motions or habeas petitions that are
“numerically” second in the sense that they are literally the second
motion filed. In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006); see
also Slack v. McDaniel, 529 U.S. 473, 487-88, 120 S.Ct. 1595, 146
L.Ed.2d 542 (2000) (holding that second habeas petition raising
claims dismissed in previous “mixed” petition was not second or
successive); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45,
118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (holding that habeas
petition raising claim previously dismissed as premature was not
second or successive). In Bowen, this Court held that a state habeas
petitioner did not present a “second or successive” petition where
he filed a second petition raising an ineffective assistance of
counsel claim that he was barred from raising in his original
petition for habeas corpus. 436 F.3d at 705. The Bowen court
reasoned that “courts defining ‘second or successive’ generally
apply abuse of the writ decisions, including those decisions that
predated AEDPA.” Id. at 704. The court continued: “Under the
abuse of the writ doctrine, a numerically second petition is
‘second’ when it raises a claim that could have been raised in the
first petition but was not so raised, either due to deliberate
abandonment or inexcusable neglect.” Id. (citing McCleskey v.
Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)).
...
Other courts of appeals have applied similar principles and held
that § 2255 motions or petitions for habeas corpus were not
“second or successive” when the second action challenges a
judgment or portion of a judgment that arose as a result of a
previous successful action. See Hepburn v. Moore, 215 F.3d 1208,
1209 (11th Cir. 2000) (per curiam) (“Every circuit that has
addressed the issue has agreed that, under the AEDPA, when new
claims originate at resentencing, those claims may be brought in a
subsequent habeas petition without the necessity of obtaining
permission from the circuit court before filing the petition.”); In re
Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999) (section 2255 motion
was not “second or successive” when it raised claims that
originated at resentencing); Esposito v. United States, 135 F.3d
111, 113 (2d Cir.1997) (per curiam) (section 2255 motion
challenging resentencing was only second or successive “to the
extent that it challenge[d] the underlying conviction or seeks to
vacate any component of the original sentence that was not
9
amended” (quoting Galtieri v. United States, 128 F.3d 33, 38 (2d
Cir. 1997))); Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997)
(per curiam) (“We hold that a second habeas petition attacking for
the first time the constitutionality of a newly imposed sentence is
not a second or successive petition.”); United States v. Scott, 124
F.3d 1328, 1330 (10th Cir. 1997) (per curiam) (allowing § 2255
motion to challenge ineffective assistance of counsel at
resentencing); see also Dahler v. United States, 259 F.3d 763, 765
(7th Cir. 2001); United States v. Barrett, 178 F.3d 34, 43-44 (1st
Cir.1999) (noting that “decisions have created an exception ...
where the second petition challenges parts of the judgment that
arose as the result of the success of an earlier petition” and noting
that that exception did not apply); Luckett v. McDaniel, No. 9915044, 2000 WL 340124, at *1 (9th Cir. Mar.28, 2000)
(unpublished) (same). By contrast, no circuit that has addressed the
issue has held that a § 2255 motion or a habeas petition that
addresses an issue that originates at resentencing is a second or
successive petition.
Lang v. United States, 474 F.3d 348, 351-52 (6th Cir. 2007)(footnote omitted).
In habeas corpus claims one, two and seven, Petitioner argues that the trial court’s
imposition of consecutive sentences violated the Double Jeopardy Clause and that the trial court
should have considered his conduct to determine whether his convictions constituted allied
offenses of similar import.
Because these claims relate to Petitioner’s initial judgment of
conviction, and could have been raised in Petitioner’s first federal habeas corpus petition, the
Magistrate Judge RECOMMENDS that claims one and two and seven be TRANSFERRED to
the United States Court of Appeals for the Sixth Circuit for authorization for filing as successive.
MERITS
The remainder of Petitioner’s claims, i.e., habeas corpus claims three through six, relate
to Petitioner’s re-sentencing hearing, and could not have previously been raised in Petitioner’s
prior habeas corpus petition. As such, the Court will address these claims here. See Magwood v.
Patterson, 561 U.S. --, 130 S.Ct. 2788 (2010).
10
In claim three, Petitioner argues that he is currently incarcerated under a vacated sentence
that has not been reinstated by the trial court. Petition, PageID #9. He argues that at his resentencing hearing, that he should have been permitted to speak and challenge other aspects of
his sentence and that the trial court violated Ohio law. See Petitioner’s Reply. In claims four
and five, the Petitioner likewise argues that the trial court violated Ohio law at his re-sentencing
hearing. Petition, PageID 11-13, see Reply. In claim six, Petitioner asserts that he was denied
due process and equal protection because the trial court failed properly to apply O.R.C. §2929.19
at his re-sentencing hearing.
Although Petitioner attempts to couch his claims in terms of federal law, stating that he
was denied due process or equal protection by the trial court’s failure to observe State law, the
crux of all of these claims involves an issue regarding the alleged violation of state law. Such
claims do not provide Petitioner the relief he seeks. A federal court may review a state prisoner's
habeas petition only on the ground that the challenged confinement is in violation of the
Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not
issue a writ of habeas corpus “on the basis of a perceived error of state law.” Pulley v. Harris,
465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas
court does not function as an additional state appellate court reviewing state courts' decisions on
state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “ ‘[F]ederal courts
must defer to a state court's interpretation of its own rules of evidence and procedure’ ” in
considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th
Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief
be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such are not the
circumstances here.
11
Further, Petitioner never presented any federal issue to the state courts. See Exhibit 39 to
Motion to Dismiss. He therefore has waived the right to present any federal issue here. In order
to exhaust available state remedies, a petitioner must first fairly present the substance of his
federal habeas corpus claims to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971);
Anderson v.Harless, 459 U.S. 4, 6 (1982). “The state courts must be provided with a fair
opportunity to apply controlling legal principles to the facts bearing upon petitioner's
constitutional claims.” Sampson v. Love, 782 F.2d 53, 55 (6th Cir. 1986). Petitioner does not
fairly present his claim simply because the necessary facts supporting a federal constitutional
claim are present or because the constitutional claim appears self evident. Haggins v. Warden,
715 F.2d 1050, 1054 (6th Cir. 1983) (citing Harless, 459 U.S. at 6). Furthermore, “[a] petitioner
‘fairly presents' his claim to the state courts by citing a provision of the Constitution, federal
decisions employing constitutional analysis, or state decisions employing constitutional analysis
in similar fact patterns.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993) (citing Franklin
v. Rose, 811 F.2s 322, 326 (6th Cir. 1987)). Courts normally require more than a single broad
generalization that petitioner was denied a “fair trial” or “due process of law.” Franklin, 811
F.2d at 326; Petrucelli v. Coombe, 735 F.2d 684, 688 (6th Cir. 1984). Petitioner, however, need
not “cite book and verse on the federal constitution.” Picard, 404 U.S. at 277 (quoting
Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1960)). The Sixth Circuit has strictly
followed the requirement that petitioner fairly presented his federal constitutional claims to the
state courts as a precondition to federal habeas review. Weaver v. Foltz, 888 F.2d 1097, 1098
(6th Cir. 1989).
WHEREUPON, the Magistrate Judge RECOMMENDS that Respondent’s Motion to
Dismiss, Doc. No. 6, be GRANTED and that this action be DISMISSED.
12
It is FURTHER RECOMMENDED that Petitioner’s Motion for Summary Judgment,
Doc. No. 7, be DENIED, and that his request for injunctive relief, see Doc. No. 11, be DENIED,
as moot.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy
thereof. Fed.R.Civ.P. 72(b).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
of the right to appeal the decision of the District Court adopting the Report and
Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers,
Local 231 etc., 829 F.2d 1370 (6th Cir.1987); United States v. Walters, 638 F.2d 947 (6th
Cir.1981).
s/Mark R. Abel
United States Magistrate Judge
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