Adams v. Warden, Lebanon Corretional Institution

Filing 12

REPORT AND RECOMMENDATIONS. It is respectfully RECOMMENDED that Petitioner's §2254 petition for a writ of habeas corpus be DISMISSED with prejudice and this case be TERMINATED on the Court's docket. Reasonable jurists would not disagre e with the recommended disposition on Ground One. Therefore, if Petitioner seeks to appeal, the Court RECOMMENDS that he be DENIED a certificate of appealability on Ground One. It is possible, however, that reasonable jurists would disagree with the recommended disposition on Ground Two. Therefore, if Petitioner seeks to appeal, the Court RECOMMENDS that Petitioner be GRANTED a certificate of appealability on Ground Two and leave to proceed informa pauperis on appeal. Objections to R&R due by 4/27/2012. Signed by Magistrate Judge Michael J Newman on 4/10/2012. (mdf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHARLES E. ADAMS,

:

Petitioner,

Case No. 3:10-cv-315
:
District Judge Walter Herbert Rice
Magistrate Judge Michael J. Newman

vs.
:
WARDEN, Lebanon Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATION1

Pursuant to 28 U.S.C. § 2254, Petitioner Charles Adams (“Petitioner” or “Adams”) brings
this petition for a writ of habeas corpus. Proceeding pro se, Petitioner pleads two grounds for relief:
GROUND ONE: Petitioner was denied due process as a result of trial court error
when the trial court found Petitioner guilty of all seven counts and did not merge any
of the counts.
Supporting facts: Petitioner was convicted of two counts of Rape, one count of
Kidnapping, and one count Gross Sexual Imposition. If these convictions are to
stand, Petitioner would have been convicted and sentenced four times for the same
action.
GROUND TWO: Petitioner was denied the effective assistance of counsel in
violation of the Fifth, Sixth and Fourteenth Amendments of the United States
Constitution.
Supporting facts: Petitioner’s trial counsel owen Petitioner a duty to provide
Petitioner with all the information to make an educated decision on the success or
failure in the event of a trial and the likely resulting sentence. Trial counsel failed
in this duty to Petitioner rendering his assistance ineffective and prejudicial.
Doc. 2 at PageID 34-36 (quoting verbatim) (capitalization altered).

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

I. PROCEDURAL HISTORY
In May 2006, Petitioner was indicted on seven counts: two counts of rape; and one count
each of kidnapping, aggravated robbery, victim intimidation, gross sexual imposition, and robbery.
Doc. 7-2 at PageID 84-87. He initially pled not guilty. Id. at PageID 88. He then filed a motion
to suppress statements he made to the police, id. at PageID 89-91, and a motion to dismiss, id. at
PageID 94-96. The trial court denied both motions. Id. at PageID 92-93, 102. He also filed a
motion in limine. Id. at PageID 103-05.
On September 13, 2007, Petitioner pled no contest to all seven counts in the indictment. Id.
at PageID 106 -11; doc. 8-1 at PageID 313. In exchange for Petitioner’s agreement to plea, two of
his pending probation revocation cases were dismissed. See doc. 8-1 at PageID 295-96. The trial
court accepted his plea and found him guilty on all counts. Id. at PageID 313-14. On October 26,
2007, Petitioner was sentenced to a total of twenty years imprisonment. Doc. 8-2; doc. 7-2 at
PageID 118-20.
A. Direct Appeal
With the assistance of counsel, Petitioner timely appealed his conviction and sentence,
raising two assignments of error:
I.

The trial court erred when it found Mr. Adams guilty of all seven counts and
did not merge any of the counts.

II.

Appellant was denied effective assistance of counsel in violation of the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.

Doc. 7-2 at PageID 126 (capitalization altered). The Ohio Court of Appeals overruled both
assignments of error, affirming his conviction and sentence. State v. Adams, No. 22493 (Ohio Ct.
App. 2d Dist. May 1, 2009), doc. 7-2 at PageID 157-64.
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Petitioner, proceeding pro se, timely appealed to the Ohio Supreme Court, raising the same
arguments. See doc. 7-2 at PageID 165-77. On September 30, 2009, the Ohio Supreme Court
declined to hear his appeal, finding it did not involve any substantial constitutional question. State
v. Adams, No. 2009-1043 (Ohio Sept. 30, 2009), doc. 7-2 at PAGED 188.
B. Petition for Post-Conviction Relief
In addition, Petitioner filed a pro se petition for post-conviction relief on September 18,
2009. Doc. 7-2 at PageID 189-92. The Montgomery Count Court of Common Pleas overruled his
petition -- finding (1) it was untimely filed, and (2) the claims were barred by res judicata. State
v. Adams, No. 2006 CR 1867 (Montgomery Cnty. Ct. C.P. Oct. 27, 2009), doc. 7-2 at PageID 27780. Petitioner did not further appeal this ruling.
II. ANALYSIS
A. AEDPA Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), when the
state court decides a federal constitutional claim on the merits, the federal habeas court must defer
to the state court decision unless: (1) the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court”;
or (2) the state court’s decision “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d).
A state court decision is considered “contrary to . . . clearly established Federal law” when
it is “diametrically different, opposite in character or nature, or mutually opposed.” Nields v.
Bradshaw, 482 F.3d 442, 449 (6th Cir. 2007) (citation omitted). To be deemed “an unreasonable
application of . . . clearly established Federal law,” a state court’s decision must be “‘objectively

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unreasonable,’ not simply erroneous or incorrect.” Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th
Cir. 2009) (citation omitted). Further, under 28 U.S.C. § 2254(e)(1), a state court’s factual findings
are presumed correct unless the petitioner rebuts them by clear and convincing evidence. Id. This
statutory presumption of correctness also extends to factual findings made by state appellate courts’
review of trial court records. Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003).
Under principles of comity, the state courts should have the first opportunity to hear a habeas
petitioner’s claim. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Accordingly, a federal
habeas petitioner must exhaust state court remedies -- by fairly presenting his or her constitutional
claims to the state’s highest court -- before raising them in federal court. 28 U.S.C. § 2254(b);
O’Sullivan, 526 U.S. at 844-45. If (1) the state court rejected the petitioner’s claim based on his or
her failure to comply with the state procedural rules, or (2) the petitioner failed to exhaust his or her
state court remedies and no avenue of relief remains open, or it would otherwise be futile to pursue
the state remedies, the petitioner has waived that claim for habeas review under the procedural
default doctrine. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
B. Ground One
In Ground One, Petitioner argues that his conviction violates the Due Process Clause, the
Double Jeopardy Clause, and Ohio Rev. Code § 2941.25.2 See doc. 2 at PageID 46-48. Specifically,
he asserts that (1) the two rape counts, the gross sexual imposition count, and the kidnapping count
should have been merged; and (2) the aggravated robbery, robbery, and rape counts should have
been merged. See id.
2

To the extent that Petitioner is claiming a violation of Ohio Revised Code § 2941.25, such is not a cognizable
federal habeas corpus claim -- which is only available to correct violations of federal law. 28 U.S.C. §
2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); accord Green v. Brunsman, No. 1:10-cv-241, 2011
U.S. Dist. LEXIS 92828, at *11-12 (S.D. Ohio July 11, 2011).

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The Court cannot review Ground One on the merits, however, because it is procedurally
defaulted. Although Petitioner raised Ground One on direct appeal, the Ohio Court of Appeals
refused to hear the claim on the merits for failure to comply with a procedural rule, i.e., the
contemporaneous objection rule.3 See doc. 7-2 at PageID 160-62. Accordingly, the Court of
Appeals reviewed this claim for plain error only. See id.
The Sixth Circuit applies the test established in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.
1986) to determine whether a habeas claim is procedurally defaulted:
First, the court must determine that there is a state procedural rule that is applicable
to the petitioner’s claim and that the petitioner failed to comply with the rule. . . .
Second, the court must decide whether the state courts actually enforced the state
procedural sanction. . . . Third, the court must decide whether the state procedural
forfeiture is an “adequate and independent” state ground on which the state can rely
to foreclose review of a federal constitutional claim. . . .
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010).
All of the requirements for procedural default are met in this case. First, Petitioner does not
dispute that neither he nor his counsel complied with the contemporaneous objection rule -- by
failing to raise merger at the trial court level. See doc. 10. Second, the Ohio Court of Appeals’ plain
error review was an enforcement of that procedural rule. See Lundgren v. Mitchell, 440 F.3d 754,
765 (6th Cir. 2006). Third, Ohio’s contemporaneous objection rule is an adequate and independent
state ground. Hinkle v. Randle, 271 F. 3d 239, 244 (6th Cir. 2001). Therefore, Petitioner
procedurally defaulted in presenting Ground One to the state courts. Cf. Moore v. Warden, No.
1:11-cv-155, 2012 U.S. Dist. LEXIS 31090, at *19-22 (S.D. Ohio Mar. 8, 2012).

3

The contemporaneous objection rule requires parties to object to errors before the trial court in order to
preserve that error for appeal. State v. Comen, 553 N.E.2d 640, 646 (Ohio 1990).

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To be excused from his procedural default of Ground One, Petitioner must demonstrate “that
there was ‘cause’ for him to not follow the procedural rule and that he was actually prejudiced by
the alleged constitutional error.” Maupin, 785 F.2d at 138. Here, Petitioner raised ineffective
assistance of trial counsel in his habeas petition, which can constitute such cause, Edwards v.
Carpenter, 529 U.S. 446, 450-52 (2000), and he properly exhausted that claim in the state courts.
See id; doc. 7-2 at PageID 162-64. Nonetheless, to overcome procedural default, Petitioner’s
ineffective assistance of appellate claim must have merit. See Davie v. Mitchell, 547 F.3d 297, 31213 (6th Cir. 2008). As explained infra with regard to Ground Two, his claim does not. Therefore,
Ground One should be dismissed.
C. Ground Two
In Ground Two, Petitioner asserts ineffective assistance of trial counsel for failing to: (1)
request that his counts be merged; and (2) fully inform him regarding his potential sentence during
plea negotiations. Doc. 2 at PageID 48-52.
To prevail on his ineffective assistance of counsel claim, Petitioner must meet the two-part
Strickland v. Washington test by demonstrating that his counsel’s performance was deficient and that
he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because there
is “a strong presumption that counsel’s conduct falls within a wide range of reasonable professional
assistance,” to meet the deficiency prong, the defendant must demonstrate that counsel’s
performance “fell below an objective standard of reasonableness.” Id. at 688-90. To satisfy the
prejudice prong in the context of pleas, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty or no contest and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). In other words, to

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establish ineffective assistance of counsel, Petitioner must show both deficient performance and
prejudice. Berghuis v. Thompkins, __ U.S. __, 130 S. Ct. 2250, 2264 (2010).
1.

Counsel’s Failure to Request a Merger of Petitioner’s Counts

Petitioner’s first ineffective assistance of counsel sub-claim is that this trial counsel failed
to argue that some of his counts should be merged. See doc. 2 at PageID 49-51. This sub-claim was
properly presented on direct appeal. The Ohio Second District Court of Appeals -- correctly
applying the Strickland standard -- rejected this claim on the merits as follows:
In his final assignment, Adams contends that his trial counsel rendered
ineffective assistance of counsel when he failed to request that the trial court merge
any of the counts in the indictment.
“When considering an allegation of ineffective assistance of counsel, a twostep process is usually employed. First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel’s essential duties to
his client. Next, and analytically separate from the question of whether defendant’s
Sixth Amendment rights were violated, there must be a determination as to whether
the defense was prejudiced by counsel’s ineffectiveness.” State v. Bradley (1989),
42 Ohio St.3d 136, citing State v. Lytle (1976), 48 Ohio St.2d 391, 396-97, vacated
in part on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135.
The above standard contains essentially the same requirements as the
standard set forth by the United States Supreme Court in Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052. “When a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland,
supra, at 687-688. “Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. Thus, counsel’s performance will
not be deemed ineffective unless and until counsel’s performance is proved to have
fallen below an objective standard of reasonable representation and, in addition,
prejudice arises from counsel’s performance. Id.
For a defendant to demonstrate that he has been prejudiced by counsel’s
deficient performance, the defendant must prove that there exists a reasonable
probability that, absent counsel’s errors, the result of the trial would have been
different. Bradley, supra, at 143. A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Strickland, supra, at 694.

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Based upon our disposition with respect to Adams’ first assignment of error,4
we find that appellant has failed to establish his trial counsel rendered ineffective
assistance when he failed to request that some of the counts in the indictment be
merged since there is no evidence on the record from the plea hearing that merger
was appropriate under the circumstances. As stated previously, Adams’ counsel
negotiated the dismissal of two pending revocation cases in return for Adams’ pleas.
Moreover, by agreeing to enter no contest pleas to the counts in the indictment,
Adams obtained a sentence which was less than half of the maximum sentence
possible.
Adams’ final assignment of error is overruled.
Doc. 7-2 at PageID 162-64.
The Ohio Court of Appeals, on direct review, was limited to the trial court record. See State
v. Davis, 959 N.E.2d 516, 523(Ohio 2011). The Ohio Court of Appeals recited the facts as follows:
The incident which forms the basis of Adams’ arrest and subsequent conviction
occurred on the afternoon of December 14, 1997, when the victim, E.C., was leaving
the Victoria Theatre in downtown Dayton, Ohio. As E.C. approached her car,
Adams appeared and forced her into the passenger side of her car. Adams entered
the car and drove around with E.C. for a period of time during which he raped E.C.
both vaginally and orally. At some point, Adams also attempted to use E.C.’s ATM
card to withdraw money from her account. After driving around for some time,
Adams returned downtown, releasing E.C. at a parking garage. Before departing,
Adams threatened to kill E.C. if she told anyone about the attack.
Doc. 7-2 at PageID 159.
Based on the trial court record, the Ohio Court of Appeals reasonably determined that the
facts supported separate charges for each of Petitioner’s counts: Count I - rape under Ohio Revised
Code § 2907.02(A)(2) (vaginal rape); Count II - kidnapping under Ohio Revised Code §
2905.01(A)(4) (moving and restraining the victim’s liberty for a prolonged period of time, i.e.,
4

Earlier in its opinion, the Ohio Court of Appeals rejected Petitioner’s first assignment of error -- finding that
the trial court did not err in failing to merger his counts. The Ohio Court of Appeals concluded that “there
is nothing in the record demonstrating that any of the counts should be treated as allied offenses of similar
import, necessitating merger.” Doc. 7-2 at PageID 162. “No facts were placed on the record suggesting the
same animus for multiple counts, nor are there facts in the record suggesting anything less than distinct
counts.” Id.

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forcing her into the car and driving around, for the purpose of engaging in sexual activity); Count
III - rape under Ohio Revised Code § 2907.02(A)(2) (oral rape); Count IV - aggravated robbery
under Ohio Revised Code § 2911.01(A)(3) (inflicting serious harm on the victim in stealing the
victim’s car); Count VI - gross sexual imposition under Ohio Revised Code § 2907.05(A)(1)
(forcing the victim to submit to sexual contact, with the purpose of sexually arousing or gratifying
himself or the victim); and Count VII - robbery under Ohio Revised Code § 2911.02(A)(3) (taking
the victim’s ATM card through the use or threat of immediate force).
Further, contrary to Petitioner’s contentions, rape and kidnapping charges should not be
merged under Ohio Revised Code § 2941.25 when there is a prolonged abduction prior to the
commission of a rape. See State v. Logan, 397 N.E.2d 1345, 1349-50 (Ohio 1979). The same goes
for robbery and kidnapping charges -- they are not required to be merged where the restraint was
prolonged or the movement substantial. See State v. Fears, 715 N.E.2d 136, 151 (Ohio 1999).
Under the facts in this case, the Ohio Court of Appeals reasonably found separate charges for (1)
rape and kidnapping and (2) robbery and kidnapping because the restraint of the victim (an element
of kidnapping) was prolonged and substantial. Petitioner drove around with the victim before
committing rape or robbery. See doc. 7-2 at PageID 159.
Therefore, absent evidence in the record showing that the offenses were committed with the
same animus, the Court of Appeals reasonably concluded that merger was inappropriate.
Accordingly, the Court of Appeals’ determination -- that Petitioner’s trial counsel did not render
ineffective assistance for failing to raise an unsuccessful argument -- was a proper application of the
Strickland standard.

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Moreover, although the Court of Appeals did not explicitly address the underlying double
jeopardy argument, the Court finds that had Petitioner counsel’s requested merger under the Double
Jeopardy Clause, he would have likewise been unsuccessful. While protecting the same interests,
Ohio Revised Code § 2941.25 is much broader than the Double Jeopardy Clause. Steveson v.
Timmerman-Cooper, No. 3:10-cv-09, 2010 U.S. Dist. LEXIS 143614, at *4 (S.D. Ohio Jan. 14,
2010). The Double Jeopardy Clause protects a person from receiving multiple punishments for the
same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Two offenses are different, for double
jeopardy purposes, when each contains an element that the other does not. See Blockburger v.
United States, 284 U.S. 299, 304 (1932); see also United States v. Dixon, 509 U.S. 688, 696-97
(1993). However, even where two offenses are the same for Blockburger purposes, multiple
punishments can be imposed if the legislature clearly intended to do so. Albernaz v. United States,
450 U.S. 333, 344 (1981). Federal courts must defer to the state courts’ construction of their own
statutes. Missouri v. Hunter, 459 U.S. 359, 368 (1983).
Ohio Revised Code § 2941.25 demonstrates the Ohio legislature’s intent regarding multiple
punishments. See State v. Johnson, 942 N.E.2d 1061, 1064, 1070 (Ohio 2010). Under this statute,
an Ohio trial court may convict and sentence a defendant for two or more offenses arising from the
same incident if the offenses (1) are of dissimilar import; or (2) are of similar import, but were
committed separately or with a separate animus. See id. at 1070. Accordingly, there is no double
jeopardy violation in sentencing a defendant to similar offenses when each offense was committed
with a separate animus. See Watkins v. Schotten, No. 96-3024, 1996 U.S. App. LEXIS 31239, at
*6-7 (6th Cir. Nov. 27, 1996); Spence v. Sheets, 675 F. Supp. 2d 792, 822-25 (S.D. Ohio 2009);
Thomas v. Brunsman, No. 1:07-cv-858, 2008 U.S. Dist. LEXIS 118323, at *45-52 (S.D. Ohio Nov.
5, 2008).
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Finally, to the extent Petitioner attempts to present facts outside the trial court record -- to
prove that the charges were committed with the same animus -- he is procedurally barred from doing
so. In Ohio, the proper procedure for presenting non-trial-court-record evidence is through a petition
for post-conviction relief pursuant to Ohio Revised Code § 2953.21(A)(2). See State v. Gibson, 430
N.E.2d 954, 957 (Ohio 1980). Though Petitioner initially filed a post-conviction petition, his claims
are procedurally barred for two reasons. First, Petitioner filed his petition one year after the 180day limitations period, and the Montgomery County Common Pleas Court refused to consider the
merits of his post-conviction petition because it was untimely filed. See doc. 7-2 at PageID 277-80.
The 180-day limitations period in Ohio Revised Code § 2953.21 is an adequate and independent
state ground to bar a federal habeas claim. Bird v. Hurst, 110 F. App’x 474, 478 (6th Cir. 2004).
Second, Petitioner did not appeal the denial of his post-conviction petition, which also results in a
procedural default of the claims asserted therein. See Wright v. Bell, 619 F.3d 586, 603 (6th Cir.
2010); see also Norris v. Warden, No. 1:10-cv-764, 2011 U.S. Dist. LEXIS 135470, at *18-20 (S.D.
Ohio Oct. 20, 2011). Petitioner has not shown cause or prejudice to overcome this procedural
default. See docs. 2, 10. Therefore, this Court cannot consider Petitioner’s ineffective assistance
of counsel claim to the extent he asserts facts outside the trial court record.
In sum, the Ohio Court of Appeals’ application of Strickland -- determining that there was
no ineffective assistance of counsel for failing to raise an unsuccessful argument -- was not
objectively unreasonable.
2.

Counsel’s Failure to Inform Petitioner of His Potential Sentence

In Petitioner’s second ineffective assistance of counsel sub-claim, he asserts that, during plea
discussions, his trial counsel did not fully inform regarding his potential sentence. See doc. 2 at
PageID 49-51. However, as Petitioner acknowledges in his habeas petition, see id. at PageID 49-50,
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the trial court, on the record during his plea colloquy, informed him of the minimum and maximum
sentences for each count, and also advised him that the sentence for each count could be imposed
concurrently or consecutively. See doc. 8-1 at PageID 300-04.
Thus, his second sub-claim fails because, even assuming, arguendo, that Petitioner’s trial
counsel never advised him of his potential maximum sentence, Petitioner was not prejudiced by that
error, i.e., he has not shown that he would have insisted on going to trial. After the trial court
advised Petitioner of his potential maximum sentence during the plea colloquy, he decided to plead
no contest. A trial court’s proper plea colloquy cures any misunderstanding a defendant may have
had about the consequences of his plea. Ramos v. Rogers, 170 F.3d. 560, 565 (6th Cir. 1999).
Further,“[s]olemn declarations made in open court carry a strong presumption of verity,”
Blackledge v. Allison, 431 U.S. 63, 74 (1977), and Petitioner stated that he understood the potential
sentences before he entered his no contest plea as to each count. See doc. 8-1 at 300-04. Cf. Warner
v. United States, 975 F.2d 1207, 1212 (6th Cir. 1992).
III. RECOMMENDATION
Based on the foregoing analysis, it is RECOMMENDED that Petitioner’s § 2254 petition
for a writ of habeas corpus be DISMISSED with prejudice and this case be TERMINATED on
the Court’s docket.
Reasonable jurists would not disagree with the recommended disposition on Ground One.
Therefore, if Petitioner seeks to appeal, the Court RECOMMENDS that he be DENIED a
certificate of appealability on Ground One.
It is possible, however, that reasonable jurists would disagree with the recommended
disposition on Ground Two. Therefore, if Petitioner seeks to appeal, the Court RECOMMENDS

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that Petitioner be GRANTED a certificate of appealability on Ground Two and leave to proceed in
forma pauperis on appeal.

s/ Michael J. Newman
United States Magistrate Judge

April 10, 2012

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within FOURTEEN days after being served with
this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to
SEVENTEEN days because this Report is being served by one of the methods of service listed in
Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court on timely motion for
an extension. Such objections shall specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party’s objections within FOURTEEN
days after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140 (1985).

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