White v. Warden, Chillicothe Correctional Institution

Filing 10

REPORT AND RECOMMENDATION re 2 Petition for Writ of Habeas Corpus filed by Dennis White in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 7/26/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/12/18. (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
DENNIS WHITE,
CASE NO. 2:18-cv-193
Chief Judge Edmund A. Sargus, Jr.
Chief Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, CHILLICOTHE
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,
Petitioner’s Traverse, 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 Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
{¶ 2} On April 17, 2014, appellant was indicted on two counts of kidnapping, in
violation of R.C. 2905.01, and four counts of rape, in violation of R.C. 2907.02.
The complaint alleged acts arising on or about October 5 and November 13, 1995,
involving two victims, V.G. and T.L.
{¶ 3} The matter was tried to the bench beginning April 21, 2015. The first witness
for the state was V.G. In 1995, V.G. worked in Columbus performing housekeeping
services. V.G. and her three children resided with V.G.'s father at the time.
{¶ 4} In October 1995, V.G. was walking in the area of “18th and Monroe off of
Main Street,” after taking a bus to that location to look for her teenage daughter.
Unable to locate her daughter, V.G. decided to leave. As she was leaving the area,
V.G. encountered a male who “asked where was I going. He offered me a ride
home.” (Tr. Vol. I at 31.) V.G. got into the vehicle, and the man inquired if she
drank beer. V.G. responded that she did and the man drove to a store to purchase

beer. V.G. drinks “Old English” beer. (Tr. Vol. I at 35.) At trial, V.G. identified
plaintiff-appellee, the State of Ohio's exhibit No. 28 as two 40 ounce cans of “Old
English 800.” (Tr. Vol. I at 37.)
{¶ 5} The man then drove to the residence of V.G.'s father. V.G. and the man drank
beer on the porch; around midnight, V.G. and the man left her father's residence to
get some money. The man drove to East Livingston Avenue. He then “got very
violent” and said: “Bitch, quit playing games with me. You know what I want and
all this type stuff like that.” (Tr. Vol. I at 40.) V.G. spoke “smart back” at the man,
and he reacted “[r]eal violent” by stopping the vehicle suddenly. V.G. “felt afraid
because [she] didn't know where [she] was,” and she “had nothing to protect [her].”
(Tr. Vol. I at 41.)
{¶ 6} The man drove to the back of a school yard and stopped the vehicle, opening
the passenger side door. V.G. testified that he “forced himself on me inside the car,
pulling my clothes and my shorts off to the side.” According to V.G., he was
“sexually picking my clothes off and entering me, my leg off, you know, forcing
yourself inside someone. You're laying there trying to look and think something to
get away and you can't.” (Tr. Vol. I at 53.)
{¶ 7} The man “went into the trunk of the car. He had a belt.” He began pulling
V.G. from the vehicle, “[t]rying to tear [her] clothes.” He then dragged her toward
a tree. V.G. testified that he “[p]ut a belt around my neck and just trying to make
me suck his [penis]. And I remember biting it and taking off running and screaming.
And I guess [I] must have * * * made him nervous * * * because I remember him
running back, getting in the car.” (Tr. Vol. I at 42.) V.G. wrote down the license
plate number of the vehicle on her leg. (Tr. Vol. I at 49.) After the man left the area,
V.G. called the police from a phone booth.
{¶ 8} At trial, V.G. identified photographs taken of her at a hospital following the
incident; she stated that the pictures identified bruising to areas of her neck, arm,
knees, and back. V.G. spoke with a police detective at the hospital, and the detective
showed her a photographic array. V.G. permitted hospital personnel to conduct
testing with a rape kit “[b]ecause I was raped and assaulted and I didn't want * * *
diseases.” (Tr. Vol. I at 56.) V.G. testified she did not have consensual sex with the
man.
{¶ 9} Subsequent to the incident, V.G. thought she saw her assailant drive past her
father's house and make a threatening gesture with his hand. V.G. informed
detectives that she “didn't want to be involved any more” because she did not want
anyone to “come back and harm my father.” (Tr. Vol. I at 61.) V.G. also informed
police that she did not want to testify in court. At trial, V.G. identified appellant as
the individual who assaulted and raped her.
{¶ 10} On cross-examination, V.G. acknowledged she was using crack cocaine in
1995, and she recalled smoking crack cocaine with appellant on the evening at
2

issue. V.G. stated that around that time period she also worked at a “bootleg,” an
establishment where “they sell illegal drinks—beer, liquor.” (Tr. Vol. I at 87.) V.G.
became acquainted with prostitutes through her work at the “bootleg.” V.G. denied
that she had ever engaged in prostitute activity.
{¶ 11} In 1995, Columbus Police Officer Kevin Jackson was assigned to the third
shift on the east side of Columbus. On November 14, 1995, Officer Jackson was
dispatched to Brookway Road following a report of a rape assault. The officer met
a female, later identified as T.L., who stated that the incident occurred at
approximately 4:00 a.m. The alleged victim described her assailant as “a male black
who had [a] dark complexion, a thin mustache, was balding to no hair, between the
age of 22 to 23 years.” T.L. provided a description of the man's vehicle as a “dark
maroon or burgundy * * * newer model Chrysler New Yorker.” (Tr. Vol. I at 112.)
Officer Jackson forwarded that information to a detective.
{¶ 12} In 1995, T.L. resided on Brookway Road near Livingston Avenue. T.L.
worked at United Dairy Farmers, located at the corner of Livingston Avenue and
Barnett Road, within approximately a three-block radius of her residence. T.L. did
not have a vehicle at the time, and she walked to work. On November 13, 1995,
T.L. walked from her townhome on Brookway Road toward Livingston Avenue.
As she approached a traffic light near Livingston Avenue and Barnett Road, a
vehicle pulled up beside her and the driver asked if she needed a ride; the driver
was a black male, with a dark complexion. The man “asked me how far was I
headed. And I told him just going down the street to United Dairy Farmers. And he
said, I'm going in that location also.” T.L. testified: “I had been drinking that night
and I did get into the car with him.” (Tr. Vol. I at 126.)
{¶ 13} The driver “went past Livingston, turned up Barnett [and] went behind
United Dairy Farmers.” At that point, T.L. thought she “was in big trouble.” (Tr.
Vol. I at 127.) The man pulled a knife on T.L., pointing it toward her as he drove
behind United Dairy Farmers. He stopped the vehicle, “stepped up over the seat
over top of [her] and he told [her], bitch, gets your clothes off.” (Tr. Vol. I at 128.)
T.L. took her clothes off “[b]ecause he had a knife on me.” (Tr. Vol. I at 129.) He
first pushed T.L.'s head down between his legs, forcing his penis in her mouth. The
man then got on top of her. He held the knife to her throat and penetrated her vagina
“with his penis.” T.L. testified that she “was crying and * * * begging him not to
do it and he wouldn't stop. He wouldn't stop until he was finished.” (Tr. Vol. I at
130.) The man then “got off of me, set back in the seat of the car, he proceeded to
start the car up and tell me, bitch, that wasn't going to be all. The next time he was
going to fuck me in my ass and then kill me.” (Tr. Vol. I at 131.) The man “told me
that * * * wasn't going to be the last time, bitch.” (Tr. Vol. I at 118–19.)
{¶ 14} He started the vehicle and began to drive away. T.L. was in “fear of [her]
life,” and as the vehicle approached a stop sign she “jumped out of the car as it was
moving. * * * He sped off.” (Tr. Vol. I at 119.) T.L. contacted police, and told an

3

officer she was “assaulted” and that her “life was threatened.” (Tr. Vol. I at 120.)
T.L. was taken to a hospital for treatment, and a rape kit was administered.
{¶ 15} T.L. testified that none of the activity was consensual. At trial, she identified
state's exhibit Nos. 17 and 18 as photographs depicting the location where the
incident took place. T.L. stated that she fully cooperated with police during the
investigation. On cross-examination, T.L. acknowledged she was intoxicated on the
date of the incident, and that she was less than a block from United Dairy Farmers
when appellant stopped his vehicle.
{¶ 16} On November 14, 1995, Columbus Police Detective Kenneth Lawson
responded to a sexual assault dispatch in which the individual reporting the assault
had been taken to a hospital for a forensic examination. Detective Lawson
interviewed T.L. that evening at the hospital, and collected several items of clothing
and a rape kit containing slides and a swab; the detective submitted those items to
the police department's property room.
{¶ 17} A police investigator subsequently provided information to Detective
Lawson, advising him to “look at Dennis White.” The investigator informed
Detective Lawson that the same parking lot “had been used in a prior sexual assault
that he was investigating.” The investigator showed Detective Lawson “a photo of
a license plate that was written on that victim's thigh” in the prior case; the
investigator “[s]aid that through his investigation he learned that Dennis [White]
was the brother of the person who had that car.” (Tr. Vol. I at 168.)
{¶ 18} Detective Lawson prepared a photographic array which included appellant's
picture. He showed the array to T.L., who stated that the individual in position
number five had a similar skin tone as her assailant, and that the individual in
position number six had similar eyes. She did not unequivocally identify any of the
individuals in the array as her assailant. Detective Lawson testified that the
investigation ended at that point because T.L. “was not interested in pursuing the
case and so we classified it as * * * exceptionally cleared.” According to the
detective, “[t]he lab results came back saying that there was evidence with which
we could work, which is why I prepared a search warrant in anticipation of needing
blood; but we deferred to [T.L.'s] interest at that time, and she did not want to pursue
the case.” (Tr. Vol. I at 183.) T.L. told the detective: “I'm not comfortable pursuing
a case if I can't say positively who it was.” (Tr. Vol. I at 202.)
{¶ 19} Columbus Police Detective Timothy Hedrick, a member of the department's
sexual assault unit, testified that he had reviewed old case files pertaining to V.G.
and T.L. At trial, Detective Hedrick identified a number of exhibits from those
cases, including property submitted to the Ohio Bureau of Criminal Investigation
(“BCI”) lab for analysis. The department “had a CODIS [Combined DNA Index
System] hit come back from the lab identifying the suspect.” (Tr. Vol. II at 249.)
Detective Hedrick subsequently contacted V.G. and T.L., and both individuals
indicated they were willing to cooperate. After obtaining the “CODIS match * * *
4

from BCI,” a warrant was issued and appellant was arrested. (Tr. Vol. II at 251.)
Detective Hedrick obtained DNA swabs from appellant at that time and submitted
those samples to the BCI lab. According to Detective Hedrick, “[t]he main reason
for reopening a case is due to the advancement of the science [and] what the lab
can do with the specific property items.” (Tr. Vol. II at 246–47.) The detective
testified that the basis for charging appellant “was basically the DNA results.” (Tr.
Vol. II at 275.)
{¶ 20} Police detectives, including Detective Hedrick, interviewed appellant, and
the state played a recording of that interview at trial. During the interview, appellant
told detectives he did not “even know those women.” (Tr. Vol. II at 263.) He also
denied giving rides to two women in 1995 in the geographical areas indicated by
the alleged victims.
{¶ 21} Hallie Garofalo, a forensic scientist with the DNA unit of BCI, testified that
she analyzed DNA collected from V.G. and appellant and prepared a DNA report,
dated May 5, 2014, summarizing those test results. Based on the evidence collected,
Garofalo opined that appellant “cannot be excluded as the source of the DNA in the
sperm fraction of the vaginal slides.” (Tr. Vol. I at 214.)
{¶ 22} Garofalo also analyzed DNA collected from T.L. and appellant. Garofalo
testified that “[d]ifferential extraction of the vaginal slides * * * resulted in a
mixture consistent with contributions from [T.L.] and Dennis White.” Garofalo
opined that appellant “cannot be excluded as a contributor to the DNA from the
vaginal slide.” (Tr. Vol. I at 219.)
{¶ 23} At trial, appellant testified on his own behalf, and he acknowledged a 1998
burglary conviction for which he received a seven-year sentence. Appellant stated
he was addicted to crack in 1995, and that he engaged in sexual activities with
prostitutes at that time.
{¶ 24} Appellant gave the following testimony with respect to his encounter with
V.G. on October 5, 1995:
I met [V.G.] as I was driving down the street. It was kind of late at night and she
was walking down the street and she flagged me over. I pulled over and we talked.
And I asked her does she have a stem. A stem is a crack pipe. And she said yes. So
I told her I had some crack, you know, you want to get high with me. So she said
yes. She got in the car. And in the process of us talking we decided that if I smoke
some crack with her she would perform oral sex on me and I will be able to have
sex with her.
(Tr. Vol. II at 302.)
{¶ 25} Appellant, who was driving a 1990 Pontiac, stated that he stopped the
vehicle because “she was a prostitute. I knew she was a prostitute and I knew she
probably knew where I could go get some crack.” Appellant believed the woman
5

was a prostitute by “the way she was acting.” (Tr. Vol. II at 304.) According to
appellant, after V.G. got inside the vehicle “we just like drive and pull over, smoke,
drive, pull over, smoke, pull over, smoke * * * as I recall over towards Scottwood
and Barnett.” (Tr. Vol. II at 308–09.)
{¶ 26} Appellant stated he was “rubbing her leg. She's rubbing on my leg.”
Appellant told the woman: “You know, I want some head. Can you give me some
head? Yeah, sure. How much are you going to smoke with me? We going to smoke
all of this.” (Tr. Vol. II at 309.) Appellant testified: “We just had sex and she gave
me some head.” Appellant stated they were together “about four hours.” (Tr. Vol.
II at 310.) He denied driving to the home of V.G.'s father; he also denied observing
two bottles of Old English 800, or that he saw V.G. drinking beer.
{¶ 27} Appellant testified that “it got to the point where I got tired of driving and
pulling over, hitting, driving, pulling over, hitting. I got tired so I knew a place we
could go where it wouldn't be no problem, we just sit there.” (Tr. Vol. II at 311–
12.) He then drove to a location on Scottwood Road and turned off the engine.
Appellant denied forcing V.G. to have sex, and stated she willingly engaged in oral
sex. He also denied using his belt to choke her during the incident. According to
appellant, the encounter ended when they had a disagreement over her taking the
last “dope that was there that was mine.” (Tr. Vol. II at 315.) Appellant told her to
get out of the vehicle, and he drove away.
{¶ 28} During direct examination, defense counsel asked appellant why he told
detectives he did not use drugs in 1995, and appellant responded: “At that time it
was—actually talking about it, it's like a trigger to me. And I was so shocked for
him to say that, I just says no.” (Tr. Vol. II at 317.) When asked why he told
detectives he was not with T.L. on November 13, 1995, appellant stated that he
“couldn't remember who [he] was with.” (Tr. Vol. II at 318.)
{¶ 29} Appellant testified that he first encountered T.L. at a crack house where he
observed her go into a room with a man. Later, on November 13, 1995, appellant
was driving down Livingston Avenue and “she flagged me down.” (Tr. Vol. II at
319.) Appellant thought she was a prostitute. Appellant asked T.L. “did she know
where I could get some dope.” (Tr. Vol. II at 320.) Appellant testified that “[s]he
got in the car and we drove over to * * * to get some dope.” (Tr. Vol. II at 321.)
Appellant gave her $65 and she went inside and returned with drugs.
{¶ 30} They drove away and were “[j]ust riding around pulling over to * * *
[s]moke. Trick. She give me some head. I, you know, have sex with her and pull
off in that spot and, you know, hit it again, pull over, find another spot.” (Tr. Vol.
II at 322–23.) They eventually stopped at the location depicted in state's exhibit No.
18. He denied carrying a knife that evening. Appellant testified they had consensual
sex at the location.
{¶ 31} Appellant gave the following account as to how the encounter ended:
6

Well, after we got down to the last bit of the dope, she asked me did I have any
more. I says, no, I don't, I don't have any more. She says, well, you told me that *
* * I'm going to be able to take some back to my friend. I said you didn't mention
anything to me about no guy, no friend or nothing. So she said yes, I did, yes, I did.
I said, no, you didn't. She got to be belligerent with me, you know, argumentative,
you know. She just like getting loud and acting, you know, un—just real unruly,
you know, no. I says no, get out. Get out. I asked her to get out the car. She got out.
(Tr. Vol. II at 331–32.)
{¶ 32} On cross-examination, appellant stated he had previously been convicted of
two counts of burglary. At the time of the events, appellant lived with his parents
at a residence on Quigley Road, Columbus, located near Scottwood Road, and the
vehicle he was driving was registered in his brother's name. Appellant
acknowledged lying to detectives about whether he used drugs in 1995. He also
acknowledged engaging in fellatio and sexual intercourse with V.G. on October 5,
1995, as well as engaging in fellatio and sexual intercourse with T.L. on November
13, 1995.
{¶ 33} During closing argument, the state argued that the primary issue in the case
was whether appellant utilized force during the encounters with V.G. and T.L. On
May 6, 2015, the trial court announced its verdict from the bench, finding appellant
guilty of all counts. On May 11, 2015, the state filed supplemental discovery with
respect to hospital records of V.G. transmitted by Grant Hospital to the state after
the trial had concluded. Appellant's counsel subsequently filed a motion for mistrial
and for new trial, and the state filed a memorandum contra. On July 8, 2015, the
trial court conducted a hearing on the motion. By entry filed July 31, 2015, the court
denied appellant's motion for mistrial and for new trial.
{¶ 34} The trial court conducted a sentencing hearing on August 5, 2015. During
the hearing, counsel for appellant requested that the trial court sentence appellant
under the current sentencing laws as opposed to the sentencing laws in effect at the
time of the offenses. The trial court determined that appellant “should be sentenced
as the law was in 1995.” (Tr. Vol. IV at 4.) By judgment entry filed August 11,
2015, the trial court sentenced appellant to indeterminate sentences of 11 to 25
years on each count, with Counts 1, 2, and 3 to be served concurrent to each other,
Counts 4, 5, and 6 to be served concurrent to each other, and Counts 2, and 5 to be
served consecutive to each other.
{¶ 35} On appeal, appellant sets forth the following four assignments of error for
this court's review:
Assignment of Error 1. The manifest weight of the evidence does not demonstrate
beyond a reasonable doubt that Mr. White kidnapped and raped [V.G.].

7

Assignment of Error 2. The manifest weight of the evidence does not demonstrate
beyond a reasonable doubt that Mr. White kidnapped or raped [T.L.].
Assignment of Error 3. Mr. White was deprived of effective assistance of trial
counsel.
Assignment of Error 4. Mr. White's sentence is void because he was sentenced
under the wrong statute.
State v. White, 85 N.E. 3d 1170, 1172-78 (Ohio App. 10th 2017). On March 7, 2017, the appellate
court affirmed the judgment of the trial court. Id. On July 26, 2017, the Ohio Supreme Court
declined to accept jurisdiction of the appeal. State v. White, 150 Ohio St.3d 1411 (2017).
On March 6, 2018, Petitioner filed this pro se Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. As his sole claim for relief, Petitioner asserts that he was denied the effective
assistance of trial counsel because his attorney failed to file a motion to dismiss the Indictment
based on excessive pre-indictment delay. It is the position of the Respondent 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
determinations. The United State Supreme Court describes the AEDPA as “a formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court” and
emphasizes that federal 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, 571 U.S. 12, 19-20 (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) ).
8

Under the AEDPA, 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:
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.

9

Coley, 706 F.3d at 748–49. In order for a federal court to find that a state court’s application of
Supreme Court precedent was unreasonable, “the state court’s application must have been
‘objectively unreasonable,’ not just incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–
21, (2003) (internal citations omitted) (citing Williams v. Taylor, 529. U.S. at 409); 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 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 Fed.Appx.
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 the state court at the time that it rendered its decision. Cullen v. Pinholster, 563 U.S.
170, 181 (2011). Put simply, “review under § 2254(d)(1) focuses on what a state court knew and
did.” Id. at 182. The burden of satisfying the standards set forth in § 2254 rests with the petitioner.
Id. at 181.
Application
The state appellate court rejected Petitioner’s claim as follows:

10

{¶ 53} In order to establish ineffective assistance of counsel, a defendant must
demonstrate “first, that counsel's performance was deficient and, second, that the
deficient performance prejudiced the defense so as to deprive the defendant of a
fair trial.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d
1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). In order to show prejudice, the defendant “must prove that
there exists a reasonable probability that, were it not for counsel's errors, the result
of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraph three of the syllabus. Further, “[i]n order to prevail
on a claim of ineffective assistance of counsel in a case involving a failure to make
a motion on behalf of a defendant, the defendant must show ‘(1) that the motion *
* * thereto was meritorious, and (2) that there was a reasonable probability that the
verdict would have been different had the motion been made.’“ State v. Kring, 10th
Dist. No. 07AP-610, 2008-Ohio-3290, 2008 WL 2588572, ¶ 55, quoting State v.
Lawhorn, 3d Dist. No. 11-04-19, 2005-Ohio-2776, 2005 WL 1323111, ¶ 35.
{¶ 54} In general, the primary safeguard against pre-indictment delay is the
applicable statute of limitations. State v. Carter, 5th Dist. No. 07-CA-4, 2007-Ohio5259, 2007 WL 2852157, ¶ 16. Additionally, the Due Process Clause of the Fifth
Amendment “provides limited protection against preindictment delay.” State v.
Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 97. The Supreme
Court of Ohio has “recognized a comparable due-process protection under Article
I, Section 16 of Ohio Constitution.” Id. A defendant asserting a due-process
violation based on pre-indictment delay “must present evidence establishing
substantial prejudice to his right to a fair trial.” Id. at ¶ 98. If a defendant makes a
preliminary showing of substantial prejudice, “then the burden shifts to the state to
present evidence of a justifiable reason for the delay.” Id. at ¶ 99. The Supreme
Court has observed, however, that “[t]he burden upon a defendant seeking to prove
that preindictment delay violated due process is ‘“nearly insurmountable,”‘
especially because proof of prejudice is always speculative.” Id. at ¶ 100, quoting
United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir. 2012), quoting
United States v. Rogers, 118 F.3d 466, 477 (6th Cir. 1997), fn.10.
{¶ 55} Appellant contends that a court considering the issue of pre-indictment delay
is first required to weigh the prejudice to the accused from the delay against the
state's reason for the delay, and is then required to make a decision that provides
the “fundamental fairness” required by the Due Process Clause. In arguing that his
trial counsel was ineffective in failing to file a motion to dismiss, appellant focuses
primarily on the state's reason for delaying the indictment (i.e., that the alleged
victims were not willing to cooperate in the investigation), and asserts that the
state's reason is worthy of zero weight. Based on his claim that the state's reason
for the pre-indictment delay is worthy of zero weight, appellant maintains he is only
required to show the “slightest prejudice” in order to tip the balance in favor of
dismissal. In support of his argument, appellant relies in part on several cases from
the Eighth District Court of Appeals, including State v. Dixon, 2015-Ohio-3144, 40

11

N.E.3d 601, State v. Mack, 8th Dist. No. 100965, 2014-Ohio-4817, 2014 WL
5500021, and State v. Jones, 2015-Ohio-2853, 35 N.E.3d 606 (“Jones I”).
{¶ 56} At the time of oral argument in this case, one of the decisions relied on by
appellant, Jones I (and which was cited with approval by the court in Mack), was
pending before the Supreme Court. We note that the Supreme Court recently
reversed the Eighth District Court of Appeal's majority decision in Jones I. See
State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688 (“Jones
II”).FN1 Because Jones II is of significance to issues raised in the instant
assignment of error, we begin with a discussion of both Jones I and II.
FN1: At the time of oral argument, counsel for appellant acknowledged that the
decision of the Eighth District Court of Appeals in Jones I was pending before the
Supreme Court. Counsel for appellant also filed, subsequent to oral argument,
supplemental authority noting the Supreme Court’s recent decision in Jones II.
{¶ 57} Under the facts of Jones I, the defendant filed a motion in the trial court to
dismiss his indictment, alleging that the state's 20–year delay in bringing the
indictment caused him actual prejudice in defending against a charge of rape. The
defendant maintained that he and the victim had engaged in consensual sex in 1993,
and the defendant claimed he told police at that time of a consensual encounter.
Further, the defendant's mother passed away in 2011, and the defendant argued that
his mother would have been able to testify that he and the alleged victim were more
than just casual acquaintances and she did not hear anything unusual at the home
on the date in question. The trial court granted the defendant's motion to dismiss,
and the state appealed that determination.
{¶ 58} In Jones I, the Eighth District Court of Appeals affirmed the judgment of
the trial court in a two-to-one decision in which the majority concluded the
defendant suffered actual prejudice. Specifically, the majority decision cited
evidence that “the identity of the defendant as the accused perpetrator was known
from the beginning, * * * the state barely investigated the case and closed it within
one week of the start of its investigation, and * * * no further investigation or
technological advances occurred in the time between the initial investigation and
the indictment.” Id. at ¶ 47.
{¶ 59} In reaching that determination, the majority evaluated the defendant's claim
of actual prejudice “in terms of basic concepts of due process and fundamental
justice.” Id. Furthermore, the court in Jones I “considered the reasons for the
preindictment delay prior to determining actual prejudice.” (Emphasis added.) State
v. Smith, 8th Dist. No. 103586, 2016-Ohio-8043, 2016 WL 7158601, ¶ 35, citing
Jones I.
{¶ 60} In Jones I, the dissent disagreed with the majority's “application of a less
stringent standard for assessing actual prejudice in preindictment delay claims,”
asserting that “[t]his new so-called ‘due process and fundamental justice’ standard
12

offered by the majority is in conflict with the long-standing actual or substantial
prejudice standard that has been in play over the past three decades in Ohio.” Id. at
¶ 51 (Gallagher, J., dissenting). The dissent further argued that “a defendant must
demonstrate actual prejudice free of speculation before a court considers whether
there is a justifiable reason for the delay.” Id. at ¶ 52. According to the dissent,
“shifting the burden to the state to demonstrate a justifiable reason for delay without
a showing of actual prejudice circumvents an extended statute of limitations period,
invariably defeating legislative intent.” Id. at ¶ 55.
{¶ 61} On further appeal by the state, the Supreme Court in Jones II reversed the
judgment of the Eighth District Court of Appeals, reiterating the “firmly established
* * * burden-shifting framework for analyzing a due-process claim based on
preindictment delay.” Id. at ¶ 13. Under that analysis, “[o]nce a defendant presents
evidence of actual prejudice, the burden shifts to the state to produce evidence of a
justifiable reason for the delay.” Id.
{¶ 62} In Jones II, the state argued on appeal that the Eighth District's majority
opinion constituted a departure from “well-established precedent requiring a
defendant to establish actual prejudice—separate from the state's reasons for the
delay—before the burden shifts to the state to justify its delay.” Id. at ¶ 14. The
Supreme Court agreed, finding that the majority “blurred the distinctions between
the existence of actual prejudice and the lack of a justifiable reason for the delay by
focusing almost exclusively on the actions and inactions of the police.” Id. at ¶ 15.
Specifically, the Supreme Court held that the “majority's focus on the actions and
inactions of the police * * * demonstrates the majority's abandonment of the twostep, burden-shifting analysis for determining whether preindictment delay
constitutes a due-process violation.” Id. at ¶ 18. Thus, “[b]y considering the reasons
for the state's delay before independently determining whether Jones established
actual prejudice because of that delay, the Eighth District majority erred.” Id.
{¶ 63} The Supreme Court then turned to the state's second primary argument, i.e.,
that the Eighth District majority “ignored precedent by concluding that Jones
established actual prejudice.” Id. at ¶ 19. According to the state, the record
contained “only speculation regarding the exculpatory value of the allegedly lost or
otherwise unavailable evidence.” Id.
{¶ 64} In examining the issue of actual prejudice, the Supreme Court noted that
“[a] determination of actual prejudice involves ‘“a delicate judgment”‘ and a caseby-case consideration of the particular circumstances.” Id. at ¶ 20, quoting State v.
Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United
States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Further,
the court “must ‘consider the evidence as it exists when the indictment is filed and
the prejudice the defendant will suffer at trial due to the delay.’“ Id. quoting Walls
at ¶ 52. The court also acknowledged its prior decisions suggesting that “speculative
prejudice does not satisfy the defendant's burden.” Id.

13

{¶ 65} In Jones II, the Supreme Court specifically “reject[ed] the Eighth District
majority's application of an amorphous standard based on concepts of fundamental
justice to determine the existence of actual prejudice.” Id. at ¶ 23. The Supreme
Court observed that “[e]ach time this court has considered preindictment delay, we
have scrutinized the claim of prejudice vis-à -vis the particular evidence that was
lost or unavailable as a result of the delay and, in particular, considered the
relevance of the lost evidence and its purported effect on the defense.” Id.
{¶ 66} The Supreme Court cited several of its prior decisions, State v. Luck, 15
Ohio St.3d 150, 472 N.E.2d 1097 (1984), and Adams, as offering guidance in
considering the issue of actual prejudice. In Luck, the defendant asserted he had
suffered prejudice from a 15–year delay in prosecution where two key witnesses
had died, including one witness who was purportedly present at the shooting
victim's apartment at the time she was killed; further, under the facts of that case,
all of the tape-recorded interviews with potential witnesses and suspects compiled
by the police department had been destroyed. See id. at 154, 472 N.E.2d 1097. The
court in Luck found the defendant was “‘obviously prejudiced by not being able to
seek verification of her story from [the witness purportedly with the defendant at
the time of the alleged murder] and thereby establish mitigating factors or a defense
to the charge against her.’“ Jones II at ¶ 25, quoting Luck at 158, 472 N.E.2d 1097.
Accordingly, “the proven unavailability of specific evidence or testimony that
would attack the credibility or weight of the state's evidence against a defendant,
and thereby aid in establishing a defense, may satisfy the due-process requirement
of actual prejudice.” Id. The death of a potential witness, however, “will not always
constitute actual prejudice.” Id. at ¶ 26. In the Adams decision, the Supreme Court
found no actual prejudice from pre-indictment delay where the defendant “did not
explain what evidence the deceased witness ‘might have offered,’ and * * * the
deceased witness had actually implicated Adams in the murder before he died.” Id.
quoting Adams at ¶ 103.
{¶ 67} In Jones II, the Supreme Court agreed with the Eighth District's “dissent's
concerns about a defendant's reliance on mere speculation to support a claim of
actual prejudice.” Id. at ¶ 27. In this respect, “the possibility of faded memories,
inaccessible witnesses, and lost evidence is insufficient to demonstrate actual
prejudice.” Id. Rather, “[t]hose are ‘the real possibilit[ies] of prejudice inherent in
any extended delay,’ and statutes of limitations sufficiently protect against them.”
Id. at ¶ 21, quoting Marion at 326, 92 S.Ct. 455. Instead, “[a]ctual prejudice exists
when missing evidence or unavailable testimony, identified by the defendant and
relevant to the defense, would minimize or eliminate the impact of the state's
evidence and bolster the defense.” Id. at ¶ 28.
{¶ 68} We recognize that the parties in this case did not have the benefit of the
decision in Jones II at the time of briefing before this court. In light of that decision,
however, we find unpersuasive appellant's argument that he need only demonstrate
the “slightest prejudice” in order to tip the balance in favor of dismissal based on
his assertion that the state's reason for the pre-indictment delay is worthy of zero
14

weight. As noted, the Eighth District's majority in Jones I focused primarily on the
inactivity of police, and “considered the reasons for the preindictment delay prior
to determining actual prejudice.” Smith at ¶ 35, citing Jones I. In Jones II, however,
the Supreme Court “determined that actual prejudice is the first step in establishing
unjustifiable preindictment delay.” Smith at ¶ 35, citing Jones II at ¶ 13. See also
State v. Rusnak, 7th Dist. No. 15 JE 0002, 2016-Ohio-7820, 2016 WL 6835551, ¶
8, citing Jones II at ¶ 18 (noting “[t]he state has no duty to present evidence
justifying a delay until the defendant establishes actual prejudice”).
{¶ 69} In the present case, appellant asserts that the record shows his defense was
prejudiced by pre-indictment delay in the following five respects: (1) at the time of
trial, V.G. was no longer a crack addict and, therefore, she “almost certainly”
presented herself as a more credible and reliable witness in 2015 than she would
have in 1995, (2) T.L. “probably” presented herself as a more credible and reliable
witness in 2015 than in 1995 in light of her testimony that she had an alcohol
problem in 1995, (3) facing accusers of such “dubious character,” appellant “almost
certainly” would not have waived his constitutional right to a jury trial had he been
prosecuted in 1995, (4) the passage of two decades likely influenced how the trier
of fact would have viewed appellant's credibility because his account of cruising
the city seeking to exchange crack for sex seems less plausible now to “modern
ears” than it would have seemed 20 years ago, and (5) the passage of time inevitably
affects memories.
{¶ 70} As cited above, actual prejudice exists “when missing evidence or
unavailable testimony, identified by the defendant and relevant to the defense,
would minimize or eliminate the impact of the state's evidence and bolster the
defense.” Jones II at ¶ 28. Further, proof of actual prejudice “must be specific,
particularized and non-speculative.” State v. Stricker, 10th Dist. No. 03AP-746,
2004-Ohio-3557, 2004 WL 1488730, ¶ 36.
{¶ 71} Here, appellant does not point to any particular missing evidence or
unavailable witnesses. To the extent appellant argues there is a possibility that V.G.
or T.L. would have presented themselves as more credible witnesses in 2015 than
in 1995, or that he almost certainly would not have waived his right to a jury trial
in 1995, such claims are speculative and do not meet the actual or substantial
prejudice requirement. Similarly, whether the passage of time would have
influenced “modern ears” to find appellant's account less plausible is also
speculative.
{¶ 72} Appellant also contends the passage of time inevitably affects memories,
and that both V.G. and T.L. did not remember certain details during their testimony,
including V.G.'s testimony that she did not recall what year she stopped using crack,
and T.L.'s statement that she did not remember whether she was going to work on
the date of the incident. However, “the possibility of faded memories, unavailable
witnesses, and lost or destroyed evidence does not, in and of itself, constitute actual
prejudice.” State v. Smith, 8th Dist. No. 104203, 2016-Ohio-7893, 2016 WL
15

6906391, ¶ 19, citing Jones II at ¶ 21. On review of the record presented, including
the testimony of V.G. and T.L., we do not find that appellant demonstrated
substantial prejudice from the fact these witnesses may not have recalled certain
details. See, e.g., State v. Battiste, 8th Dist. No. 102299, 2015-Ohio-3586, 2015 WL
5155686, ¶ 51 (nothing in the record to suggest appellant was prejudiced by
witnesses inability to recall certain details; defense counsel, in fact, utilized the
inability of one witness to recall certain details to appellant's advantage); Smith,
2016-Ohio-7893, 2016 WL 6906391 at ¶ 20 (rejecting appellant's claim that
memories of the offense were severely compromised by nearly 20–year delay;
record belied appellant's assertion as victim's account of rape on reopening of case
was consistent account as reported at time of incident); State v. Clark, 12th Dist.
No. CA2007-03-037, 2008-Ohio-5208, 2008 WL 4456996, ¶ 49 (“although
appellant argues that he was prejudiced by defense witnesses' faded memories, he
has not shown how the witnesses' recollection of the altercation would have
changed the outcome of the trial”).
{¶ 73} On review of the record of proceedings and relevant case law, including
Jones II, we find that appellant has not established a reasonable probability of
success had trial counsel filed a motion to dismiss on the basis of pre-indictment
delay. As such, appellant was not prejudiced as a result of his trial counsel's alleged
ineffectiveness. Further, because appellant has failed to establish the prejudice
prong of Strickland, we need not consider the state's reasons for the pre-indictment
delay. Adams at ¶ 107.
State v. White, 85 N.E. 3d at 1181-86.
Ineffective Assistance of Counsel
“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . .
. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principals governing claims
of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland
requires a petitioner claiming ineffective assistance of counsel to demonstrate that his counsel’s
performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; Hale v.
Davis, 512 F. App’x 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient performance by
counsel by demonstrating ‘that counsel’s representation fell below and objective standard of

16

reasonableness.” Poole v. MacLaren, 547 F. App’x 749, 754 (6th Cir. Dec. 5, 2013) (quoting
Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and citing
Strickland, 466 U.S. at 687). To make such a showing, a petitioner “must overcome the ‘strong [
] presum[ption]' that his counsel ‘rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Poole, 547 F. App’x at 754 (quoting
Strickland, 466 U.S. at 687). “To avoid the warping effects of hindsight, [courts must] ‘indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’“ Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466
U.S. at 689).
The United States Supreme Court has cautioned federal habeas courts to “guard against the
danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).”,
562 U.S. 86, 105 (2011). The Court observed that while “‘[s]urmounting Strickland’s high bar is
never . . . easy.’ . . . [e]stablishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is even more difficult. . . .” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371
(2010) ) (and citing Strickland, 466 U.S. at 689).
The Court instructed that the standards created under Strickland and § 2254(d) are both
“‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations
omitted). Thus, when a federal habeas court reviews a state court’s determination regarding an
ineffective assistance of counsel claim, “[t]he question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.

17

Preindictment Delay
In United States v. Marion, 404 U.S. 307, 322 (1971), the United States Supreme Court
held that applicable statutes of limitations provide “predictable legislatively enacted limits on
prosecutorial delay” and provide “the primary guarantee against bringing overly stale criminal
charges.” Id. at 320. The Speedy Trial Clause of the Sixth Amendment is not triggered until a
formal indictment or information is filed or “the actual restraints imposed by arrest and holding to
answer a criminal charge” have occurred. United States v. Lovasco, 431 U.S. 783, 788–89 (1977)
(quoting United States v. Marion, 404 U.S. 307, 320 (1971)); see also Doggett v. United States,
505 U.S. 647, 655 (1992). The Due Process Clause of the Fifth Amendment requires dismissal of
the charges based on pre-indictment delay only where it is shown that the delay caused “substantial
prejudice” to the Petitioner’s right to a fair trial and the delay was “an intentional device to gain
tactical advantage over the accused.” United States v. Marion, 404 U.S. at 322. Thus, to obtain
dismissal of the charges based on pre-indictment delay, the defendant must show that he was
substantially prejudiced by the delay and that the delay was “an intentional device by the
government to obtain a tactical advantage.” Parker v. Burt, 595 F. App’x 595, 601 (6th Cir. 2015)
(quoting United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992)). The Supreme Court has
explained:
[I]nvestigative delay is fundamentally unlike delay undertaken by the Government
solely “to gain tactical advantage over the accused,” United States v. Marion, 404
U.S., at 324, 92 S.Ct., at 465, precisely because investigative delay is not so onesided. Rather than deviating from elementary standards of “fair play and decency,”
a prosecutor abides by them if he refuses to seek indictments until he is completely
satisfied that he should prosecute and will be able promptly to establish guilt
beyond a reasonable doubt. Penalizing prosecutors who defer action for these
reasons would subordinate the goal of “orderly expedition” to that of “mere speed.”
This the Due Process Clause does not require. We therefore hold that to prosecute
a defendant following investigative delay does not deprive him of due process, even
if his defense might have been somewhat prejudiced by the lapse of time.

18

Lovasco, at 795–796 (footnotes and citations omitted). “Thus, particularly where the delay is
investigative rather than intended to gain a tactical advantage over the accused, preindictment
delay does not offend the Fifth Amendment.” United States v. Brown, 959 F.2d 63, 65 (6th Cir.
1992) (citing Lovasco, at 795). “A defendant bears a ‘heavy burden’ on a claim that a pre-arrest
delay violated due process.” Mayes v. Hoffner, No. 2:13-cv-12742, 2016 WL 3385084, at *3 (E.D.
Mich. June 20, 2016) (citing United States v. Baltimore, No. 10-3305, 2012 WL 2379890, *3 (6th
Cir. June 6, 2012) (citing United States v. Rogers, 118 F.3d 466, 477 n. 10 (6th Cir. 1997) (noting
that “[t]he standard for pre-indictment delay is nearly insurmountable, especially because proof of
actual prejudice is always speculative”)).
Application
Petitioner argues that the preindictment delay violated Barker v. Wingo, 407 U.S. 514
(1972), and that the state appellate court improperly required him to establish prejudice. Petition
(ECF No. 2, PAGEID # 22-23.) However, Barker does not apply to cases of preindictment delay,
but to cases involving post-indictment delay. See Parker v. Burt, 595 F. App’x at 602 (“Courts
employ a balancing test to determine whether post-indictment delay violates the Sixth
Amendment” and consider the “[l]ength of delay, the reason for the delay, the defendant's assertion
of his right, and prejudice to the defendant.”) (citing Barker, 407 U.S. at 530)). Thus, the balancing
test set forth in Barker does not apply here. Further, Petitioner does not allege, and the record does
not reflect, that the delay in bringing charges against him was the result of any intentional device
by the prosecution to obtain a tactical advantage. Instead, any delay was the result of the victims’
reluctance to prosecute, and the subsequent development of DNA evidence. Therefore, Petitioner
cannot establish a due process violation.

19

The due process rights of a defendant are not violated absent a showing of bad faith on the
part of the prosecution or “proof of intentional government delay to gain a tactical advantage over
the defendant.” United States v. Norris, 501 F.Supp.2d 1092, 1099 (S.D. Ohio 2007) (citing United
States v. Talbot, 825 F.2d 991, 1000 (6th Cir. 1987); United States v. Lawson, 780 F.2d 535, 541
(6th Cir. 1985); United States v. Gouveia, 467 U.S. 180, 192 (1984)); see also Parker v. Burt, 595
F. App’x 595, 601 n.4 (6th Cir. 2015) (for additional citations). Further, the state appellate court
has determined that excessive preindictment delay likewise did not violate Ohio law. This Court
defers to that determination. See Dukles v. Chuvalas, No. 1:15-cv-2164, 2017 WL 3447830, at *7
(N.D. Ohio July 5, 2017) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991)). Therefore, Petitioner has failed to establish the denial of
the effective assistance of counsel under Strickland based on his attorney’s failure to file a motion
to dismiss the Indictment for excessive preindictment delay.
Recommended Disposition
For the foregoing reasons, 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

20

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
Chief United States Magistrate Judge

21