Griffin v. Warden Noble Correctional Institution
Filing
8
ORDER and REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Calvin Griffin It is RECOMMENDED that the petition for writ of habeas corpus conditionally be GRANTED on Petitioner's claim that he was denied his right t o counsel and that Petitioner be released subject to a re-trial within ninety (90) days. It is further RECOMMENDED that the remainder of Petitioner's claims be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED. Objections to R&R due by 4/7/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/21/16. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CALVIN GRIFFIN,
CASE NO. 2:14-CV-00857
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers
Petitioner,
v.
WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.
ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of
Writ, Petitioner’s Reply, and the exhibits of the parties.
For the reasons that follow, the
Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus conditionally be
GRANTED on Petitioner’s claim that he was denied his right to counsel and that Petitioner be
released subject to a re-trial within ninety (90) days.
The Magistrate Judge further
RECOMMENDS that the remainder of Petitioner’s claims be DISMISSED.
Petitioner’s request for an evidentiary hearing is DENIED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On November 9, 2011, Columbus police officers conducted a
traffic stop of a vehicle in which appellant was the driver and sole
occupant. Appellant was placed under arrest for failure to possess a
valid driver’s license, and the vehicle he was driving, which was
registered in someone else’s name, was impounded. An inventory
search of the vehicle led to the discovery of a loaded 9 mm
handgun and 24.19 grams of cocaine.
1
On January 30, 2012, appellant was indicted on one count of
carrying a concealed weapon, in violation of R.C. 2923.12, one
count of improperly handling a firearm in a motor vehicle, in
violation of R.C. 2923.16, one count of possession of cocaine, in
violation of R.C. 2925.11, and one count of having a weapon while
under disability, in violation of R.C. 2923.13.
The case came for trial before a jury beginning July 23, 2012.
Following the presentation of evidence, the jury returned verdicts
finding appellant guilty of the counts charging him with carrying a
concealed weapon, improper handling of a firearm in a motor
vehicle, and possession of cocaine. The trial court separately found
appellant guilty of Count 4 (having a weapon while under
disability), and the court sentenced appellant by entry filed August
10, 2012.
On appeal, appellant sets forth the following two assignments of
error for this court’s review:
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY REFUSING TO ALLOW
APPELLANT TO OBTAIN NEW COUNSEL WHEN
REQUESTED IN VIOLATION OF APPELLANT’S SIXTH
AMENDMENT RIGHTS.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO FILE A
MOTION TO SUPPRESS THE EVIDENCE ON HIS BEHALF.
State v. Griffin, No. 12AP-798, 2013 WL 6506888, at *1 (Ohio App. 10th Dist. Dec. 10, 2013).
On April 23, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State
v. Griffin, 138 Ohio St.3d 1470. Thereafter, Petitioner timely filed the instant petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that the trial court improperly refused
to appoint new counsel (claim one); that he was denied the effective assistance of counsel
because his attorney failed to file a motion to suppress evidence (claim two); and that he was
2
denied a fair trial (claim three). It is the position of the Respondent that Petitioner’s claims lack
merit or are procedurally defaulted.
Merits
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court’s review of state-court
determinations. The United State Supreme Court recently described AEDPA as “a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”
and emphasized that courts must not “lightly conclude that a State’s criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S.
86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings, and demands that state court decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §
2254(e) (1) provides:
In 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 to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
“Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)
3
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner
must show that the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established federal law”); 28 U.S.C. § 2254(d)(2) (a petitioner must show
that the state court relied on an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”). The United States Court of Appeals for the Sixth
Circuit recently explained these standards as follows:
A state court’s decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular . . .
case” or either unreasonably extends or
unreasonably refuses to extend a legal principle from Supreme
Court precedent to a new context. Id. at 407, 529 U.S. 362, 120
S.Ct. 1495, 146 L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
“In order for a federal court to find a state court’s application of [Supreme Court
precedent] unreasonable, . . .
[t]he state court’s application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,
(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. at 101
(“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
“ ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable
4
application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the
reasonableness of the state court’s analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
(“ ‘[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and not whether the state court considered
and discussed every angle of the evidence.’“ (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc))); see also Nicely v. Mills, 521 F. App’x 398, 403 (6th Cir. 2013)
(considering evidence in the state court record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of state court’s decision). Relatedly, in
evaluating the reasonableness of a state court’s ultimate legal conclusion under § 2254(d)(1), a
court must review the state court’s decision based solely on the record that was before it at the
time it rendered its decision. Pinholster, 563 U.S. at 180.
Put simply, “review under §
2254(d)(1) focuses on what a state court knew and did.” Id. at 1399.
Claim One
In claim one, Petitioner asserts that he was denied his right to counsel of choice and that
the trial court improperly refused to conduct a hearing on his request for the appointment of new
counsel. The state appellate court rejected Petitioner’s claim as follows:
[A]ppellant asserts the trial court erred in refusing his request to
obtain new counsel. By way of background, on the morning of the
first day of trial, prior to the jury being impaneled, defense counsel
informed the trial court that she believed appellant no longer
wanted her representation. Appellant cites the following portion of
the trial transcript involving a colloquy between defense counsel,
the trial court, and appellant:
[DEFENSE COUNSEL]: And also, my client—I don’t think he
wants me to represent him, but—
THE COURT: Mr. Griffin, do you want to put something on the
record?
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DEFENDANT GRIFFIN: Yes. I don’t think she’s working on my
behalf, sir, so I do want somebody else on it that I feel is—if I’m
going to put money on it, too, that they’re going to be working on
my behalf. And I don’t see anything that she’s doing for me. She’s
like lack of communication to me.
Since May 20th she said she was going to come see me, and to this
date the first day I ever seen her. She didn’t come down one time
to see me, so I’ve got to get somebody on my case that’s going to
work for me in my behalf and win this case. I don’t think she’s
good enough for me.
Thank you.
THE COURT: Well, the answer is no.
(Tr. 4–5.)
Appellant asserts the trial court failed to address his concerns,
arbitrarily refusing his request for new counsel and proceeding
with trial. Appellant argues that the trial court’s action violated his
right to counsel of choice under the Sixth Amendment.
In response, the state contends the record indicates that appellant,
although initially able to retain private counsel, was in fact
indigent. The state cites to appellant’s “Ex Parte Motion for
Investigative Fees,” filed with the trial court on May 14, 2012, and
the accompanying memorandum in support, in which appellant
represented he was unable to hire an investigator because he was
indigent. The state also notes that the trial court declared appellant
indigent and provided him with appointed counsel for purposes of
appeal.
In general, “[t]he right to counsel of one’s choice is an essential
element of the Sixth Amendment right to have the assistance of
counsel for one’s defense.” State v. Frazier, 8th Dist. No. 97178,
2012–Ohio–1198, ¶ 26, citing State v. Keenan, 8th Dist. No.
89554, 2008–Ohio–807. This includes the right, when a defendant
has the ability to retain his own attorney, to be represented by
counsel of choice. United States v. Gonzalez–Lopez, 548 U.S. 140,
144 (2006). However, the right to retained counsel of choice “is
not absolute, * * * and courts have ‘wide latitude in balancing the
right to counsel of choice against the needs of fairness and against
the demands of its calendar.’“ Frazier at ¶ 26, citing Gonzalez–
Lopez at 152. In this respect, a trial court’s “difficult responsibility
of assembling witnesses, lawyers and jurors for trial ‘counsels
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against continuances except for compelling reasons.’“ State v.
Howard, 5th Dist. No.2012CA00061, 2013–Ohio–2884, ¶ 40,
quoting Morris v. Slappy, 461 U.S. 1, 11 (1983). Accordingly,
“decisions relating to the substitution of counsel are within the
sound discretion of the trial court.” Frazier at ¶ 26, citing Wheat v.
United States, 486 U.S. 153, 159 (1988).
Further, “when the timing of a request for new counsel is an issue,
a trial court may make a determination as to whether the
appellant’s request for new counsel was made in bad faith.” Frazier
at ¶ 27, citing State v. Graves, 9th Dist. No. 98CA007029 (Dec.
15, 1999). It has been held that “[a] motion for new counsel made
on the day of trial ‘intimates such motion is made in bad faith for
the purposes of delay.’“ Id., quoting State v. Haberek, 47 Ohio
App.3d 35, 41 (8th Dist.1988).
The record on appeal in this case lends support to the state’s
contention that appellant was indigent at the time of trial. In his
motion for investigative fees, filed several months before trial, it
was represented by appellant that, although his “extended family *
* * retained Attorney Wonnell * * * Mr. Griffin is indigent, and
the family does not have money to retain an investigator.” As
noted by the state, at the time of trial appellant did not indicate he
had been in contact with (or that he had secured) new retained
counsel, nor did he request a continuance in order to hire a new
attorney of his choosing. As also noted by the state, the trial court
determined that appellant was indigent for purposes of appeal,
appointing counsel to represent him. Upon review, the record does
not indicate the trial court denied appellant the right to retained
counsel of choice; rather, in responding to appellant’s claimed
dissatisfaction with trial counsel, the court in essence was
addressing a request for new appointed counsel.
A defendant “bears the burden of demonstrating grounds for the
appointment of new counsel.” State v. Erwin, 10th Dist. No.
09AP–918, 2010–Ohio–3022, ¶ 8. Thus, “[i]f a ‘defendant alleges
facts which, if true, would require relief, the trial court must
inquire into the defendant’s complaint and make the inquiry part of
the record.’“ Id., quoting State v. Smith, 4th Dist. No. 98CA12
(Dec. 29, 1998). This inquiry “may be brief and minimal,” but
“must be made.” Id. However, “‘[e]ven that limited judicial duty
arises only if the allegations are sufficiently specific; vague or
general objections do not trigger the duty to investigate further.’“
Id., quoting Smith.
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In the instant case, appellant’s dissatisfaction with his present
counsel was stated in general terms. Specifically, appellant told the
trial court: “I don’t think she’s working on my behalf * * * I don’t
see anything that she’s doing for me.” (Tr. 5 .) While trial courts
have an obligation to make some inquiry into a defendant’s
dissatisfaction with counsel, reviewing courts require a defendant
to raise concerns about counsel “with sufficient specificity to
warrant further investigation.” State v. Washington, 1st Dist. No.
C–000754 (Aug. 17, 2001) (“A trial court, without more, does not
abuse its discretion in finding that a general allegation of
unhappiness with appointed counsel is so vague that it does not
require additional investigation”); State v. Hawkins, 8th Dist. No.
91930, 2009–Ohio–4368, ¶ 54 (Defendant’s statement to judge
that “he felt like his lawyers were ‘not going to fight for him to the
fullest extent’“ not sufficiently specific to trigger court’s duty to
inquire further).
Here, while the trial court did not conduct a lengthy inquiry, it
nonetheless permitted appellant to address the court and explain
why he was unhappy with his counsel. As noted, appellant’s
dissatisfaction with counsel was expressed in general terms. The
record on appeal, however, does not reflect that trial counsel was
unprepared to proceed with trial, nor does it suggest such a
breakdown in the attorney-client relationship that appellant failed
to receive adequate representation. In sum, appellant “did not
establish a complete breakdown in communications with counsel
or ‘good cause’ to substitute counsel.” State v. Williams, 99 Ohio
St.3d 439, 2003–Ohio–4164, ¶ 55. See also State v. Coleman, 2d
Dist. No. 19862, 2004–Ohio–1305, ¶ 25, citing State v. Gordon,
149 Ohio App.3d 237, 241, 2002–Ohio–2761 (1st Dist.) (“mere
hostility, tension and personal conflicts between attorney and client
do not constitute a total breakdown in communication if those
problems do not interfere with the preparation and presentation of
a defense”).
Moreover, appellant’s complaint regarding his counsel was not
made until the first day of trial, and therefore would have
necessitated a continuance of trial. While not entirely clear, the
record suggests this was the first time the trial court was made
aware of any dissatisfaction by appellant with counsel. Under Ohio
law, “the right to counsel must be balanced against the court’s
authority to control its docket, as well as its awareness that a
‘demand for counsel may be utilized as a way to delay the
proceedings or trifle with the court.’“ State v. Mizell, 1st Dist. No.
C–070750, 2008–Ohio–4907, ¶ 26, quoting State v. Crew, 8th
Dist. No. 86943, 2006–Ohio–4102, ¶ 17. Upon review, the trial
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court did not abuse its discretion in refusing to delay appellant’s
trial based upon his untimely, generalized complaints regarding
counsel. Accordingly, the first assignment of error is without merit
and is overruled.
State v. Griffin, 2013 WL 6506888, at *1-4.
The Sixth Amendment right to effective assistance of counsel includes the “right of a
defendant who does not require appointed counsel to choose who will represent him.” United
States v. Gonzalez–Lopez, 548 U.S. 140, 144 (2006) (citing Wheat v. United States, 486 U.S.
153, 159 (1988); Powell v. Alabama, 287 U.S. 45, 53 (1932)).
“[A] denial of this Sixth
Amendment right is a structural error not subject to harmless error analysis, but only when the
denial is unjustifiable.” Dixon v. Warden, S. Oh. Corr. Facility, 940 F.Supp. 2d 614, 625 (S.D.
Ohio Feb.11, 2013) (citing Gonzalez-Lopez, 548 U.S. at 148). However, a criminal defendant’s
right to the attorney of his choice is “circumscribed in several important respects.” Gonzalez–
Lopez, 548 U.S. at 144 (quoting Wheat v. United States, 486 U.S. at 159). Significantly, “the
right to counsel of choice does not extend to defendants who require counsel to be appointed for
them.” Gonzalez–Lopez, 548 U.S. at 151–52 (citations omitted).
In Morris v. Slappy, 461 U.S. 1 (1983), the Supreme Court held that Constitution does
not guarantee a criminal defendant’s right to a “meaningful attorney-client relationship.” Id. at
13. Slappy’s appointed attorney fell ill shortly before trial, and the trial court appointed new
counsel on Slappy’s behalf six days prior to the scheduled trial date. After the trial commenced,
Slappy expressed dissatisfaction with his new attorney, and requested a continuance until his
previously appointed counsel would be available to represent him. Defense counsel, however,
indicated that he was ready to proceed, and the court denied Slappy’s request. The Supreme
Court rejected Slappy’s claim that the trial court had unconstitutionally denied his request for a
continuance:
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Not every restriction on counsel’s time or opportunity to
investigate or to consult with his client or otherwise to prepare for
trial violates a defendant’s Sixth Amendment right to counsel. See
Chambers v. Maroney, 399 U.S. 42, 53–54, 90 S.Ct. 1975, 1982–
1983, 26 L.Ed.2d 419 (1970). Trial judges necessarily require a
great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors at
the same place at the same time, and this burden counsels against
continuances except for compelling reasons. Consequently, broad
discretion must be granted trial courts on matters of continuances;
only an unreasoning and arbitrary “insistence upon expeditiousness
in the face of a justifiable request for delay” violates the right to
the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589, 84
S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).
Id. at 11. The Supreme Court further noted that Slappy’s belated requests may not have been
made in good faith, but as a “transparent ploy for delay.” Id. at 13.
The United States Court of Appeals for the Sixth Circuit has held that an indigent
defendant “must show good cause, such as a ‘conflict of interest, a complete breakdown in
communication or an irreconcilable conflict with his attorney’” to substitute counsel during trial.
Henness v. Bagley, 644 F.3d 308, 321 (6th Cir. 2011) (quoting Sullivan, 431 F.3d at 979–80).
“A complete breakdown in communication occurs when there is a severe and pervasive conflict
between the defendant and his attorney, or evidence of minimal contact with the attorney
rendering meaningful communication impossible.” Smith v. Bonner, 104 F.Supp.3d 1252, 1272
(D. Colo. 2015) (citing United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). The Court
considers four factors when reviewing a trial court’s denial of a motion to substitute counsel:
(1) the timeliness of the motion, (2) the adequacy of the court’s
inquiry into the matter, (3) the extent of the conflict between
the attorney and client and whether it was so great that it
resulted in a total lack of communication preventing an
adequate defense, and (4) the balancing of these factors with
the public’s interest in the prompt and efficient administration
of justice.
10
United States v. Vasquez, 560 F.3d 461, 466 (6th Cir. 2009) (quoting United States v. Mach, 258
F.3d 548, 556 (6th Cir. 2001)). “If the defendant’s motion would ‘necessitate a last-minute
continuance, the trial judge’s actions are entitled to extraordinary deference.’” Henness, 644
F.3d at 2011 (citing Vasquez, at 467). In Henness, the Sixth Circuit rejected Henness’s claim
that the trial court had unreasonably applied constitutional law in denying counsel’s motion to
withdraw, noting that the request did not occur until the guilt phase of the trial, the trial court
inquired into the matter, and most of the difficulty resulted from Henness’s own refusal to
cooperate with counsel. Id. at 321-22.
In United States v. Illes, 906 F.2d 1122 (6th Cir. 1990),1 the defendant claimed that he
had been denied his Sixth Amendment right to counsel because the trial court failed to conduct
an inquiry into his expressed dissatisfaction with appointed counsel. Id. at 130. The Sixth
Circuit held as follows:
It is hornbook law that “[w]hen an indigent defendant makes a
timely and good faith motion requesting that appointed counsel be
discharged and new counsel appointed, the trial court clearly has a
responsibility to determine the reasons for defendant’s
dissatisfaction with his current counsel.” LaFave and Israel,
Criminal Procedure, § 11.4 at 36 (1984) (footnote omitted); see
also McMahon v. Fulcomer, 821 F.2d 934, 942 (3rd Cir. 1987);
Thomas v. Wainwright, 767 F.2d 738, 741 (11th Cir. 1985); United
States v. Welty, 674 F.2d 185, 187 (3rd Cir. 1982); McKee v.
Harris, 649 F.2d 927, 933–34 (2nd Cir. 1981); United States v.
Williams, 594 F.2d 1258, 1260–61 (9th Cir. 1979) (per curiam);
Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). The right
to counsel of choice, unlike the right to counsel, however, is not
absolute. An indigent defendant has no right to have a particular
attorney represent him and therefore must demonstrate “good
cause” to warrant substitution of counsel. See, e.g., United States v.
Gallop, *1131 838 F.2d 105, 108 (4th Cir. 1988); United States v.
Allen, 789 F.2d 90, 92 (1st Cir. 1986); United States v. Young, 482
F.2d 993, 995 (5th Cir. 1973); see also Nerison v. Solem, 715 F.2d
415, 418 (8th Cir. 1983) (a defendant must show “justifiable
1
Illes arose on direct appeal, and did not involve a § 2254 proceedings.
11
dissatisfaction” with his appointed counsel to warrant substitution
of counsel).
Id. at 1130 (footnotes omitted). The Sixth Circuit rejected Iles’ claim, however, because he had
failed to make his dissatisfaction with counsel known to the court. Id. at 1131.
The Sixth Circuit again addressed the issue in Benitez v. United States, 521 F.3d 625 (6th
Cir. 2008). Benitez filed a motion to vacate under 28 U.S.C. § 2255, claiming, inter alia, that he
had been denied his right to counsel of choice in violation of the Sixth Amendment because the
court failed to inquire into his expressed dissatisfaction with counsel. Id. at 630-31. The Sixth
Circuit held that where a criminal defendant alerts the court that he desires a substitution of
counsel, the “court is obligated to inquire into the defendant’s complaint and determine whether
there is good cause for the substitution,” balancing “ ‘the accused’s right to counsel of his choice
and the public’s interest in the prompt and efficient administration of justice.’“ Id. at 632
(quoting Illes, at 1131; United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)). “Appellate
courts reviewing the denial of such a motion ‘generally consider the timeliness of the motion; the
adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict between
the attorney and client was so great that it resulted in a total lack of communication preventing
an adequate defense.’“ Id. (quoting Iles, 906 F.2d at 1130 n.8). The Sixth Circuit concluded that
the district court’s failure to inquire into the source and nature of Benitez’s dissatisfaction with
counsel violated his Sixth Amendment right to counsel. Id. at 635-36. Benitez, however, was
represented by privately retained counsel. Id. at 631. This case presents a different issue.
In this case, the trial judge conducted virtually no inquiry. At the time of trial, Petitioner
had retained his attorney. On appeal, the Government offered a post hac rationale for the lack of
inquiry by pointing out that the Petitioner was in fact indigent and was therefore not entitled to
the attorney of his choice. (See State’s Brief to Court of Appeals, PAGEID # 162.) The state
12
appellate court concluded that “the record does not indicate the trial court denied appellant the
right to retained counsel of his choice; rather, in responding to [Petitioner’s] claimed
dissatisfaction with trial counsel, the court in essence was addressing a request for new appointed
counsel.” State v. Griffin, 2013 WL 6506888 at *3.2
As the court of appeals found, and the
record bears out, Petitioner was indigent and any new attorney, in all likelihood, would have
been appointed.
Under the terms of 28 U.S.C. § 2254(d)(1), this Court may only grant federal habeas
corpus relief where the decision of the state appellate court contravened or unreasonably applied
clearly established federal law of the United States Supreme Court. The issue thus becomes
whether the Supreme Court requires trial courts to inquire of indigent defendants before
determining whether to grant or deny a request for new counsel. Clearly established federal law
refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of
the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v.
Taylor, 529 U.S. at 412). Other courts to address the issue have held that a trial court’s failure to
inquire into an indigent defendant’s request for substitution of counsel does not warrant relief
under 28 U.S.C. § 2254(d)(1) because the United States Supreme Court has not held that a trial
court has the duty to make such inquiry.
For the purposes of AEDPA . . . the clearly established law does
not indicate that the trial court had a duty to conduct a good cause
inquiry before determining whether to grant or deny [a] request for
new counsel. Indeed, the Supreme Court has held that the Sixth
Amendment “guarantees defendants in criminal cases the right to
adequate representation, but those who do not have the means to
2
The Court notes that the record is not at all clear that the trial judge knew Petitioner was
indigent at the time he denied the request by saying simply that “the answer is no.” Petitioner, in
fact, that stated “if I am going to put money on it, too, that they’re going to be working on my
behalf.” This statement implies that Petitioner wanted to retain someone else. The point is,
these matters could have been addressed if trial court had simply inquired.
13
hire their own lawyers have no cognizable complaint so long as
they are adequately represented by attorneys appointed by the
courts.” Caplin & Drysdale, 491 U.S. at 624, 109 S.Ct. 2646.
Brooks, therefore, had a right to be represented by the counsel of
his choice only if he could afford to hire that counsel, or if that
counsel was willing to represent him regardless of his inability to
pay. Here, Brooks made no mention of having retained or planning
to retain counsel on his own. Instead, he requested that his court
appointed lawyer be replaced. Given these facts, the new counsel
Brooks sought would have been, in all likelihood, court appointed.
To the extent that Brooks would invoke Caplin because his
representation was inadequate, we are unpersuaded. Nothing
before us suggests that Brooks’s counsel did not represent him
“adequately.” Id.
Brooks v. Lafler, 454 F. App’x 449, unpublished, 2012 WL 10923, at *3 (6th Cir. Jan. 4, 2012)
(declining to grant habeas relief on Petitioner’s claim that the trial court violated his violated his
Sixth Amendment right to counsel when it denied his request for new counsel without a
sufficient inquiry into good cause); see also Peterson v. Smith, 510 F. App’x 356, unpublished,
2013 WL 49565, at *10 (6th Cir. 2013) (trial court’s failure to conduct inquiry into defendant’s
request for substitution of counsel does not provide basis for relief under § 2254(d)(1), because
no such inquiry is required by clearly established Supreme Court precedent) (citing Brooks v.
Lafler, 454 F. App’x 449, 452 (6th Cir.2012) (per curiam); James v. Brigano, 470 F.3d 636, 643
(6th Cir. 2006) (reversing a grant of relief because the inquiry requirement did not constitute
clearly established Federal law); Smith v. Bonner, 104 F.Supp.3d 1252, 1271 (D. Co. May 12,
2015) (“To date, the Supreme Court has not articulated a standard for deciding a Sixth
Amendment claim based on a habeas petitioner’s allegation the trial court denied his request for
substitute counsel.”) (citing Peterson v. Smith, 510 F. App’x 356, 2013 WL 49565, at *10 (6th
Cir. Jan. 3, 2013)); Cantoni v. Leclair, No. 12 Civ 4353, 2015 WL 518226, at *2 (S.D. N.Y. Feb.
9, 2015) (“[D]efendants who rely on court-appointed counsel are entitled to effective counsel, but
they ‘do not have a veto over who is appointed to defend them, provided that appointed
14
counsel’s representation is adequate.’”) (citing Felder v. Goord, 564 F. Supp. 2d 201, 220
(S.D.N.Y. 2008); Soltero v. Kuhlman, No. 99CV10765, 2000 WL 1781657, at *3 (S.D. N.Y.
Dec. 4, 2000) (“Absent a claim of ineffective assistance, the state court’s decision to deny
petitioner’s motion to substitute counsel conflicts neither with any particular Supreme Court
decision nor with any general principle of Supreme Court jurisprudence.”).
Courts that have considered the issue have concluded that “[u]nless
[a defendant] can establish an ineffective assistance claim under
Strickland v. Washington . . . any error in the [trial] court’s
disposition of [the defendant’s] motion for appointment of
substitute counsel is harmless.” United States v. Graham, 91 F.3d
213, 217 (D.C.Cir. 1996) (citing Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also, United
States v. Calderon, 127 F.2d 1314, 1343 (11th Cir. 1997); United
States v. Zillges, 978 F.2d 369, 372–73 (7th Cir. 1992); Bowie v.
Renico, No. 00–10013, 2002 WL 31749162, at *11 (E.D. Mich.
Nov.6, 2002) (Lawson, J.); Stephens v. Costello, 55 F.Supp.2d 163,
172 (W.D.N.Y.1999). As the Supreme Court has explained, “those
who do not have the means to hire their own lawyers have no
cognizable complaint so long as they are adequately represented by
attorneys appointed by the courts.” Caplin & Drysdale, Chartered
v. United States, 491 U.S. 617, 624 (1989).
James v. Lafler, No. 2:09-cv-10929, 2010 WL 3702629, at *16 (E.D. Mich. Aug. 3, 2010).
Here, the state appellate court found that Petitioner was indigent, and unable to retain his
own attorney. The appellate court also found that the record did not indicate that counsel was
unprepared or that Petitioner received inadequate representation. Petitioner has failed to rebut
the presumption of correctness of these factual findings. 28 U.S.C. § 2254(e). While the Court
finds it troubling that the trial court failed to further inquire into Petitioner’s complaint that he
had not communicated with his attorney prior to his first appearance in court, in view of the lack
of authority from the Supreme Court mandating such inquiry upon an indigent’s request for
substitution of counsel, this Court’s authority to grant relief is constrained under the dictates of
28 U.S.C. § 2254(d)(1).
15
Habeas relief also may be warranted under 28 U.S.C. § 2254(d)(2), however, where the
state appellate court’s decision was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding. “[A] state-court factual determination is
not unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Woods v. Allen, 558 U.S. 290, 301 (2010) (citing Williams v.
Taylor, 529 U.S. at 411). “[E]ven if ‘[r]easonable minds reviewing the record might disagree’
about the finding in question, ‘on habeas review that does not suffice to supersede the trial
court’s . . . determination.’” Id. (citing Rice v. Collins, 546 U.S. 333, 341-42 (2005)).
Under what circumstances, then, can a habeas petitioner obtain
relief under § 2254(d)(2)? Federal courts have struggled with this
question, especially in the context of the application of deference
to mixed questions of law and fact. Section 2254(d)(2), on the one
hand, envisions federal review of a state court’s “unreasonable
determination of the facts.” On the other hand, § 2254(e) (1)
dictates that “a determination of a factual issue made by a State
court shall be presumed to be correct.” The Supreme Court has
declined to clarify the relationship between these two provisions,
and it has “explicitly left open the question whether § 2254(e) (1)
applies in every case presenting a challenge under § 2254(d)(2).”
Wood v. Allen, 558 U.S. 290, 299, 130 S.Ct. 841, 175 L.Ed.2d 738
(2010); accord Rice v. Collins, 546 U.S. 333, 339, 126 S.Ct. 969,
163 L.Ed.2d 824 (2006). Other circuits have also declined to
resolve the issue. See, e.g., Teti v. Bender, 507 F.3d 50, 58 (1st Cir.
2007).
McMullan v. Booker, 761 F.3d 662, 670 (6th Cir. 2014) (declining to resolve the issue) (footnote
omitted).3
“To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was ‘based on’ that unreasonable
3
In Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007), the Court “assumed that a petitioner
satisfies § 2254(d)(2) by showing that a ‘state court’s presumptively correct factual findings are
rebutted by ‘clear and convincing evidence’ and do not have support in the record.’“ McMullan,
761 F.3d at 670 n.3.
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determination.” Neal v. Wolfenbarger, 57 F. Supp. 3d 804, 812 (E.D. Mich. 2014) (citing Rice v.
White, 660 F.3d 242, 250 (6th Cir. 2012)). “Where a state court decision is based upon an
unreasonable determination of the facts under § 2254(d)(2), the Court’s review of the underlying
claim is then ‘unencumbered by the deference the AEDPA normally requires.’“ Id. (quoting
Rice, 660 F.3d at 251 (quoting Panetti v. Quarterman, 551 U.S. 930, 948 (2007)).
[Section] 2254(d)(2) requires that we accord the state trial court
substantial deference. If “‘[r]easonable minds reviewing the record
might disagree’ about the finding in question, ‘on habeas review
that does not suffice to supersede the trial court’s . . .
determination.’” Ibid. (quoting Rice v. Collins, 546 U.S. 333, 341–
342, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). As we have also
observed, however, “[e]ven in the context of federal habeas,
deference does not imply abandonment or abdication of judicial
review,” and “does not by definition preclude relief.” Miller–El v.
Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003).
Brumfield v. Cain, -- U.S. --, --, 135 S.Ct. 2269. 2277 (2015).
Here, the record reflects that on the morning of the first day of trial, prior to the jury
being impaneled, defense counsel informed the trial court that she believed that the petitioner no
longer wanted her representation. Petitioner stated that he had seen his attorney for the first time
on that date. He wanted an attorney appointed who would work on his behalf. Nonetheless, on
these facts, the appellate court denied relief, in part, by concluding that Petitioner had failed to
state his complaint with sufficient specificity to warrant further investigation, and the record did
not suggest a breakdown in the attorney-client relationship such that Petitioner could not have
received adequate representation. In making this determination, the state appellate court only
recounted Petitioner’s statements that “I don’t think she’s working on my behalf,” and “I don’t
see anything she’s doing for me.” Griffin, 2013 WL 6506888, at *3. The court did not address
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Petitioner’s assertions that there had been a total lack of communication, his attorney had never
come to see him at the jail, and that the first day of trial was the first day he had ever seen her.
This Court concludes that these factual determinations are not reasonable in light of the
evidence presented. The Petitioner appears to have alerted the trial court to his concern with
appointed counsel – and his inability to communicate with her -- at the earliest opportunity he
had to do so, that being when he was brought before the trial court. Further, the nature of
Petitioner’s complaint, namely that he had been unable to consult with his attorney prior to the
first day of trial, suggests the strongest type of breakdown in communication that would prohibit
adequate representation.4
This Court concludes, therefore, that the state appellate court’s
determination that “the trial court did not abuse its discretion in refusing to delay appellant’s trial
based upon his untimely, generalized complaints regarding counsel” State v. Griffin, 2013 WL
65068888, at *4, is based on an unreasonable determination of the facts in light of the evidence
presented.
The Magistrate Judge therefore RECOMMENDS that the petition for a writ of habeas
corpus conditionally be granted on Petitioner’s claim that he was denied his right to counsel, and
that Petitioner be released subject to the State instituting a re-trial within ninety (90) days.
Claim Two
In claim two, Petitioner asserts that he was denied the effective assistance of counsel
because his attorney failed to file a motion to suppress evidence. The state appellate court
denied this claim as follows:
[A]ppellant contends he was denied effective assistance of counsel
because his trial counsel failed to file a motion to suppress
evidence. Appellant argues that evidence of the cocaine and
4
Indeed, the record reveals that Petitioner’s attorney repeatedly referred to him as “Calvin
Klein.” (See Transcript, at p. 14, PAGEID # 225.)
18
weapon discovered during the inventory search of the vehicle
should have been suppressed, and that defense counsel was
ineffective in failing to file a suppression motion prior to trial.
Appellant cites trial testimony that no usable prints were recovered
from the bag of cocaine found in the vehicle; further, that the
handgun was tested for DNA and compared with appellant’s DNA,
indicating a DNA mixture of at least three individuals. While
appellant acknowledges trial testimony that he could not be
excluded as a contributor to the mixture, [FN1] he argues it is
possible his DNA was not among the DNA found due to the lack
of a definite match.
FN1. At trial, a DNA analyst testified that appellant’s “DNA
profile was present in the DNA mixture, and his profile * * * could
not be excluded as being a contributor to that mixture.” (Tr. 131–
32.)
In response, the state maintains appellant does not claim the
evidence was illegally obtained, and that his challenge goes to the
weight to be given the evidence, not its admissibility. The state
argues appellant cannot demonstrate ineffective assistance because
he cannot show the filing of a motion to suppress would have been
meritorious.
In order to establish ineffective assistance of counsel based upon
failure to file a motion to suppress, a defendant “must prove that
there was a basis to suppress the evidence in question.” State v.
Brown, 115 Ohio St.3d 55, 2007–Ohio–4837, ¶ 65, citing State v.
Adams, 103 Ohio St.3d 508, 2004–Ohio–5845, ¶ 35. See also State
v. Gibson, 69 Ohio App.2d 91, 95 (8th Dist.1980) (“Where the
record contains no evidence which would justify the filing of a
motion to suppress, the appellant has not met his burden of proving
that his attorney violated an essential duty by failing to file the
motion”).
In the instant case, appellant points to nothing in the record
indicating there was a basis to challenge the inventory search.
State v. Smith, 10th Dist. No. 08AP–420, 2008–Ohio–6520, ¶ 18.
At trial, police officers testified that the vehicle was impounded
because appellant, who was the sole occupant of the vehicle, did
not have a driver’s license, i.e., there was nobody else to drive the
vehicle. According to the testimony presented, after the vehicle
was impounded an inventory search was performed consistent with
established procedures at which time the items at issue were
discovered. A valid inventory search is an exception to the warrant
requirement, and in Ohio “a standard inventory search of a
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lawfully impounded automobile * * * is permissible.” State v.
Nields, 93 Ohio St.3d 6, 27 (2001), citing State v. Robinson, 58
Ohio St.2d 478 (1979), syllabus. [FN2]
FN2. In general, police inventory search procedures were
developed “in response to three distinct needs: the protection of the
owner’s property while it remains in police custody, * * * the
protection [of] the police against claims or disputes over lost or
stolen property, * * * and the protection of the police from
potential danger. South Dakota v. Opperman, 428 U.S. 364, 369
(1976).
Here, there is no showing that the search performed did not comply
with applicable police procedures. Because a reasonable attorney
could have concluded that the search was a valid inventory search,
appellant has not demonstrated that trial counsel was ineffective in
failing to challenge the basis of the search. See State v. Woodard,
11th Dist. No.2009–A–0047, 2010–Ohio–2949, ¶ 35 (trial counsel
not ineffective for failing to file motion to suppress that would
have been futile based upon established case law).
Accordingly, the second assignment of error is without merit and is
overruled.
State v. Griffin, 2013 WL 650888, at *4-5.
The right to counsel guaranteed by the Sixth Amendment to the U.S. Constitution is the
“right to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
To prevail on a complaint of ineffective assistance of counsel, a defendant must meet the twoprong Strickland test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Id. at 687. The Supreme Court emphasized that “[j]udicial scrutiny of counsel’s performance
must be highly deferential.”
Id. at 689.
Put plainly, “[a] court must indulge a strong
20
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. . . .” Id. Moreover, “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 692. Rather, a defendant must demonstrate prejudice to
prevail on a claim of ineffective assistance of counsel. Id. at 693. To do so, a defendant must
establish that a reasonable probability exists that, but for counsel’s errors, the result of the
proceedings would have been different. Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Because a defendant must satisfy both
prongs of the Strickland test to demonstrate ineffective assistance of counsel, should the court
determine that he or she has failed to satisfy one prong, it need not consider the other. Id. at 697.
Where the petitioner asserts that his attorney performed in a constitutionally ineffective manner
in failing to litigate a Fourth Amendment claim, he must establish that his “‘Fourth Amendment
claim is meritorious and that there is a reasonable probability that the verdict would have been
different absent the excludable evidence in order to demonstrate actual prejudice.’” Henness v.
Bagley, 644 F.3d 308, 317-18 (6th Cir. 2011) (quoting Kimmelman v. Morrison, 477 U.S. 365,
375 (1986).
“It is settled law that the police may conduct an inventory search of an automobile that is
being impounded without running afoul of the Fourth Amendment.” United States v. Jackson,
682 F.3d 448, 455 (6th Cir. 2012) (citing United States v. Smith, 510 F.3d 641, 650 (6th Cir.
2007)). “Vehicle inventory searches are an exception to the Fourth Amendment’s probable
cause requirement and are valid if conducted in accordance with standard police procedures.”
United States v. Ballard, 432 F. App’x 553, 556 (6th Cir. 2011) (citing Colorado v. Bertine, 479
U.S. at at 371–72; United States v. Harvey, 16 F.3d 109, 112 (6th Cir. 1994)). Inventory
21
searches “ ‘serve to protect an owner’s property while it is in the custody of the police, to insure
against claims of lost, stolen, or vandalized property, and to guard the police from danger.’”
United States v. Smith, 510 F.3d 641, 650–51 (6th Cir. 2007) (quoting United States v. Lumpkin,
159 F.3d 983, 987 (6th Cir. 1998) (citing Bertine)). “An inventory search must proceed pursuant
to ‘standardized criteria’ or ‘established routine’ in order to protect against the use of inventory
searches as ‘a ruse for a general rummaging in order to discover incriminating evidence.’”
United States v. Thompson-Bey, No. 3:09-cr-64, 2010 WL 2711105, at *9 (E.D. Tenn. Jan. 12,
2010) (citing Florida v. Wells, 495 U.S. 1, 4 (1990)). The “procedures may be written, but
established unwritten procedures are also sufficient.” United States v. Agofsky, 20 F.3d 866, 873
(8th Cir. 1994) (citing United States v. Lowe, 9 F.ed 43, 46 (1993) (cert. denied, 510 U.S. 1181
(1994). An officer’s suspicion of contraband will not defeat an otherwise proper inventory
search. United States v. Smith, 510 F.3d at 651 (6th Cir. 2007); Lumpkin, 159 F.3d at 987.
Police may exercise their discretion so long as it is exercised according to standard criteria and
not on suspicion of evidence of criminal activity. Hockenberry, 730 F.3d at 658 (citing Jackson,
682 F.3d at 454 (citations omitted) (internal quotation marks omitted); United States v. Kimes,
246 F.3d 800, 805 (6th Cir. 2001).
Here, the state appellate court found that police impounded the vehicle based upon
Petitioner’s valid arrest and because nobody else was available to drive the vehicle. They
thereafter conducted an inventory search of the vehicle pursuant to standard established
procedure. Petitioner does not dispute these findings, nor has he rebutted the presumption of
correctness afforded to the factual findings of the state appellate court. 28 U.S.C. § 2254(e).
Under these circumstances, a motion to suppress evidence obtained by police pursuant to a valid
inventory search of the vehicle for its impoundment could not have succeeded.
22
Petitioner has failed to establish the denial of the effective assistance of counsel based on
his attorney’s failure to file a motion to suppress evidence.
Claim Three
In claim three, Petitioner asserts generally that he was denied a “fundamentally fair trial,”
in violation of his “right to due process and equal protection of law as guaranteed him in the 4th,
5th, 6th, and 14th Amendments to the U.S. Constitution.” (ECF No. 1, PageID# 8.) Petitioner
fails to provide any further basis for such claim, aside from indicating that it “occurred after
appeal process completed.” (PageID# 9.) This Court is unable to determine the nature of this
claim.
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts
provides that the Petitioner must specify the nature of his grounds for relief and state the facts in
support of each ground. Dismissal under Habeas Rule 2(c) is appropriate in cases where it is
impossible to determine from the petitioner’s pleadings the exact errors of fact or law raised for
adjudication. See Rice v. Warden, No. 1:14-cv-732, 2015 WL 5299421, at *4 (S.D. Ohio Sept. 9,
2015) (dismissal under Rule 2(c) appropriate where pleadings contain unintelligible and
conclusory allegations and statements) (citations omitted); Accord v. Warden, Lebanon Corr.
Inst., No. 2:12-cv-355, 2013 WL 228027, at *3 (S.D. Ohio Jan. 22, 2013) (while the court
liberally construes a pro se prisoner’s pleadings, it is not required to “conjure allegations” on the
petitioner’s behalf) (citations omitted)).
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that the petition for a writ of habeas
corpus conditionally be granted on claim one, and that Petitioner be released subject to the State
23
instituting a re-trial within ninety (90) days. The Magistrate Judge further RECOMMENDS
that the remainder of Petitioner’s claims be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b) (1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
__s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
Date: March 21, 2016
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