Saxton v. Bracy

Filing 11

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS denying 1 Petition for Writ of Habeas Corpus and dismissing this case. Objections to R&R due by 3/8/2018. Signed by Magistrate Judge Kimberly A. Jolson on 2/22/2018. (ew)(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
KELVIN SAXTON,
CASE NO. 2:17-CV-703
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, TRUMBULL
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this 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, and
the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS
that the Petition (Doc. 1) be DENIED and this case be DISMISSED.
I.

FACTS AND PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

the case as follows:
In 2013, appellant and A.G. met and began dating. At the time,
appellant was 27 and A.G. was 17. Shortly thereafter, they started
living together in appellant’s father’s apartment. When they stayed
there, they slept in the living room while appellant’s father slept in
his bedroom.FN1 Although the relationship started well, by April
2014, appellant had become worried that A.G. was cheating on
him. During the night of April 14, 2014 and into the early morning
hours of the 15th, appellant repeatedly asked her if she had cheated
on him. A.G. denied doing so, but appellant apparently did not
believe her so he continued his questioning. Eventually, appellant
held a knife to her throat and told her he would cut her throat if she
lied to him about cheating on him. He began to physically assault
her, slapping and punching her with his hands as he continued to
question her about her fidelity. Appellant also bit her face, head-

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butted her in the nose, and stabbed her in the back with the knife.
All of this occurred in the apartment’s living room.
At some point during the assault, appellant slammed A.G. up
against a wall in the living room and told her to lie down. She did
while appellant continued to kick and punch her and stomp on her
head. He then turned the lights off and told her to perform oral sex
on him. She did not want to but did so because she felt like she had
no choice. Appellant continued to hit her because he said she was
not doing a good job. Appellant then told her to lie down on her
back so that he could have sex with her. Again, she did not want to
but she complied. She did not say anything because she was too
scared. After these events, the two went to sleep. The next
morning, while appellant was in the bathroom, A.G. left the
apartment and went to her mother’s nearby apartment. A.G. went
to a hospital and was treated for extensive injuries to her head and
upper torso, including a puncture wound on her back.
As a result of these events, a Franklin County Grand Jury indicted
appellant with counts of felonious assault in violation of R.C.
2903.11, kidnapping in violation of R.C. 2905.01, domestic
violence in violation of R.C. 2919.25, and two counts of rape in
violation of R.C. 2907.02. Appellant entered a not guilty plea to
the charges and proceeded to a jury trial.
At his trial, A.G. testified to the above version of events. In
addition, police and medical personnel testified about her injuries
and her treatment. One officer testified that he had “never seen
anyone, man or woman, that was beaten that badly” in his 11 years
of being on patrol. (Tr. 144.) Appellant did not testify, but his
father did. He testified that he was awake all night watching
television in his bedroom and that he did not hear any disturbance
or yelling from the living room.
The jury found appellant guilty of all counts and the trial court
sentenced him accordingly.
II. Appellant’s Appeal
Appellant appeals and assigns the following errors:
I. The trial court erred and deprived appellant of due
process of law as guaranteed by the Fourteenth Amendment
to the United States Constitution and Article One Section
Ten of the Ohio Constitution by finding him guilty of
felonious assault; kidnapping; and rape as those verdicts
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were not supported by sufficient evidence and were also
against the manifest weight of the evidence.
II. The trial court erred to the prejudice of appellant by
improperly sentencing him to consecutive terms of
incarceration in contravention of Ohio’s sentencing
statutes.
III. The trial court erred to the prejudice of appellant by not
merging his convictions for rape.
FN1: It was unclear how much time the two stayed at
appellant’s father’s house, but they did spend time at other
places and were homeless for some time.
State v. Saxton, 61 N.E.3d 830, 832–33 (Ohio Ct. App. 2016). On March 24, 2016, the state
appellate court sustained Petitioner’s second assignment of error, but otherwise affirmed the
judgment of the trial court, and remanded the case to the trial court for re-sentencing. Id. On
July 27, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Saxton, 146 Ohio St.3d 1472 (Ohio 2016). On November 10, 2016, the trial court held a resentencing hearing pursuant to the remand of the state appellate court, and re-imposed an
aggregate term of twenty years of incarceration. (Doc. 10-1, PageID# 190). Petitioner did not
file a timely appeal. However, on May 19, 2016, Petitioner filed an application to reopen the
appeal pursuant to Ohio Appellate Rule 26(B). (Doc. 10-1, PageID# 168). On September 27,
2016, the appellate court denied the Rule 26(B) application.

(Doc. 10-1, PageID# 186).

Petitioner did not appeal that denial to the Supreme Court of Ohio.
On August 10, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He asserts that the evidence is constitutionally insufficient to sustain his
convictions (claim one); and that his convictions on two counts of rape should have been
merged, and thus violate the Double Jeopardy Clause (claim two). Respondent argues that these
claims are meritless.
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II.

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 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)
(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
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that the state court relied on an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”). The burden of satisfying the standards set forth in
§ 2254 rests with the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
III.

DISCUSSION
A. Claim One
Petitioner asserts that the evidence is constitutionally insufficient to sustain his

convictions on felonious assault, kidnapping, and rape. Specifically, Petitioner argues that the
evidence showed that: the victim had suffered only a small scratch to her lower torso, and she
could not recall the date or cause of that injury; she did not claim that Petitioner had forced her to
have sex with him; and the prosecution did not recover a weapon. The state appellate court
rejected this claim on the merits:
[A]ppellant contends that his convictions are not supported by
sufficient evidence and are also against the manifest weight of the
evidence. Although sufficiency and manifest weight are different
legal concepts, manifest weight may subsume sufficiency in
conducting the analysis; that is, a finding that a conviction is
supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency. State v. McCrary, 10th Dist. No.
10AP–881, 2011-Ohio-3161, 2011 WL 2536451, ¶ 11, citing State
v. Braxton, 10th Dist. No. 04AP–725, 2005-Ohio-2198, 2005 WL
1055819, ¶ 15. “[T]hus, a determination that a conviction is
supported by the weight of the evidence will also be dispositive of
the issue of sufficiency.” Id. In that regard, we first examine
whether appellant’s conviction is supported by the manifest weight
of the evidence. State v. Gravely, 188 Ohio App.3d 825, 2010Ohio-3379, 937 N.E.2d 136, ¶ 46 (10th Dist.).
***
Appellant argues that the evidence does not support his
convictions. In doing so, he points out that A.G. was originally
unsure how or when appellant stabbed her and that she did not call
appellant’s father for help even though he was in the apartment
during the assault. He also argues that she did not testify that

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appellant forced her to have sex with him. These points are not
persuasive.
To the extent that appellant is attacking A.G.’s credibility, we
reiterate that the jury is in the best position to determine the
credibility of witnesses. State v. Scott, 10th Dist. No. 10AP–174,
2010-Ohio-5869, 2010 WL 4926442, ¶ 17; State v. Eisenman, 10th
Dist. No. 10AP–809, 2011-Ohio-2810, 2011 WL 2408302, ¶ 20.
The jury obviously chose to believe A.G.’s testimony describing
the events. This is within the province of the trier of fact and given
the great deference we afford to that determination, we cannot say
that the jury lost its way in making that determination so as to
create a manifest miscarriage of justice. State v. Page, 10th Dist.
No. 11AP–466, 2012-Ohio-671, 2012 WL 566763.
Additionally, a defendant is not entitled to a reversal on manifest
weight grounds merely because inconsistent evidence was offered
at trial. State v. Campbell, 10th Dist. No. 07AP–1001, 2008-Ohio4831, 2008 WL 4332044, ¶ 23. The trier of fact is in the best
position to take into account the inconsistencies in the evidence, as
well as the demeanor and manner of the witnesses, and to
determine which witnesses are more credible. State v. DeJoy, 10th
Dist. No. 10AP–919, 2011-Ohio-2745, 2011 WL 2201189, ¶ 27.
While appellant points to certain portions of A.G.’s testimony
concerning the knife wound that were arguably inconsistent, these
inconsistencies do not render the convictions against the manifest
weight of the evidence. The jury was aware of these
inconsistencies and chose to believe her testimony. This is within
the province of the trier of fact. State v. Conkel, 10th Dist. No.
08AP–845, 2009-Ohio-2852, 2009 WL 1682006, ¶ 17–18; State v.
Thompson, 10th Dist. No. 08AP–22, 2008-Ohio-4551, 2008 WL
4151594, ¶ 20–21. Additionally, we note that a doctor who treated
A.G. testified that the wound was consistent with a knife stab. (Tr.
197.) Further, the shirt A.G. was wearing during the assault had a
hole in it where she was stabbed. (Tr. 83.)
Lastly, although it is correct that A.G. did not use the word “force”
in her testimony to describe the events that occurred that morning,
that argument overlooks the entirety of her testimony describing
the events, which clearly supports a finding that appellant forced
her to engage in both fellatio and vaginal sex.FN2 During this
encounter, appellant severely beat her and threatened her life with
a knife. After doing so, he ordered her to perform fellatio on him
and then ordered her to lay down so that he could have sex with
her. She did not want to perform those acts but did so because she
thought he was “going to hit me more or stab me again.” (Tr. 90.)
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She testified that she had no choice but to comply. (Tr. 67.) In light
of her testimony, the jury did not lose its way in concluding that
appellant used force to compel A.G. to submit. See State v. Durdin,
10th Dist. No. 14AP–249, 2014-Ohio-5759, 2014 WL 7462990,
¶ 38, quoting State v. Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d
304 (1988) (“‘As long as it can be shown that the rape victim’s
will was overcome by fear or duress, the forcible element of rape
can be established.’”).
A conviction is not against the manifest weight of the evidence
because the trier of fact believed the state’s version of events over
the defendant’s version. State v. Lindsey, 10th Dist. No. 14AP–
751, 2015-Ohio-2169, 2015 WL 3540415, ¶ 43, citing State v.
Gale, 10th Dist. No. 05AP–708, 2006-Ohio-1523, 2006 WL
827777, ¶ 19. Here, the jury did not lose its way in deciding to
believe the victim’s testimony and not appellant’s version of
events. Accordingly, appellant’s convictions are not against the
manifest weight of the evidence. This conclusion is also dispositive
of appellant’s claim that his convictions are not supported by
sufficient evidence. Page at ¶ 12, citing McCrary at ¶ 17.
Accordingly, we overrule appellant’s first assignment of error.
FN2: R.C. 2907.02(A)(2) provides that “[n]o person shall engage
in sexual conduct with another when the offender purposely
compels the other person to submit by force or threat of force.”
Saxton, 61 N.E.3d at 833–35.
In determining whether the evidence was sufficient to support a petitioner’s conviction, a
federal habeas court must view the evidence in the light most favorable to the prosecution.
Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The prosecution is not affirmatively required to “rule out every hypothesis except that of guilt.”
Id. (quoting Jackson, 443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of
historical facts that supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.’” Id. at 296–97 (quoting Jackson, 443 U.S. at
326).

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Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, deference
must be given, first, to the jury’s finding of guilt because the standard, announced in Jackson v.
Virginia, is whether “viewing the trial testimony and exhibits in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” 567 F.3d 191, 205 (6th Cir. 2009). Second, and even if a de novo
review of the evidence leads to the conclusion that no rational trier of fact could have so found, a
federal habeas court “must still defer to the state appellate court’s sufficiency determination as
long as it is not unreasonable.” Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).
This is a substantial hurdle for a habeas petitioner to overcome, and Petitioner has not done so
here.
The Court concludes that the record reflects constitutionally sufficient evidence to sustain
Petitioner’s convictions. Petitioner was charged with knowingly causing or attempting to cause
physical harm to A.G. by means of a knife, in violation of Ohio Revised Code § 2903.11
(felonious assault); restraining A.G. of her liberty by the use of force, threat, or deception, with
the purpose to facilitate the commission of rape or felonious assault, and/or to engage in sexual
activity with A.G. against her will, in violation of § 2905.01 (kidnapping); and compelling A.G.
to engage in fellatio and vaginal intercourse by force or threat of force, in violation of § 2907.02
(two counts of rape). Indictment (Doc. 10-1, PageID# 55–57.)
A.G. testified that she moved in with Petitioner in October or November of 2013.
Transcript (Doc. 10-1, PageID# 257.) On April 14, 2014, he accused her of disloyalty and began
to assault her. She started to pack her belongings in an attempt to leave, but Petitioner bit her
face, stabbed her with a knife in the back, head-butted her in the nose, and slapped and punched

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her. (PageID# 263–64). Petitioner held the knife to her neck and threatened to slice her throat.
(PageID# 265). Blood was gushing out of her nose. (PageID# 266). Petitioner then instructed
her to perform oral sex. She did not want to, but complied because she was afraid, he was
beating her, and she felt she had no choice. (PageID# 268, 291). Next, Petitioner ordered A.G.
to lie down, and Petitioner had intercourse with her. Petitioner kept telling her to “shut up and be
quiet.” (PageID# 269.) The next morning, when Petitioner went to the bathroom, she escaped
and ran to her mother’s house. (PageID# 271–72).
A.G.’s mother called an ambulance. (PageID# 274). At the hospital, doctors stapled the
stab wound on A.G.’s back closed—the wound was too deep for stiches. (Id.). A.G.’s forehead
was swollen, her one eye was swollen shut, her arms were bruised. (PageID# 275). In addition,
her jaw was swollen, and she was unable to eat for about three weeks because she could not open
her mouth. (PageID# 277). At the time of the trial, A.G.’s hearing was still impaired and she
was unable to move her one eyebrow as a result of the beating. (PageID# 275).
A.G.’s testimony, standing alone, provides constitutionally sufficient evidence to sustain
Petitioner’s convictions. In particular, the prosecution was not required to introduce the knife
that Petitioner used to stab A.G. in order to establish that he stabbed her in view of A.G.’s
testimony. See, e.g., Peters v. Warden, No. 2:14-cv-1803, 2015 WL 5453074, at *5 (S.D. Ohio
Sept. 17, 2015) (witness testimony sufficient to sustain Petitioner’s conviction on carrying a
concealed weapon). Further, and contrary to Petitioner’s allegation here, as discussed, the record
indicates that A.G. suffered serious injuries as a result of Petitioner’s assault. Detective Larry
Ingram testified that he had never seen a person so badly beaten. (PageID# 345). “The photos
don’t do it justice.” (Id.)
Claim one is without merit.

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B. Claim Two
In claim two, Petitioner asserts that his convictions on two counts of rape should have
been merged, because both acts occurred in a short span of time with no intervening events
between them. The state appellate court rejected this claim as follows:
[A]ppellant argues that his rape convictions, one based on fellatio
and the other based on vaginal intercourse, should merge because
they were committed close in time as part of one course of conduct
and without separate animus or purpose. We disagree.
Even in light of recent Supreme Court of Ohio case law that
addresses merger,FN4 this court continues to follow the wellestablished principle that different forms of forcible penetration
constitute separate acts of rape for which a defendant may be
separately punished. State v. Adams, 10th Dist. No. 13AP–783,
2014-Ohio-1809, 2014 WL 1712846, ¶ 11, citing State v.
Accorinti, 12th Dist. No. CA2012–10–205, 2013-Ohio-4429, 2013
WL 5533058, ¶ 13; State v. Daniels, 9th Dist. No. 26406, 2013Ohio-358, 2013 WL 457253, ¶ 9. Here, appellant committed two
different forms of forcible penetration which support two separate
convictions for rape. Accordingly, the trial court did not err by not
merging those convictions for purposes of sentencing. We overrule
appellant’s third assignment of error.
FN4: State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, and State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio995, 34 N.E.3d 892, both address the proper analysis a trial court
should apply for merger claims. Neither of those cases, however,
involved different forms of rape committed against one victim.
Saxton, 61 N.E.3d at 836–37.
As a threshold matter, the Court notes that the state appellate court decided whether
Petitioner’s claims should have been merged under state law and did not address expressly
whether Petitioner’s Fifth Amendment rights had been violated. The Sixth Circuit has held,
however, that such an analysis is “entirely dispositive” of the federal Double Jeopardy claim
because it “answers the constitutional and state statutory inquiries.” Jackson v. Smith, 745 F.3d

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206, 210 (6th Cir. 2014) (internal quotation marks omitted). Consequently, such a decision is an
adjudication of the federal claim “on the merits,” and AEDPA’s heightened standards apply. Id.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states
through the Fourteenth Amendment, provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause has been
interpreted as protecting criminal defendants from successive prosecutions for the same offense
after acquittal or conviction, as well as from multiple punishments for the same offense. Brown
v. Ohio, 432 U.S. 161, 165 (1977). The traditional test for a double jeopardy claim is the “same
elements” test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the
court to determine whether each charged offense “requires proof of an additional fact which the
other does not”). The Blockburger test is designed to deal with the situation where closely
connected conduct results in multiple charges under separate statutes. Under Blockburger, the
critical question is whether, in reality, the multiple charges constitute the same offense. Thus,
the Blockburger test focuses on whether the statutory elements of the two crimes charged are
duplicative. If the elements of the two statutes are substantially the same, then double jeopardy
is violated by charging the defendant under both.
However, “[w]here two offenses are the same for Blockburger purposes, multiple
punishments can be imposed if the legislature clearly intended to do so.” Bates v. Crutchfield,
No. 1:15-cv-817, 2016 WL 7188569, at *5 (S.D. Ohio Dec. 12, 2016) (citing Albernaz v. United
States, 450 U.S. 333, 344 (1981); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v.
Johnson, 467 U.S. 493, 499 (1984); Garrett v. United States, 471 U.S. 773, 779 (1985); White v.
Howes, 586 F.3d 1025, 1035 (6th Cir. 2009)). Thus, “[e]ven if the crimes are the same under
Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments,

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a court’s inquiry is at an end.” Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013) (citing Johnson,
467 U.S. at 499 n. 8; Hunter, 459 U.S. at 368–69). “Specifically, ‘[w]ith respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the legislature intended.’” Grable v.
Turner, No. 3:16-cv-273, 2016 WL 7439420, at *6 (S.D. Ohio Dec. 27, 2016) (quoting Jackson
v. Smith, 745 F.3d 206 (6th Cir. 2014)) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).
“When assessing the intent of a state legislature, a federal court is bound by a state court’s
construction of that state’s own statutes.” Id. (quoting Volpe v. Trim, 708 F.3d 688 (6th Cir.
2013)) (citing Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989)).
Here, Petitioner was charged and convicted on two separate criminal acts. Under these
circumstances, the state appellate court’s conclusion does not warrant federal habeas corpus
relief. See, e.g., Cowherd v. Million, 260 F. App’x 781, 786 (6th Cir. 2008) (holding that
convictions on separate criminal acts do not violate the Double Jeopardy Clause); Smith v. Mills,
98 F. App’x 433, 436 (6th Cir. 2004) (holding that convictions on separate attempts to penetrate
victim do not violate the Double Jeopardy Clause). “It is well established that the Double
Jeopardy Clause does not prohibit a state from defining conduct to constitute two separate
criminal offenses.” White v. Howes, 586 F.3d 1025, 1027–28 (6th Cir. 2009) (citing Missouri v.
Hunter, 459 U.S. 359, 368–69 (1983)). Petitioner thus has failed to establish that the state
appellate court’s decision rejecting this claim contravened or unreasonably applied federal law or
resulted in an unreasonable determination of the facts in light of the evidence presented.
Claim two is without merit.
IV.

RECOMMENDED DISPOSITION
For the foregoing reasons, the undersigned recommends that the Petition (Doc. 1) be

DENIED and this case be DISMISSED.
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Procedure on Objections to Report and Recommendation
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 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.
Date: February 22, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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