Brown v. Warden, Ross Correctional Institution

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Rarecole L.E. Brown. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 11/14/2016. Signed by Magistrate Judge Norah McCann King on 10/27/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RARECOLE L.E. BROWN,
Petitioner,
Case No. 2:15-cv-01374
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

v.
WARDEN, ROSS CORRECTIONAL
INSTITUTION,
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. 1),, Respondent’s
Return of Writ (ECF No. 7), 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
this case as follows:
On June 1, 2012, Justin Minor was living with a friend in
Zanesville, Ohio, whom he knew only by his first name of George.
Minor made a living selling drugs, specifically heroin and crack.
He knew George from dealing drugs, and had been living with
George and a man named “T” for about four days. Justin's brother
Samson had lived in the house at one time, and had installed a
camera system in the house. Justin paid rent to George in drugs
rather than cash.
During the evening of June 1, 2012, Minor was hanging out at the
house with George, T, and appellant, who Minor had known for
years. Minor was selling drugs, and ran out of heroin. Because no
one among the group at the house had a valid driver's license,
Minor called a customer named Nick Large to drive appellant to
Columbus to get more heroin, as well as some crack cocaine.

Minor sent $2200 with them for two ounces of heroin, and another
$200 for crack. Minor stayed at the house with T and George, as
well as his girlfriend Keree and a woman named Lisa.
On the camera system, Minor saw appellant return from
Columbus. When Minor asked appellant for the crack, appellant
would not give him the drugs. Initially the crack was to be split
evenly between Nick Large and Minor, but appellant now wanted
some of the crack for his trouble in making the trip to Columbus.
Minor agreed to give appellant half of his share.
Appellant used a scale in the kitchen to weigh the crack. However,
Minor noticed that appellant was taking the larger pieces for
himself and giving Minor the crumbs. The two of them argued, and
appellant pulled out a gun and shot Minor in the abdomen.
Appellant began pacing back and forth, saying, “Look what you
made me do.” Minor told appellant to get out of there and
appellant took off running.
Nick Large called 911 during the early morning hours of June 2,
2012, and reported the incident as a drive-by shooting. Police
arrived and found Minor lying on the porch, wounded. Police
found a hat and a gun about a block away from the shooting.
Appellant called Minor while Minor was recuperating in the
hospital, and again after he was released from the hospital.
Appellant asked Minor to “keep it in the streets,” and Minor
responded that he would “stick to the script.”
Police interviewed appellant concerning the shooting. He claimed
that he was not in Zanesville on the day of question.
Appellant was charged with attempted murder, felonious assault
and having a weapon under a disability. The case proceeded to jury
trial in the Muskingum County Common Pleas Court.
At trial, appellant admitted that he traveled to Columbus with Nick
Large to pick up drugs for Minor. He testified that he went into the
bathroom after returning, and when he came out Minor said,
“Where the fuck is my shit?” Tr. 436. Appellant testified that he
told Minor he gave it to him, and Minor replied, “No, man, my shit
short.” Minor accused appellant of stiffing him, and the two
argued. Minor then pulled out a gun. When appellant tried to take
the gun from Minor, the gun went off. He testified that he lied to
police earlier because he was on probation and being around
Minor, a convicted felon, would send him back to prison. He also
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testified that he lied to police because he never thought Minor
would implicate him as the shooter.
Appellant was acquitted of attempted murder, but convicted of
felonious assault with the firearm specification and having a
weapon under disability. He was sentenced to eight years
incarceration for felonious assault, three years incarceration for the
firearm specification, and five years incarceration for having a
weapon under disability. The five year sentence was to be served
concurrently with the eight year sentence, for an aggregate term of
eleven years incarceration. Appellant assigns the following errors
on appeal:
“I. DEFENDANT–APPELLANT WAS PREJUDICED BY THE
INTRODUCTION OF UNRELIABLE AND INADMISSIBLE
DNA EVIDENCE CONTRARY TO OHIO LAW AND THE
STATE AND FEDERAL CONSTITUTIONS.
“II. DEFENDANT–APPELLANT WAS PREJUDICED BY THE
DENIAL OF HIS RIGHT TO CONFRONT HIS ACCUSER AND
TO PRESENT A DEFENSE CONTRARY TO OHIO LAW AND
THE STATE AND FEDERAL CONSTITUTIONS.
“III. DEFENDANT–APPELLANT WAS DENIED A FAIR
TRIAL BY PROSECUTORIAL MISCONDUCT CONTRARY
TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.
“IV. DEFENDANT–APPELLANT WAS PREJUDICED BY THE
FAILURE OF THE TRIAL COURT TO GIVE PROPER JURY
INSTRUCTIONS, WHICH ERROR FORECLOSED HIS
DEFENSES OF ACCIDENT AND NECESSITY, AND BY
THOSE ATTRIBUTING TO HIM AN AFFIRMATIVE
DEFENSE OF SELF–DEFENSE, WHICH HE HAD NOT
RAISED, CONTRARY TO OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.
“V. DEFENDANT–APPELLANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO
THE STATE AND FEDERAL CONSTITUTIONS.
“VI. DEFENDANT–APPELLANT WAS PREJUDICED WHEN
HE WAS SENTENCED TO A TERM OF 5 YEARS
IMPRISONMENT FOR AN F–3 WEAPONS UNDER
DISABILITY (WUD) WHEN AN F–3 WUD CARRIES A
MAXIMUM TERM OF ONLY 36 MONTHS UNDER R.C.
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2929.14(A)(3)(a-b) CONTRARY TO OHIO LAW AND THE
STATE AND FEDERAL CONSTITUTIONS.
“VII. DEFENDANT–APPELLANT WAS PREJUDICED BY
CUMULATIVE ERROR CONTRARY TO OHIO LAW AND
THE STATE AND FEDERAL CONSTITUTIONS.”
State v. Brown, No. CT2013-0004, 2013 WL 4503303, at *1-2 (Ohio App. 5th Dist. Aug. 20,
2013). On August 20, 2013, the appellate court sustained Petitioner’s sixth assignment of error,
reversing the judgment of the trial court solely as to Petitioner’s five year sentence for his
conviction under O.R.C. § 2923.13(A)(3),1 but otherwise affirmed the judgment of the trial
court, and remanded the case for re-sentencing. On January 22, 2014, the Ohio Supreme Court
dismissed the appeal. State v. Brown, 137 Ohio St.3d 1474 (Ohio 2014).
Petitioner, who is proceeding with the assistance of counsel, filed the Petition in this
Court on April 22, 2015, He alleges that he was denied the right to confront and defend against
the charge of felonious assault, because the trial court prohibited him from cross-examining the
alleged victim about his prior statement that he had shot himself accidentally and that Petitioner
did not intentionally shoot him. Respondent contends that this claim lacks merit.
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

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 The state appellate court held:
[A]ppellant argues that the court erred in sentencing him to five years incarceration for a felony
three conviction of having a weapon under a disability, as the maximum term is 36 months
pursuant to R.C. 2929.14(A)(3)(a) and (b). The State concedes this error. R.C. 2929.14(A)(3)(a)
provides for a maximum term of five years incarceration for certain convictions of third degree
felonies; however, a conviction of 2923.13 is not among these offenses. Accordingly, the
maximum sentence to which appellant could be sentenced for violating R.C. 2923.13 was 36
months pursuant to R.C. 2929.14(A)(3)(b).
The sixth assignment of error is sustained.

State v. Brown, 2013 WL 4503303, at *7.

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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, 102 (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.
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.
28 U.S.C. § 2254(e)(1). “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) (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 explained these standards as follows:
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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, 181 (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, 131 S.Ct. at 786
(“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
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)
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(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 181. Put simply, “review under § 2254(d)(1)
focuses on what a state court knew and did.” Id. at 182.
Merits
The state appellate court rejected Petitioner’s claim as follows:
[A]ppellant argues that the court erred in excluding a tape recorded
statement of Minor in which he conceded appellant's accident
defense.
During Minor's testimony, counsel for appellant asked him:
“Q. That is more than one. Here's what I'm asking you. Did you
tell Mr. Brown, and I quote, I know you didn't do nothing, man?
“A. I can't recall.” Tr. 264.
Counsel then requested a sidebar conference. At sidebar, he
represented to the court that he had a tape recording of a call in
which Minor said, “I know you didn't do nothing, man.” The court
found that Minor's testimony that he didn't recall making the
statement was not inconsistent with making the statement, and the
tape was inadmissible.
The admission or exclusion of evidence lies within the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510
N.E.2d 343 (1987). Crim. R. 52(A), governing harmless error,
states that “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights shall be disregarded.”
In the instant case, exclusion of the tape-recorded statement was
harmless as it did not affect appellant's substantial rights. Minor
testified that when talking to appellant on the telephone, he had
agreed to “stick to the script” in an effort to conceal his true
intentions with regard to prosecution of the case. The specific
statement which counsel represented to be on the tape was not
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materially different from Minor's prior testimony and appellant
cannot demonstrate that its exclusion affected a substantial right.
Any error in exclusion of the tape was harmless.
State v. Brown, 2013 WL 4503303, at *3.
To the extent that Petitioner raises an issue regarding state evidentiary law, it does not
provide a basis for relief. 28 U.S.C. § 2254(a). As a general matter, an error under state law,
especially the improper admission of evidence, does not provide a basis for federal habeas
corpus relief. Estelle v. McGuire, 502 U.S. 62 (1991); Giles v. Schotten, 449 F.3d 698, 704 (6th
Cir. 2006). To be entitled to habeas relief, a petitioner must demonstrate that an evidentiary
ruling violated more than a state rule of evidence or procedure. “Habeas review does not
encompass state court rulings on the admission of evidence unless there is a constitutional
violation.” Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). In other words, “ ‘[e]rrors
by a state court in the admission of evidence are not cognizable in habeas proceedings unless
they so perniciously affect the prosecution of a criminal case as to deny the defendant the
fundamental right to a fair trial.’ ” Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006) (citing Roe
v. Baker, 316 F.3d 557, 567 (6th Cir. 2002)). A state court evidentiary ruling does not violate
due process unless it “offend[s] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.' ” Giles, 449 F.3d at 704 (citing
Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001)). Consequently, this Court's review is
limited to whether Petitioner can demonstrate a violation of his federal constitutional rights.
Haliym v. Mitchell, 492 F.3d 680, 700 (6th Cir. 2007).
Petitioner has sought to elevate his claim to a constitutional level by contending that the
challenged trial court's evidentiary ruling violated Petitioner’s right to present a complete
defense as guaranteed by the Sixth Amendment. The Sixth Amendment to the United States

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Constitution guarantees criminal defendants the right to physically confront and cross examine
adverse witnesses at all stages of the trial. Illinois v. Allen, 397 U.S. 337, 388 (1970). The
Constitution guarantees criminal defendants a meaningful opportunity to present a complete
defense.

Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right ensures a defendant's

opportunity to present witnesses in his defense. See Taylor v. Illinois, 484 U.S. 400, 409 (1988).
A criminal defendant's right to cross-examine witnesses who testify against him, however, is not
unlimited. “Trial judges retain wide latitude . . . to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of
the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The Confrontation Clause thus guarantees
the opportunity for effective cross-examination, not cross examination in whatever way or to
whatever extent a defendant may desire. Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20
(1985)). See also Norris v. Schotten, 146 F.3d 314, 330 (6th Cir. 1998) (no Confrontation Clause
violation where relevance of questions prohibited on cross-examination is unclear and the risk of
prejudice real) (citations omitted). “The accused does not have an unfettered right to offer
testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.” Taylor, 484 U.S. at 410; Rockwell v. Yukins, 341 F.3d 507 (6th Cir. 2003). The
Supreme Court has made it clear that the right to present a “complete” defense is not an
unlimited right to ride roughshod over reasonable evidentiary restrictions. Rockwell, at 512.
Criminal defendants “must comply with established rules of procedure and evidence
designed to assure fairness and reliability in the ascertainment of guilt and innocence.” United
States v. Cruse, 59 Fed. Appx. 72, 79 (6th Cir. 2003)(quoting Chambers v. Mississippi, 410 U.S.
284, 302 (1973)). The application of “[s]uch rules do[es] not abridge an accused's right to

9 

present a defense so long as they are not arbitrary or disproportionate to the purposes they are
designed to serve.” Cruse, 59 Fed. Appx. at 79–80. Whether a decision to exclude certain
evidence or preclude questioning about a particular matter violates a criminal defendant's
constitutional right to present a defense “turns on the extent to which that evidence is so highly
relevant that it becomes indispensable to the success of the defense.” Crane, 476 U.S. at 691.
Against such considerations courts must balance the state's interests in enforcing the evidentiary
rule on which the exclusion was based. The question for the Court to consider is whether
Petitioner was afforded ‘a meaningful opportunity to present a complete defense.’” Crane, 476
U.S. at 690 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
As the United States Supreme Court has recognized, “[o]nly rarely have we held that the
right to present a complete defense was violated by the exclusion of defense evidence under a
state rule of evidence.” Nevada v. Jackson, –––U.S. ––––, ––––, 133 S.Ct. 1990, 1992 (2013).
Cases in which the Supreme Court has declared the exclusion of evidence unconstitutional found
that the exclusion “significantly undermined fundamental elements of the defendant's defense.”
United States v. Scheffer, 523 U.S. 303, 317 (1998).
Where a trial court limits the extent of a criminal defendant's cross-examination, but does
not bar it completely, the trial court is afforded wider latitude. Dorsey v. Parke, 872 F.2d 163,
167 (6th Cir. 1989). Under such circumstances, the test is “whether the jury had enough
information, despite the limits placed on otherwise permitted cross-examination, to assess the
defense theory.” Drummond v. Houk, 761 F.Supp.2d (N.D.Ohio 2010) (citing Dorsey v. Parke)).
At Petitioner’s trial, after defense counsel had concluded his cross examination of Minor
(and Minor had stated that he could not recall if he had ever made the statement, “I know you
didn’t do nothing, man”), defense counsel requested a side bar. Transcript (ECF No. 8-2,

10 

PageID# 263-64). Defense counsel did not indicate that he had any further questions for the
witness. Thus, the record does not establish that the defense was precluded from asking any
further questions on cross examination. Instead, defense counsel sought permission to attack
Minor’s credibility by introducing a tape recording of the June 14, 2012, telephone conversation
from the Zanesville City Jail, during which Minor allegedly made the statement. Id. (ECF No. 82, PageID# 265). The trial court denied that request, reasoning that Minor had not denied
making the statement. Id. (PageID# 265-66.) Petitioner claims that the trial court thereby denied
him the right to confront the witnesses against him and to present a defense. This Court
disagrees.
As noted by the state appellate court, Minor testified at some length, and was subject to
cross examination, regarding his conversations with Petitioner, during which he told Petitioner
that he would not testify against him or blame him for the assault. According to Minor,
Petitioner wanted Minor to “clear his name” and Minor agreed to do so by denying that
Petitioner had purposely shot him. Minor also assured Petitioner that he would not testify
against him. Id. (PageID# 215-216.) After Minor had been released from the hospital, he and
Petitioner spoke again by cell phone, and Minor again agreed that he would not blame Petitioner
for intentionally shooting him.
Q. And what was the nature of that conversation?
A. Basically, the same thing, just that he didn’t shoot me. We
didn’t go to the basics of the shooting or nothing like that, but it
was just, you know, talking, I guess, like a code or something like
that.
***
Q. And what was the code about?
A. Just. . . keeping it basically in the streets.
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***
I told him I was going to stick to the script.
Q. Stick to the script. And you say that means let’s keep this in
the streets?
A. Yeah.
Id. (PageID# 218-19). Minor testified that he did not want Petitioner to know how he planned to
handle things. Id. (PageID# 220). Minor denied ever stating that the shooting had been an
accident or that he had shot himself. Id. Moreover, Minor failed to appear for Petitioner’s
criminal trial in late August, despite having been subpoenaed to do so. Id. (PageID# 221). He
explained that he been threatened and was afraid. Id. (PageID# 221-22). Minor was arrested as
a result of his failure to appear, and had remained incarcerated for three weeks awaiting trial
proceedings. Id. (PageID# 222). He acknowledged that his trial testimony differed from various
statements that he had previously provided to police regarding the shooting. Id. (PageID# 22425).
As this summary makes clear, the record simply does not establish that Petitioner was
prevented by the trial court’s evidentiary ruling from presenting his defense. Minor never denied
making the statement referred to by defense counsel. Further, admission of a tape recorded
conversation in which he made such a statement would have added little to the defense in view
of the evidence already presented. Minor admitted that he had spoken with Petitioner on more
than one occasion and that he had verbally agreed not to blame Petitioner for the shooting or to
pursue criminal charges against him. In fact, it appears that Minor attempted to keep his word in
that regard by initially failing to appear to testify against Petitioner. Under these circumstances,
Petitioner has failed to establish that the state appellate court’s rejection of his claim – that he

12 

had been denied the right to confront witnesses against him or present a defense – justifies
federal habeas corpus relief. Petitioner had a meaningful opportunity to present a defense and
the Court is not persuaded that such extrinsic evidence would have added to or refuted in any
significant manner the testimony already in the record.
Moreover, the exclusion of this proffered evidence was harmless under the strict standard
applicable in federal habeas cases. See Fleming v. Metrish, 556 F.3d 520, 536–37 (6th Cir.
2009) (right to present a defense is subject to a harmless error analysis). On federal habeas
review, the harmless-error standard requires a court to determine whether the violation “had
substantial and injurious effect or influence in determining the jury's verdict.”

Brecht v.

Abrahamson, 507 U.S. 619 (1993). Habeas courts must apply this standard regardless of the
harmless-error standard applied by the state court – or even if the state court failed to undertake a
harmless error review. Fry v. Pliler, 551 U.S. 112, 121–22 (2007). As discussed supra, the
record establishes that defense counsel was afforded ample opportunity to cross-examine Minor
in order to raise issues regarding the witness’ credibility in view of his prior statements denying
Petitioner’s culpability. Consequently, the exclusion of a statement purportedly made by Minor
during the course of a telephone conversation with Petitioner, to the effect that Minor would not
pursue charges against Petitioner or charge Petitioner with intentionally shooting him did not
have a substantial and injurious effect or influence on the jury's verdict.

Consequently,

Petitioner is not entitled to habeas relief on this basis.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

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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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
October 27, 2016

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