Smith v. Warden, Southern Ohio Correctional Facility

Filing 5

REPORT AND RECOMMENDATIONS - Based on the foregoing analysis, it is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively unreasonable and should not be permitted to proceed in forma pauperis. Objections to R&R due by 4/8/2013. Signed by Magistrate Judge Michael R Merz on 3/20/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
THEODORE W. SMITH, III,
:
Petitioner,

Case No. 3:13-cv-065
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsWARDEN, Southern Ohio Correctional
Facility,
:
Respondent.

REPORT AND RECOMMENDATIONS
This habeas corpus case, brought under 28 U.S.C. § 2254, is before the Court for initial
review under Rule 4 of the Rules Governing § 2254. Petitioner has filed an Amended Petition
which is legible enough for the Court to read and therefore to proceed.
Petitioner was convicted in the Montgomery County Common Pleas Court of kidnapping
and unlawful restraint of Cassie Davis and kidnapping of Davis’s son. He was sentenced to the
fifteen-year sentence he is now serving in Respondent’s custody. He appealed that conviction to
the Ohio Second District Court of Appeals which affirmed. State v. Smith, 2012-Ohio-734, 2012
Ohio App. LEXIS 633 (Ohio App. 2nd Dist. Feb. 24, 2012). Smith attempted to obtain review in
the Ohio Supreme Court, but that court declined to exercise jurisdiction. State v. Smith, 132
Ohio St. 3d 1409 (2012). Petitioner filed the instant case within one year of the Ohio Supreme
Court’s decision.
Smith pleads the following Grounds for Relief:

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Ground One: Fatal variance between the indictment and evidence
presented at trial.
Supporting facts: No weapon mentioned in state indictment:
Count I kidnapping (Cassie Davis); Count IV kidnapping ([minor
child’s name redacted]): and or the unlawful restraint of Cassie
Davis. No weapon specified in states bill of particulars as to Count
I; Count IV; and or the unlawful restraint of Davis. Davis never
mentioned a weapon to 911 operator, in her three (3) page
statement, and or to police the day she made allegations. No
weapon was taken from petitioner and no weapon was recovered
from Davis’ apartment the day she made allegations.
Ground Two: Multiple prosecution same evidence
Supporting facts: (as a pro se defendant) August 20, 2008
petitioner was acquitted of Count II aggravated robbery (deadly
weapon) and petitioner was acquitted of kidnapping (Cassie Davis)
Count III. On the basis of an out of court statement the petitioner
was found guilty of Count I kidnapping (Cassie Davis); Count IV
kidnapping (([minor child’s name redacted]); and the unlawful
restraint of Davis. These convictions were reversed (see State v.
Smith 2d Dist. No. 22926—2010-Ohio-745). November 1, 2010
the state re-tried the petitioner for Count I kidnapping (Cassie
Davis), Count IV kidnapping (([minor child’s name redacted]); and
the unlawful restraint of Davis. The State’s second trial required
the relitigation of factual issues already resolved by the first trial.
Ground Three: Prosecutorial misconduct
Supporting facts: (the state) relitigated prejudicial evidence that
denied the petitioner a fair trial: evidence from acquitted Counts II
aggravated robbery (deadly weapon) and Count III kidnapping
(Cassie Davis) were relitigated at states second November 1, 2010
trial; Count I kidnapping (Cassie Davis); unlawful restraint of
Cassie Davis; and Count IV kidnapping (([minor child’s name
redacted]).
Ground Four: Trial court abuse of discretion
Supporting facts: Allowed state to relitigate Count’s II aggravated
robbery (deadly weapon) and Count III kidnapping (Cassie Davis)
over Defendant-Appellant-Petitioner’s objections at state’s
November 2, 2010, re-trial of Petitioner for Count I kidnapping
(Cassie Davis); the unlawful restraint of Cassie Davis; and Count
IV kidnapping (([minor child’s name redacted]).
2

…
Ground Five: Allied offenses crimes similar import
Supporting facts: Petitioner was convicted of kidnapping Cassie
Davis and the unlawful restraint of Cassie Davis. These are allied
offenses of similar import.
Ground Six: Void judgment/ Lack of subject matter jurisdiction
Supporting facts: August 25, 2008, Petitioner acquitted of
kidnapping states witness Cassie Davis. November 1, 2010,
Petitioner re-tried the petitioner for kidnapping states witness
Cassie Davis. Subsequent to the first trial the state lacked
jurisdiction over the subject matter and or the Petitioner.

(Amended Petition, Doc. No. 4, PageID 49-56.)

Analysis

Ground One: Variance

Smith was indicted for aggravated robbery with a deadly weapon, which was Count 1 of
the Indictment. He was acquitted of that charge in his first trial. The original conviction was
reversed for a violation of the Confrontation Clause and remanded for retrial on the charges on
which there was an initial conviction, to wit, kidnapping of Cassie Davis and her son and
unlawful restraint of Cassie Davis. At the second trial, evidence of Smith’s use of a knife in
commission of the crime was introduced by the State. In his first Ground for Relief, Smith
claims that introducing evidence of his use of a knife created a fatal variance with the
Indictment.
[*P29] All four of these arguments are based upon the fact that the
State presented evidence that Smith utilized a knife during the
commission of these offenses. Smith contends that the prosecutor
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acted improperly in presenting the evidence of the knife and that
the trial court abused its discretion by permitting the introduction
of this evidence. He further contends that permitting the
introduction of the evidence concerning the knife subjected him to
double jeopardy in violation of his constitutional rights and created
a fatal variance between the indictment and the evidence presented
at trial. Smith's arguments are premised upon the fact that he was
acquitted, during his first trial, of the charge of Aggravated
Robbery with a Deadly Weapon. He claims that the State was
therefore precluded from introducing any evidence of the knife at
his second trial.
[*P30] In criminal prosecutions, a variance is a conflict or
disagreement between the indictment and the proof in a matter
essential to the charge. State v. Brozich, 108 Ohio St. 559, 1 Ohio
Law Abs. 812, 2 Ohio Law Abs. 69, 141 N.E. 491 (1923),
paragraph one of the syllabus. The evidence demonstrates that
Smith used a knife during the commission of the crime. It was
relevant to the issue of purpose and restraint. Crim.R. 33(E)(2)
provides that no conviction shall be reversed because of "[a]
variance between the allegations and the proof thereof, unless the
defendant is misled or prejudiced thereby." The determination of
whether a variance is prejudicial must be made on the facts of each
case. United States v. Mills, 366 F.2d 512, 514 (6th Cir. 1966).
[*P31] We note that the indictments for the charges that were retried following remand did not contain information or language
about a knife. The charge for Aggravated Robbery with a Deadly
Weapon was the only portion of the indictment that mentioned a
knife.
[*P32] In this case, the knife was not essential to prove the
element of the offenses charged. It was merely evidence regarding
the course of the events in question. The record shows that Davis,
on the 911 tape, stated that Smith was going to "slit her throat."
There is also evidence, from Davis's testimony, that Smith
brandished a knife in front of her child when he sent Davis out of
the apartment. While this evidence was relevant to demonstrate
that Smith acted purposefully in holding the child hostage, proof
specifically that a knife was used was not essential to prove the
elements of the Kidnapping statute. Indeed, the mere fact that
Smith kept the child under his control, regardless of whether he
utilized a knife in doing so, allowed the jury to infer the element of
purpose. Thus, we conclude that Smith was not prejudiced or
misled by the introduction of the knife into evidence. Indeed, it is

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clear from the record that Smith was aware prior to trial that the
State intended to utilize the knife as evidence.
State v. Smith, 2012 Ohio 734, ¶¶29-32. In other words, there would have been a fatal variance
if proving the kidnapping or unlawful restraint charges had required proof of a deadly weapon
but the Indictment had not included that element. The court of appeals held that those charges
did not require proof of use of a knife, but that evidence was still relevant to show that the
kidnapping had occurred.
The federal standard for evaluating a variance claim is taken from Berger v. United
States, 295 U.S. 78 (1935):
The true inquiry . . . is not whether there has been a variance in
proof, but whether there has been such a variance as to “affect the
substantial rights” of the accused. The general rule that allegations
and proof must correspond is based upon the obvious requirements
(1) that the accused shall be definitely informed as to the charges
against him, so that he may be enabled to present his defense and
not be taken by surprise by the evidence offered at the trial; and (2)
that he may be protected against another prosecution for the same
offense.
295 U.S. at 82. The Ohio law on variances cited by the Second District Court of Appeals is not
inconsistent with Berger. Petitioner’s First Ground for Relief is without merit and should be
dismissed with prejudice.

Ground Two: Double Jeopardy

In his Second Ground for Relief, Petitioner raises a double jeopardy claim, to wit, that he
was tried multiple times on the same evidence. The Ohio court of appeals decided this claim as
follows:

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[*P33] We also conclude that Smith was not subjected to double

jeopardy by the use of the knife evidence. Again, it was merely
evidence regarding the course of the events. Smith was not re-tried
on the charge of Aggravated Robbery with a Deadly Weapon.
There was no additional charge or punishment that depended on
proof that a knife was used in the commission of the offense.

State v. Smith, supra, ¶ 33.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the
States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969). It
affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165(1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). But here the State did not reprosecute Smith on the charges of which he was acquitted in
the first trial, principally aggravated robbery. The offenses on which Smith was retried were
instead the offenses of which he had been convicted. Those convictions were vacated as a result
of his successful first appeal, but the Double Jeopardy Clause does not prohibit retrial after a
successful appeal unless the ground of appeal is that the State produced insufficient evidence.

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Tibbs v. Florida, 457 U.S. 31, 39-40 (1982). The court of appeals decision was neither contrary
to nor an objectively unreasonable application of clearly established federal law.

Ground Three: Prosecutorial Misconduct

In his Third Ground for Relief, Petitioner asserts the prosecutor committed misconduct
by introducing evidence at the second trial of Smith’s use of a knife in committing the
kidnapping offenses.
[*P34] We turn to the claim that the prosecutor acted improperly
by attempting to submit the evidence that a knife was used during
the commission of the instant offenses and whether the trial court
abused its discretion by allowing the knife into evidence. "The test
for prosecutorial misconduct is whether [actions] were improper
and, if so, whether they prejudicially affected substantial rights of
the accused. The touchstone of analysis 'is the fairness of the trial,
not the culpability of the prosecutor.'" (Citation omitted.) State v.
Jones, 90 Ohio St.3d 403, 420, 2000 Ohio 187, 739 N.E.2d 300,
quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71
L.Ed. 2d 78 (1982). Our review of the record fails to disclose
prosecutorial misconduct.
State v. Smith, supra., ¶ 34.
On habeas corpus review, the standard to be applied to claims of prosecutorial
misconduct is whether the conduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process,” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);
Darden v. Wainwright, 477 U.S. 168, 181 (1986), quoting, DeChrsitoforo, supra.; Wogenstahl v.
Mitchell, 668 F.3d 307, 327-328 (6th Cir. 2012), citing Smith v. Mitchell, 567 F.3d 246, 265 (6th
Cir.); Bates v. Bell, 402 F.3d 635, 640-41 (6th Cir. 2005)(citations omitted); Kincade v.
Sparkman, 175 F.3d 444, 445-46 (6th Cir. 1999)(citations omitted) or whether it was “so
egregious as to render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d
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117, 119 (6th Cir. 1979)(citations omitted); accord Summitt v. Bordenkircher, 608 F.2d 247, 253
(6th Cir. 1979), aff'd sub nom, Watkins v. Sowders, 449 U.S. 341 (1981)(citation omitted);
Stumbo v. Seabold, 704 F.2d 910, 911 (6th Cir. 1983)(citation omitted). The court must first
decide whether the complained-of conduct was in fact improper. Frazier v. Huffman, 343 F.3d
780 (6th Cir. 2003), citing United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). A fourfactor test is then applicable to any conduct the Court finds inappropriate: “(1) whether the
conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)
whether the conduct or remarks were isolated or extensive; (3) whether the remarks were
deliberately or accidentally made; and whether the evidence against the defendant was strong.”
Id. The court must decide whether the prosecutor’s statement likely had a bearing on the
outcome of the trial in light of the strength of the competent proof of guilt. Angel v. Overberg,
682 F.2d 605, 608 (6th Cir. 1982). The court must examine the fairness of the trial, not the
culpability of the prosecutor. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355
(6th Cir. 1993)(quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). In Serra, the Sixth Circuit
identified factors to be weighed in considering prosecutorial misconduct:
In every case, we consider the degree to which the remarks
complained of have a tendency to mislead the jury and to prejudice
the accused; whether they are isolated or extensive; whether they
were deliberately or accidentally placed before the jury, and the
strength of the competent proof to establish the guilt of the
accused.
Id., at 1355-56, quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)(citation omitted).
The misconduct must be so gross as probably to prejudice the defendant. Prichett v. Pitcher, 117
F.3d 959, 964 (6th Cir.), cert. denied, 522 U.S. 1001 (1997)(citation omitted); United States v.
Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Claims of prosecutorial misconduct are reviewed

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deferentially on habeas review. Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), rev’d on
other grounds, __ U.S. __, 130 S.Ct. 2250 (2010), citing Millender v. Adams, 376 F.3d 520, 528
(6th Cir. 2004), cert. denied, 544 U.S. 921 (2005).
Because it was perfectly proper for the prosecutor to introduce use of the knife in
evidence at the second trial, Smith’s prosecutorial misconduct claim fails at the first step of the
analysis: the prosecutor here committed no misconduct. Therefore the Third Ground for Relief
should be dismissed with prejudice.

Ground Four: Abuse of Discretion by the Trial Judge

In Ground Four Petitioner again attacks the admission of the use of knife evidence at the
second trial, this time from the angle of the trial judge.
***
Finally, "[t]he admission of evidence is within the discretion of the
trial court. * * * [T]hus the court's decision will be reversed only
upon a showing of an abuse of discretion." (Citations omitted.)
Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 2010
Ohio 2470, 932 N.E.2d 313, ¶ 38. We find no abuse of discretion.
The evidence demonstrates that Smith used a knife during the
commission of the crime. It was relevant to the issues of purpose,
force and threat.
State v. Smith, supra, at ¶ 34.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. §2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010);
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v.
Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine
state court determinations on state law questions. In conducting habeas review, a federal court is
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limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Evidentiary questions generally do not
rise to the constitutional level unless the error was so prejudicial as to deprive a defendant of a
fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988); Walker v. Engle, 703 F.2d 959,
962 (6th Cir. 1983); Bell v. Arn, 536 F.2d 123 (6th Cir., 1976); Burks v. Egeler, 512 F.2d 221,
223 (6th Cir. 1975).
The court of appeals here held that admission of the use of knife evidence was not error
in any way, so it could not have been an abuse of discretion for the trial judge to admit it and
therefore no constitutional error was committed. The Fourth Ground for Relief should therefore
be dismissed with prejudice.

Ground Five: Allied Offense of Similar Import

In his Fifth Ground for Relief, Petitioner asserts that he has been convicted of and
punished for allied offenses of similar import, to wit, both the kidnapping of an unlawful
restraint of Cassie Davis. This was Smith’s Fifth Assignment of Error on appeal. The court of
appeals decided the claim as follows:
[*P15] Smith contends that the trial court erred by failing to merge
all of the offenses for purposes of sentencing because "all of the
offenses arose out of the same alleged criminal transaction," and
are therefore allied offenses of similar import.
[*P16] A defendant may be found guilty of, and convicted of,
multiple allied offenses of similar import so long as he is sentenced
upon only one of them. In State v. Johnson, 128 Ohio St.3d 153,
2010 Ohio 6314, 942 N.E.2d 1061, the Ohio Supreme Court
recently revised its allied-offense jurisprudence. The Johnson court
stated that "[w]hen determining whether two offenses are allied
offenses of similar import subject to merger under R.C. 2941.25,
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the conduct of the accused must be considered." Id. at syllabus.
[*P17] Under Johnson, "[w]e determine the General Assembly's
intent by applying R.C. 2941.25, which expressly instructs courts
to consider the offenses at issue in light of the defendant's
conduct." Id. at ¶ 46. In determining whether offenses are allied
offenses of similar import under R.C. 2941.25(A), the question is
whether it is possible to commit one offense and commit the other
with the same conduct, not whether it is possible to commit one
without committing the other." (Citation omitted.) Id. at ¶ 48. "If
the offenses correspond to such a degree that the conduct of the
defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import."
Id.
[*P18] "If the multiple offenses can be committed by the same
conduct, then the court must determine whether the offenses were
committed by the same conduct, i.e., 'a single act, committed with
a single state of mind.'" Id. at ¶ 49, quoting State v. Brown, 119
Ohio St.3d 447, 2008 Ohio 4569, 895 N.E.2d 149, ¶ 50. "If the
answer to both questions is yes, then the offenses are allied [**9]
offenses of similar import and will be merged." Johnson at ¶ 50.
"Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the
offenses are committed separately, or if the defendant has separate
animus for each offense, then, according to R .C. 2941.25(B), the
offenses will not merge." Id. at ¶ 51 (emphasis in original).
[*P19] We have recognized that HN4 separate convictions and
sentences are permitted when a defendant's conduct results in
multiple victims. See, e.g., State v. Skaggs, 2d Dist. Clark App. No.
10-CA-26, 2010 Ohio 5390. As a result, it was permissible for
Smith to be convicted and sentenced separately for the offenses he
committed against each victim.
[*P20] R.C. 2905.01 proscribes the offense of Kidnapping. That
statute provides:
(A) No person, by force, threat, or deception, or, in
the case of a victim under the age of thirteen or
mentally incompetent, by any means, shall remove
another from the place where the other person is
found or restrain the liberty of the other person, for
any of the following purposes:
(1) To hold for ransom, or as a shield or hostage;
11

***
(3) To terrorize, or to inflict serious physical harm
on the victim or another.

[*P21] The mens rea for R.C. 2905.01 offenses is "purposefully,"
which is defined by R.C. 2901.22(A) as follows:
[*P22] "A person acts purposely when it is his specific intention to
cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what
the offender intends to accomplish thereby, it is his specific
intention to engage in conduct of that nature."
[*P23] Unlawful Restraint is defined in R.C. 2905.03, which states
that "no person without privilege to do so, shall knowingly restrain
another of the other person's liberty." "A person acts knowingly,
regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist." R.C. 2901.22(B).
[*P24] In this case, Smith's conduct was directed at two separate
victims. Smith dragged Davis from her bedroom to her living
room. Then he ordered her to retrieve her child from the bedroom.
He next forced Davis to leave the apartment while he retained
custody of the child while brandishing a knife. Then, after Davis
returned to the apartment, he continued to restrain her and the child
until the police arrived. All of these actions were committed over
the course of approximately three hours, during which time he
threatened Davis and the child with harm.
[*P25] The act of dragging Davis from one room to another and
holding her while threatening her over the course of three hours
satisfies the elements of R.C. 2905.01(A)(3). Likewise, Smith's act
of retaining the child while Davis was forced to leave the
apartment satisfies the elements of R.C. 2905.01(A)(1). Since this
conduct involves two separate victims, we conclude that the two
Kidnapping convictions do not constitute allied offenses of similar
import. In reaching this conclusion, we find no arguable merit to
the contrary proposition.
[*P26] Smith was also convicted of Unlawful Restraint with
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regard to Davis. However with regard to that conviction he was
sentenced to time served. Therefore, even if the trial court should
have merged the Unlawful Restraint sentence with the Kidnapping
sentence pertaining to Davis, the actual prison sentence for that
offense - time served - has by definition already been served.
Therefore, we cannot provide Smith any meaningful relief as to
that sentence, and this issue is therefore moot.
[*P27] Smith's Fifth Assignment of Error has no arguable merit.
State v. Smith, supra, ¶¶ 15-27.
In his pleading of this Ground for Relief, Petitioner does not assert any federal
constitutional violation. It is also clear that he did not argue this claim as a federal constitutional
violation before the state courts and that the court of appeals decided it solely as a state law
question. Ohio Revised Code § 2941.25, which prohibits multiple convictions of offenses of
allied import committed with the same animus, addresses some of the same concerns addressed
by the Double Jeopardy Clause, but that does not make Ohio Revised Code § 2941.25 a part of
federal law.
Petitioner’s Fifth Ground for Relief is not cognizable in federal habeas corpus and should
be dismissed with prejudice.

Ground Six: Lack of Jurisdiction

In his Sixth Ground for Relief, Petitioner asserts the judgment of conviction is void for
lack of jurisdiction. Smith admits he has not submitted this claim to the state courts because, he
says, he believed such a claim was “exclusive to a federal habeas corpus petition.” (Amended
Petition, Doc. No. 4, PageID 57.) That belief is in error; the Ohio courts would certainly have
had jurisdiction to decide if they could have proceeded to trial the second time. Therefore the

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Sixth Ground for Relief is not exhausted. However, the claim can be denied on the merits
despite lack of exhaustion. 28 U.S.C. § 2254(b)(2).
The Sixth Ground for Relief is without merit. The offenses on which Smith was tried are
felony offenses occurring in Montgomery County, Ohio. The Montgomery County Common
Pleas Court has exclusive subject matter jurisdiction to try such offenses. The fact that they had
been tried before did not deprive that court of jurisdiction after the court of appeals vacated the
first set of convictions.
Petitioner’s Sixth Ground for Relief should be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively unreasonable and should not be permitted to
proceed in forma pauperis.
March 20, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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
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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)(C), (D), (E), or (F). 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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