Holland v. Warden, Samuel A. Tambi

Filing 11

REPORT AND RECOMMENDATIONS re 3 Petition for Writ of Habeas Corpus filed by Brian E. Holland. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 10/16/2015. Signed by Magistrate Judge Norah McCann King on 9/29/2015. (pes)(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
BRIAN E. HOLLAND,
Petitioner,
Case No. 2:14-cv-1460
Judge Economus
Magistrate Judge King

v.
WARDEN, SAMUEL A. TAMBI,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, ECF No. 3, Respondent’s Return
of Writ, ECF No. 6, Petitioner’s Traverse, ECF No. 10, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
This case arose on November 6, 2010, when Deputy Robert Barr
of the Licking County Sheriff's Office was on routine patrol.
Around 12:16 p.m., Barr was dispatched to an address on Stoddens
Bridge Road for a report of a vehicle parked in a wooded area,
partially covered by a tarp. Barr described the scene as wooded and
rural, between Stoddens Bridge Road and the Licking River. He
immediately spotted a vehicle parked off the road, in the woods on
the embankment near the river, partially covered by a camouflage
tarp.
Barr soon observed two males come up the embankment, followed
soon by another male. At trial, he testified he saw “three heads,
bobbing along” on the other side of the embankment. The two
males approached and Barr asked them where the third had gone;
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they replied he was on his way. Barr noticed a strong chemical
odor coming from the direction of the men. He asked them what
they were doing and they replied they were fishing, but they didn't
have any equipment or fishing licenses. The third man now
approached, identified by Barr at trial as appellant. Barr noticed
appellant had a bleeding cut on his finger.
Barr asked all three individuals for I.D., which only appellant was
able to produce. The other two provided names and dates of birth
and are identified in the record as Nard and Stevens.
Appellant asked if he could get a napkin or something to cover the
cut. Barr assented and appellant pulled the camouflage cover off to
look inside the car for something to cover the cut. Appellant told
Barr the vehicle belonged to his girlfriend and that he had
borrowed it to drive to the scene.
Once backup officers arrived on the scene, the three men were
separated and questioned; Barr testified all three had different
stories about what they were doing at the river. Initially, appellant
told Barr he drove to the river because he had a fight with his
girlfriend.
Barr took a closer look at the vehicle. He smelled a strong
chemical odor near the vehicle and observed what he believed to
be a meth lab: a gas can covered with “white icing,” later
determined to be frost, sitting on the ground. He also saw a
Mountain Dew soda bottle with a hose coming out of it. Barr
photographed the evidence he observed and the photos were
entered into evidence at trial.
Boerstler Testifies to Elements of a Meth Lab
Barr called Detective Boerstler, a drug trafficking investigator, to
the scene. Boerstler is trained in investigation of meth labs and the
resulting officer safety issues due to the volatility of chemicals
involved. Boerstler testified to the steps involved in manufacturing
methamphetamine and described some of the ingredients needed,
which include pseudoephedrine pills, starting fluid, ether, coffee
filters, anhydrous ammonia, camp fuel, containers and tubing, and
lithium batteries. He noted there are hundreds of methods of
manufacturing methamphetamine, and it may be “thrown together”
in a 2–liter bottle of soda.
The process of cooking meth was described in general terms at
trial. Pseudoephedrine pills must be broken down and crushed into
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powder, then mixed with a solvent to extract the pseudoephedrine.
Lithium camera batteries must be peeled with a utensil, allowing
the lithium to react with the solvent in the anhydrous ammonia.
The extracted ephedrine is collected in a coffee filter, solvent is
added, and “meth oil” comes to the top. A hydrochloric gas
generator is used to extract the meth from the oil, which may be as
rudimentary as a soda bottle with tubing, salt, and sulfuric acid
such as drain cleaner. The tubing is placed into the vessel
containing the meth oil to turn the liquid into a solid, which is the
finished product.
Evidence Found at the Scene
Boerstler described his observations at the scene on the Licking
River in terms of his experience with the manufacture of
methamphetamine. He observed the vehicle partially hidden in the
woods and noticed the odor of ether coming from its trunk. He
observed the 20–ounce Mountain Dew soda bottle in the grassy
area off the trail, and concluded it was a gas generator because it
was “off gassing,” or producing hydrochloric gas as he watched.
He testified there is no purpose for this process other than the
manufacture (“cooking”) of methamphetamine.
Further down the trail Boerstler found black and blue bags and two
plastic containers, from which he immediately noticed the odor of
anhydrous ammonia emanating. The black and blue bags were
partially buried under grass and hidden under the bank. Boerstler
searched for a tank of anhydrous ammonia and discovered a twogallon gas tank with a frost line on it. The frost line indicated the
presence of anhydrous because the substance is 28 degrees below
zero when it comes out of a tank. This gas tank was found just
west of the covered vehicle, and its lid was in the trunk.
The plastic containers and the gas tank tested positive for the
presence of anhydrous ammonia. The bigger plastic container
found on the riverbank contained an “active cook:” inside were
pseudoephedrine pills, solvent, anhydrous ammonia, and peeled
lithium batteries. Boerstler detected a slight pinkish color, typical
of pseudoephedrine pills, and the lithium strips were bubbling. The
other container was topped with a coffee filter containing white
residue; on the bottom was a clear liquid which tested positive for
anhydrous ammonia. Drain cleaner was found in one of the plastic
bags, which may be used with salt to form a gas generator. The
black bag contained pliers, salt, starting fluid, and a pair of gloves.

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Boerstler obtained consent to search appellant's vehicle and in the
trunk discovered a plastic bag containing peeled lithium batteries
and punctured cans of ether from which the liquid had already
been removed. Boerstler testified that punctured ether cans are
commonly found at meth lab sites because punctured cans enable
meth cooks to pour out the liquid instead of spraying it. The nozzle
of the 2–gallon gas can was also in the trunk and tested positive for
anhydrous.
Boerstler concluded the only purpose for this accumulation of
items and chemicals is the manufacture of methamphetamine. He
explained that he did not find the finished product at the scene
because it was still being cooked when the trio was apprehended.
The Investigation and Appellant's Changing Stories
A witness from a CVS pharmacy testified appellant bought 48
pseudoephedrine pills on October 29, 2010, based upon the store's
pseudoephedrine log. Appellant was identified in the log by date of
birth and the given address of 22 Parker Avenue, Newark.
Appellant initially told Boerstler Nard and Stevens called him
because they needed a ride and he claimed not to know anything
about the meth cook. When asked how the ether cans got into the
trunk, appellant said Nard had placed a bag of trash there to be
thrown away. Appellant agreed he smelled the ether but said he
didn't see anything unusual.
Boerstler then interviewed Nard, Stevens, and Donita Blackstone,
appellant's girlfriend. After speaking with them, he returned to
appellant, who now apologized and said he didn't want to snitch,
but Nard had promised him $50 for a ride. Appellant didn't know
about the meth cook until he arrived. He admitted the trio was not
fishing, and admitted that he personally placed the ether cans in the
trunk of the vehicle. He further explained he had covered the car
with the tarp at Nard's request so it couldn't be seen from the road.
Appellant denied purchasing pseudoephedrine pills but admitted he
had used meth in the past. Appellant's given address was 22 Parker
Avenue, Newark.
At trial, appellant testified and claimed total ignorance. He said
Nard asked for a ride, promising to pay him $50. Appellant lives a
few minutes away from the Stoddens Bridge Road location and
arrived to find Nard with Stevens, whom appellant was also
familiar with. Appellant said he pulled in to the area for vehicle
access and Nard approached with a camouflage blanket, stating “it
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wasn't done yet.” Appellant said it was Nard who covered the car
and denied bringing any meth ingredients to the scene. Nard told
him they would need another 10 or 15 minutes, so appellant
walked down the path along the river looking for arrowheads or
rocks and cut his finger when he attempted to pull a tire out of the
riverbed. He testified he didn't ask Nard and Stevens what they
were up to because he assumed they were smoking crack.
Appellant further testified he didn't see law enforcement arrive and
returned to the vehicle only because he thought Nard and Stevens
were ready to leave. He claimed to have no idea what Nard and
Stevens were doing and said he repeatedly told officers he didn't
know anything. He also testified that Nard had placed the plastic
bag in the trunk containing the ether cans and batteries, telling
appellant it was trash to be thrown away. Appellant did admit he
bought pseudoephedrine at the drugstore about a week prior
because he had a cold. He denied making any of the statements
Boerstler attributed to him and claimed not to have noticed any
chemical smells at the scene.
Boerstler was recalled to the stand after appellant's testimony and
reiterated that appellant told him had observed the meth cook
taking place, and had later admitted he personally put the ether
cans in the trunk and covered the car with the tarp.
Indictment, Conviction, and Sentence
Appellant was charged by indictment with one count of illegal
manufacture
of
methamphetamine
pursuant
to
R.C.
2925.04(A)(C)(3)(a), a felony of the second degree, and one count
of illegal assembly of chemicals with intent to manufacture
methamphetamine pursuant to R.C. 2925.041(A)(C)(1), a felony of
the third degree. Appellant entered pleas of not guilty and the case
proceeded to trial by jury. Appellant moved for judgments of
acquittal at the close of appellee's evidence and at the close of all
of the evidence, and the motions were overruled. Appellant was
found guilty as charged and sentenced to a prison term of seven
years.
Appellate Procedural History
Appellant's initial appeal under this case number was filed on April
22, 2012. Through counsel, appellant raised one assignment of
error: the trial court erred by including in the sentencing entry a
provision that appellant is not to be considered or released on
transitional control.
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On July 5, 2011, appellant filed a pro se “Motion to Stay Appeal
and to Re–Appoint Appellate Counsel,” arguing that appellate
counsel should have raised a number of additional assignments of
error. We denied the motion, noting “[a]ppellant is represented by
counsel. This Court will not consider any future pro se pleadings
filed by Appellant.”
We sustained appellant's sole assignment of error on the authority
of State v. Spears, 5th Dist. No. 10–CA–95, 2011–Ohio–1538, ¶
34–38, and reversed and remanded the matter to the trial court for
resentencing absent the “transitional control” language. State v.
Holland, 5th Dist. No. 11–CA–47, 2011–Ohio–6042, ¶ 6.
On February 14, 2012, appellant filed a pro se Application for
Reopening, which we sustained on June 4, 2012. Specifically, we
found a genuine issue exists as to whether appellant was deprived
of effective assistance of appellate counsel for failure to cite as
error the sufficiency of the evidence, and ordered this issue to
proceed as if on initial appeal to this court.
Appellant now raises one Assignment of Error:
“I. THE TRIAL COURT'S DECISION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, AND WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE.”
State v. Holland, No. 11-CA-47, 2013 WL 987837, at *1-5 (Ohio App. 5th Dist. Feb. 26, 2013).
On February 26, 2013, the appellate court affirmed the judgment of the trial court. Id. On June
26, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Holland,
136 Ohio St.3d 1404 (Ohio 2013).
Petitioner pursued various motions for collateral relief. On November 1, 2011, Petitioner
filed a Petition to Vacate or Set aside Judgment of Conviction or Sentence. ECF 6-1, PageID#
233. The trial court denied the petition as untimely. Id. at PageID# 270. On November 22,
2011, Petitioner filed a Motion for Relief from Judgment denying Petition to vacate or set aside
Judgment of Conviction or Sentence. Id. at PageID# 271. On November 30, 2011, the trial
court denied that motion. Id. at PageID# 275. On March 28, 2012, the appellate court reversed
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the judgment of the trial court and remanded the case for further proceedings. Id. at PageID#
301, 304. On June 19, 2012, the trial court denied the petition. Id. at PageID# 320. Petitioner
filed a timely appeal. ECF 6-2, PageID# 325. Petitioner asserted that the trial court improperly
dismissed his post conviction petition without an evidentiary hearing and erred by finding that
his affidavits in support of the petition were defective. Id. at PageID# 406. On February 26,
2013, the appellate court affirmed the judgment of the trial court. Id. at PageID# 403. On June
26, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal. Id. at PageID#
458. Petitioner also filed “a variety of pleadings related to a filing of May 3, 2013 which is
captioned In-Valid Complaint.” Id. at PageID# 475. “The filing generally complains that the
criminal complaint filed on a case was improper or somehow invalid.” Id. The trial court denied
that motion. Id. On September 13, 2013, the appellate court affirmed the judgment of the trial
court. Id. at PageID# 490. On May 28, 2014, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. Id. at PageID# 567. On December 14, 2013, Petitioner filed a
Delayed Application for Reopening, which the appellate court denied as untimely on January 29,
2014. Id. at PageID# 561. On May 28, 2014, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. Id. at PageID# 567.
Petitioner filed this action on September 9, 2014. He alleges that he is being held on a
void sentence because the trial court failed to re-sentence him pursuant to the mandate of the
state appellate court (claim one); that he was convicted on an invalid complaint (claim two); and
that he was denied a fair trial due to prosecutorial misconduct (claim three). In habeas corpus
claim four, Petitioner appears to raise various claims presented in his petition for post conviction
relief: he alleges that he was convicted in violation of the Confrontation Clause, was denied a
fair trial based on improper allegations by the prosecution, was denied the equal protection of the

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law, and was denied the effective assistance of counsel based on his attorney’s failure to raise
these issues.

Petition, PageID# 31.

Respondent contends that Petitioner’s claims are

procedurally defaulted or are otherwise without merit.

Claims One, Three, and Four: Procedural Default
In recognition of the equal obligation of the state courts to protect the constitutional
rights of criminal defendants, and in order to prevent needless friction between the state and
federal courts, a state criminal defendant with federal constitutional claims is required fairly to
present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c).
If he fails to do so, but still has an avenue open to him by which he may present the claims, his
petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459
U.S. 4, 6 (1982) (per curiam ); Picard v. Connor, 404 U.S. 270, 275–76 (1971). If he can no
longer present his claims to a state court, he has waived them for federal habeas review unless he
can demonstrate cause for the procedural default and actual prejudice from the alleged
constitutional error. Murray v. Carrier, 477 U.S. 478, 485 397 (1986); Engle v. Isaac, 456 U.S.
107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a court must consider the following to determine whether
consideration of the merits of a federal habeas claim is foreclosed because of a petitioner’s
failure to observe a state procedural rule: “First, the court must determine that there is a state
procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply
with the rule.” Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must
determine whether the state courts actually enforced the state procedural sanction. Id. Third, the
court must determine whether the state procedural forfeiture is an ‘adequate and independent’

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state ground on which the state can rely to foreclose review of a federal constitutional claim. Id.
Finally, if the court determines that the petitioner failed to comply with an adequate and
independent state procedural rule, the petitioner must demonstrate cause for his failure to follow
the State's procedural rule as well as actual prejudice from the alleged constitutional error. Id.
In claim one, Petitioner alleges that he is being held on an illegal sentence because the
trial court failed to re-sentence him pursuant to the mandate of the Ohio Court of Appeals. In
claim three, Petitioner alleges that he was denied a fair trial because of prosecutorial misconduct.
In claim four, Petitioner alleges that he was convicted in violation of the Confrontation Clause,
was denied a fair trial based on improper allegations by the prosecution, was denied the equal
protection of the law, and was denied the effective assistance of counsel based on his attorney’s
failure to raise these issues. All of these claims are readily apparent from the face of the record
and should therefore have been raised on direct appeal, where Petitioner was represented by
counsel who had not represented him at trial. Petitioner may now no longer raise these claims in
the state courts under Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d (1982);
State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967) (claims must
be raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata.). The
state courts were never given an opportunity to enforce the procedural rule at issue because of
the nature of Petitioner's procedural default.
Petitioner appears to have raised allegations made in support of claim four in his petition
for post conviction relief; however, the appellate court affirmed the trial court’s dismissal of
these claims as barred under Ohio’s doctrine of res judicata. ECF 6-2, PageID# 403. Thus, the
state courts explicitly enforced Ohio’s doctrine of res judicata.

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Ohio's doctrine of res judicata in this context is adequate and independent under the third
prong of the Maupin test. To be “independent,” the procedural rule at issue, as well as the state
court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S.
722, 732–33 (1991). To be “adequate,” the state procedural rule must be firmly established and
regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly
established and regularly followed state practice’ may be interposed by a State to prevent
subsequent review by this Court of a federal constitutional claim.” Id. at 423 (quoting James v.
Kentucky, 466 U.S. 341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149
(1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v.
Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).
The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry
rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d
754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v.
Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir.
2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently
refused, in reliance on the doctrine of res judicata, to review the merits of claims because they
are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112 ; State v. Ishmail, 67 Ohio St.2d at
16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring
that claims are adjudicated at the earliest possible opportunity. With respect to the independence
prong, the Court concludes that Ohio's doctrine of res judicata in this context does not rely on or
otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of
relevant case law that the Perry rule is an adequate and independent ground for denying relief.

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Petitioner may still secure this Court's review of the merits of these claims if he
establishes cause for his procedural default as well as actual prejudice from the alleged
constitutional violations.
“‘Cause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him [, i.e.,] . . . some objective factor external to the defense [that]
impeded . . . efforts to comply with the State's procedural rule.”
Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Petitioner has failed to meet this standard.
Nothing in the record indicates that any external factor impeded Petitioner's ability to pursue
proper appeals raising these claims.
Additionally, any claimed ineffective assistance of appellate counsel cannot serve as
cause for Petitioner's procedural default of these claims, because Petitioner also procedurally
defaulted his claim of ineffective assistance of appellate counsel, as evidenced by the state
appellate court’s denial of his Rule 26(B) application as untimely. See Edwards v. Carpenter,
529 U.S. 446, 451–52 (2000) (ineffective assistance of counsel can constitute cause for a
procedural default only if that claim has been properly preserved).
Beyond the four-part Maupin analysis, this Court is required to consider whether this is
“an extraordinary case, where a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,
505 U.S. 333.
[I]f a habeas petitioner “presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of
nonharmless constitutional error, the petitioner should be allowed
to pass through the gateway and argue the merits of his underlying
claims.” Schlup [v. Delo], 513 U.S. [298,] 316, 115 S.Ct. 851, 130
L.Ed.2d 808 [(1995)]. Thus, the threshold inquiry is whether “new
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facts raise [ ] sufficient doubt about [the petitioner's] guilt to
undermine confidence in the result of the trial.” Id. at 317, 513
U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual
innocence, “a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidencewhether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.
Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (footnote omitted). The record in this action
fails to satisfy this standard.

Claim Two
In claim two, Petitioner alleges that the complaint filed against him in the Municipal
Court was invalid because it was neither executed under oath nor notarized, and because it
contained no statement of facts. Moreover, Petitioner alleges, the complaint failed to establish
cause for his arrest and failed to comply with Rule 3 of the Ohio Rules of Criminal Procedure.
As a consequence, according to Petitioner, his conviction is a nullity.1 However, this claim
presents only an issue of an alleged violation of state law, which cannot form the basis of federal
habeas corpus relief.

1

 The state appellate court addressed the merits of this claim in affirming the trial court’s dismissal of Petitioner’s
Motion Subject Matter Jurisdiction in-Valid Complaint, ECF No. 6-2, PageID# 491. Specifically, the state appellate
court held that, under Ohio law, the Court of Common Pleas is vested with jurisdiction over all crimes and offenses
except in cases of minor offenses, and that an affidavit and complaint are unnecessary where, as in Petitioner’s case,
an indictment has been returned.

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A federal court may review a state prisoner's habeas petition only on the ground that the
challenged confinement violates 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)). It is only where the error has resulted in the
denial of fundamental fairness that habeas relief will be granted. Cooper v. Sowders, 837 F.2d
284, 286 (6th Cir. 1988). Such are not the circumstances here.

Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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

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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,
106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
September 29, 2015

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