Stein v. Warden Ross Correctionl Institution

Filing 25

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is respectfully recommended that Stein's Objections be stricken and the Petition be dismissed with prejudice on the basis of the original Report. Because reasonable jurists would not disagree w ith 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 frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/20/2015. Signed by Magistrate Judge Michael R Merz on 3/2/2015. (kpf1)(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
WESTERN DIVISION AT DAYTON
SAMUEL C. STEIN,
Petitioner,

:

- vs -

Case No. 3:14-cv-274
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,
:
Respondent.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner Stein’s Objections (Doc. No. 20
to the Magistrate Judge’s Supplemental Report and Recommendations (Doc. No. 19). Judge
Rose has recommitted the case for reconsideration in light of the Objections (Doc. No. 21). To
obtain additional evidence regarding Stein’s complaints about the Court’s Order that he file
papers by way of the digital sender at Ross Correctional Institution, the Magistrate Judge ordered
the record expanded (Doc. No. 23) and the Warden has timely complied with that order (Doc.
No. 24). The case is therefore ripe for decision on Judge Rose’s recommittal.
The Supplemental Report and Recommendations merely considered four additional
exhibits added to the record on Stein’s request and concluded that they did not prove either that
the Second District Court of Appeals’ decision in this case “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding” or
“that either witness Ramga or witness Thompson committed perjury.” (Supplemental R&R, Doc.

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No. 19, PageID 1292.) Based on that finding, the Magistrate Judge again recommended that the
Petition be dismissed with prejudice. Stein’s Objections address both prior Reports.

Filing Status of Stein’s Objections

The Supplemental Report was filed January 8, 2015, and mailed to Stein by regular
United States mail by the Clerk on the same day (Doc. No. 19). Under Fed. R. Civ. P. 72(b)(2),
Stein had fourteen days to “file and serve” objections; that time was extended by three days by
Fed. R. Civ. P. 6(d) because Stein was served by mail. As has been this Court’s standard
practice for more than thirty years, a Notice Regarding Objections was appended to the
Supplemental Report, advising Stein of his right to object and of the time limits on doing so
(Doc. No. 19, PageID 1293). That made Stein’s Objections due on January 26, 2015.
Because of prior disputes about the timeliness of Stein’s filings, the Court on December
22, 2014, ordered Stein to use the scanning facility (“Digital Sender”) at Ross Correctional “[f]or
all future filings in this case.” (Decision and Order, Doc. No. 13, PageID 1263.) Stein moved
for reconsideration1 (Doc. No. 17) and the Court reiterated its order (Order on Reconsideration,
Doc. No. 18).
Stein’s Objections (Doc. No. 20) contain the following Certificate of Service:
I hereby swear under penalty of perjury that the foregoing
"Objection to the Report and Recommendation" was placed in the
prison's mailing system, addressed to the Clerk of this court, via
First-Class U.S. Mail, postage prepaid, on this 17th day of January,
2015. I hereby certify that a true and accurate copy of the
foregoing was sent by regular U.S. Mail, First Class postage
prepaid, to Mary Anne Reese, Counsel for the Respondent, at 441
1

In his initial act of defiance of the December 22, 2014, Order, Stein sent his Motion for Reconsideration to the
Court by ordinary mail and filed a Certificate of Service that he had also mailed it to Respondent’s counsel on
December 27, 2014. (Doc. No. 17, PageID 1287.)

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Vine St., Suite 1600, Cincinnati, OH, 45202, on this 17th day of
January, 2015.

Id. at PageID 1307. Although the Certificate purports to be made under oath, it is not notarized.
Moreover, the Warden’s counsel has proved, beyond any doubt, that the Certificate is false. The
Warden’s counsel declares under penalty of perjury that she received the Objections in four
separate envelopes, postmarked on January 27, 28, and 29, 2015 (Notice, Doc. No. 24-3, PageID
1366). Unlike Stein, she documents her factual assertions by attaching copies of the envelopes
showing postmarks at least ten days later than the date on which Stein claims he mailed the
Objections. Id. at PageID 1377, 1378, 1382, 1386.
Stein’s most recent filing shows the wisdom of the Court’s digital scanner project and the
need to make it mandatory in this case. Stein has plainly lied to the Court about his service of
the Objections on the Warden’s counsel, reinforcing the Court’s doubt of the truth of his prior
assertions of service (see Order on Reconsideration, Doc. No. 18, PageID 1288, quoting
Decision and Order, Doc. No. 13, PageID 1263). Moreover, Stein’s claim that he mailed his
Objections to this Court on January 17, 2015 (Objections, Doc. No. 20, PageID 1307) is refuted
by the postmark on the envelope in which they were received, which is January 26, 2015, nine
days later than the date on which Stein swears he mailed them (Doc. No. 22).
Aside from the date of mailing, Stein’s Objections were filed by mail in defiance of this
Court’s prior Orders. His defiance places Stein in contempt of this Court. In his Objections he
asserts that the Magistrate Judge was not legally empowered to enter the Order requiring him to
use the digital scanner and that his Motion for Reconsideration of that Order should have been
decided by Judge Rose rather than the Magistrate Judge. However, the Order to use the digital
scanner is plainly a pre-trial non-dispositive order which a Magistrate Judge is empowered to

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enter in a referred case. Although a litigant has a right to review of such an order by a District
Judge, S. D. Ohio Civ. R. 72.3 provides that a Magistrate Judge’s orders on non-dispositive
motions remain in effect unless stayed or overruled by a District Judge. Because the order is
within the jurisdiction of a magistrate judge, it must be obeyed until reversed, under penalty of
contempt. Walker v. City of Birmingham, 388 U.S. 307 (1967).
Stein asserts that the Order to file by use of the scanning facility is contrary to clearly
established Supreme Court law, citing Houston v. Lack, 487 U.S. 266 (1988). Houston is usually
cited as adopting the “mailbox rule,” i.e., that a prisoner files a paper with the relevant court
when he deposits it in the prison mailbox. In fact, the Supreme Court held in Houston that an
inmate “files” a notice of appeal “at the time [it is] delivered to the prison authorities for
forwarding to the court clerk.” Id. at 276. Justice Brennan’s majority opinion presumed that
dropping a filing in a prison mailbox was the only way a prisoner had of sending a filing to a
court.
The pro se prisoner does not anonymously drop his notice of
appeal in a public mailbox -- he hands it over to prison authorities
who have well-developed procedures for recording the date and
time at which they receive papers for mailing and who can readily
dispute a prisoner's assertions that he delivered the paper on a
different date. Because reference to prison mail logs will generally
be a straightforward inquiry, making filing turn on the date the pro
se prisoner delivers the notice to prison authorities for mailing is a
bright-line rule, not an uncertain one.

487 U.S. at 275. Thus the Supreme Court in Houston assumed a set of facts which is not present
in this case or reflective of the practice at Ross Correctional Institution. In defense of his
preference for mailing, Stein states he can deposit his papers in a public mailbox without
processing them through the prison authorities and “[e]nvelopes are available and the mailbox is
right outside the chow hall where it can be accessed daily.” (Objections, Doc. No. 20, PageID
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1304.)

This is consistent with the Declaration of Lieutenant William Faught at Ross

Correctional that no log is kept by the institution of inmates’ outgoing legal mail and that “[i]f an
inmate’s outgoing letter fits in the mailbox and if it contains sufficient postage, however, there
would be no need to generate a cash slip or indigent mail record, and so no record of the inmate’s
outgoing mailing would exist.” (Notice, Doc. No. 24-4, PageID 1388, ¶¶ 9-10.)
A litigant who is not confined satisfies his or her obligation to file something with the
Clerk by getting it to the Clerk on or before the date the filing is due. Houston v. Lack, supra,
relieves a prisoner of the duty of delivering a filing to the Court by permitting the prisoner to
deposit the filing with the prison authorities on or before the date the filing is due. Stein did not
satisfy the Houston v. Lack rule because he did not deliver his Objections to the prison
authorities, but rather deposited them in the United States mail. That deposit did not satisfy the
filing requirement in Fed. R. Civ. P. 72 because it was not done in time to have the Objections
reach the Clerk by the due date of January 26, 2015. Instead, Stein mailed the Objections the
date they were due and they did not arrive until two days later. Moreover, Stein did not satisfy
his obligation under Fed. R. Civ. P. 5 to serve a copy of the Objections on Warden’s counsel on
the same date as it is due to be filed: the warden’s counsel has proved that Stein sent her the
Objections (without the attachment) in four separate mailings made on January 27, 28, and 29,
2015 (see Notice, Doc. No. 24-3).
Stein could have avoided the cost of postage, the risk of delays in the mail, and his
ultimate failure to file and serve if he had used the digital sender. There is no cost to an inmate,
there is no delay,2 and there is verification of when the document is scanned and sent. Because
he willfully refused to use the digital scanner when ordered to do so and did not otherwise file or

2

The Ross Correctional Librarian informs the Court there is no backlog. (Declaration of Andrew Hart, Doc. No. 245, PageID 1399-1400.)

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serve his Objections on time, they should be STRICKEN.

Alternative Analysis on the Merits

Procedural Default Issues

Should the Court decide to make an alternative decision on the merits of the case, the
Magistrate Judge offers the following analysis.
Stein was convicted in the Montgomery County Common Pleas Court of conspiring to
murder the mother of his child. Judge Huffman then sentenced him to the nine year sentence he
is now serving. His Petition in this case raises twenty-three Grounds for Relief which were all
found in the original Report to be without merit and, in almost every instance, barred by Stein’s
procedural default in presenting them to the Ohio courts.
To facilitate District Court review, this Supplemental Report will address the issues
raised in Stein’s Objections in the order in which he raises them.

1.

Lack of Counsel in the Delayed Reopening Proceeding

Stein’s direct appeal concluded on July 12, 2013. State v. Stein, 2013-Ohio-3050, 2013
Ohio App. LEXIS 3101 (2nd

nd

Dist. July 12, 2013). Stein did not file a timely appeal to the

Supreme Court of Ohio. Instead, on February 5, 2014, Stein filed a delayed application to
reopen the appeal pursuant to Ohio R. App. P. 26(B). The Second District denied the application
as untimely. State v. Stein, Case No. 25432 (2nd nd Dist. Mar. 20, 2014)(unreported, copy at Notice

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of Filing, Doc. No. 6-1, PageID 380-82).
The Report found that Grounds for Relief Four, Five, Six, Eight, Eleven, Twelve,
Thirteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-two were based
on facts which were of record at the time of direct appeal but not raised in that proceeding and
were therefore barred by Ohio’s criminal res judicata doctrine adopted in State v. Perry, 10 Ohio
St. 2d 175 (1967)(Report, Doc. No. 11, PageID 1241-42).
Stein claims the Ohio Supreme Court held in State v. Murnahan, 63 Ohio St. 3d 60
(1992), that “res judicata is not applicable to an application to reopen a direct appeal because of
the ineffective assistance of appellate counsel.” (Objections, Doc. No. 20, PageID 1295.) What
the Ohio Supreme Court actually held in Murnahan was that post-conviction relief under Ohio
Rev. Code § 2953.21 is not available as a remedy for ineffective assistance of appellate counsel.
Instead, it held that issues of ineffective assistance of appellate counsel can be raised in an
application for reconsideration to the court of appeals or a direct appeal to the Ohio Supreme
Court under Article IV, Sec. 2(B)(2)(a)(iii). The Supreme Court in Murnahan also directed its
Advisory committee on Rules to codify a provision for litigating ineffective assistance of
appellate counsel claims which it did in Appellate Rule 26(B). To the extent Murnahan set out a
procedure for raising ineffective assistance of appellate counsel claims, it was applicable only
until 26(B) was adopted. And the court never held res judicata was inapplicable to bar claims
eventually raised in a 26(B) application. Ohio’s res judicata doctrine remains fully applicable to
this case and bars any claims which depend on the appellate record but were not raised on direct
appeal.
Stein relies on ineffective assistance of appellate counsel to excuse his procedural default
in not raising many of his grounds on direct appeal. But the Report notes that before this excuse

7

can be used, a habeas petitioner must first exhaust and not default the ineffective assistance of
appellate counsel claim in the state courts (Report, Doc. No. 11, PageID 1242, citing Edwards v.
Carpenter, 529 U.S. 446 (2000)). Under Ohio App. R. 26(B) a claim of ineffective assistance of
appellate counsel must be filed within ninety days of the appellate judgment. Stein’s 26(B)
application was not filed until 208 days after judgment and the Second District found the filing
was untimely and the delay unexcused. Id. at PageID 1242-43. The Report further held the
question whether the delay was excused was a question of state law on which this Court could
not second guess the Ohio courts of appeals. Id. at PageID 1244.
Stein objects that the habeas corpus statute, 28 U.S.C. § 2254(d), empowers this Court to
overturn state court decisions that are unreasonable and contrary to clearly established Supreme
Court precedent (Objections, Doc. No. 20, PageID 1295). To the contrary, the habeas statute
only authorizes federal courts to overturn state court decisions on questions of federal
constitutional law. Whether or not a state prisoner has complied with state rules for raising a
claim of ineffective assistance of appellate counsel is purely a question of state law. To put it
another way, the United States Constitution does not impose on the States any particular method
for litigating those claims.
Stein argues that “Ohio already has the principle of equitable tolling in the filing of a
delayed application to reopen under App. R. 26(B).” (Objections, Doc. No. 20, PageID 1296.)
That is true, but the Ohio courts are entitled to their independent judgment on whether just cause
for delay has been shown. Nothing gives this Court the power to say whether they got it right or
wrong. The federal courts have repeatedly held that the time limit on 26(B) applications is an
adequate and independent Ohio procedural rule. Parker v. Bagley, 543 F.3d 859 (6th Cir.
2008)(noting that Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir.

8

2007)(distinguishing holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002);
Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th
Cir. 2009).
Stein asserts that the recent Supreme Court decisions in Martinez v. Ryan, 566 U.S. ___,
132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911,
185 L. Ed. 2d 1044 (2013), mean that the failure of the State to provide Stein with effective
counsel in his 26(B) proceeding excuses his failure to present the defaulted claims on direct
appeal (Objections, Doc. No. 20, PageID 1296). Indeed, he claims his situation is “virtually
identical to Martinez and Trevino.” Id.
In Martinez, the Supreme Court held:
[W]hen a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).
132 S. Ct. at 1318-19 (emphasis added). Most of the claims the Report found to be procedurally
defaulted were trial court error claims, not ineffective assistance of trial counsel claims. Most of
them depend on evidence of record and therefore should have been raised on direct appeal, rather
than in a collateral proceeding. Stein had appointed counsel on direct appeal. To the extent he
asserts his claims were not raised because he had ineffective appellate counsel, he has forfeited
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that claim by filling his 26(B) too late as concluded above. The Sixth Circuit has expressly held
that Martinez does not apply to excuse procedural default in presenting an ineffective assistance
of appellate counsel claim. Hodges v. Colson, 711 F.3d 589, 603 (6th Cir. 2013).
In sum, Stein has not excused his procedural default failing to raise most of his claims on
direct appeal.

2.

Failure to File a Petition for Post-Conviction Relief

The Report concludes Grounds for Relief Five, Ten, and Nineteen were procedurally
defaulted because they depend on evidence outside the record and Stein never filed a petition for
post-conviction relief under Ohio Rev. Code § 2953.21 (Doc. No. 11, PageID 1245, 1248, 1253)
Stein argues he could not have filed a post-conviction petition because he had appellate counsel
and Ohio forbids hybrid representation.
Ohio’s prohibition on hybrid representation only applies to prevent that representation in
the same proceeding. The appointment of counsel for direct appeal does not encompass an
appointment for post-conviction and this Court is unaware of any Ohio authority holding that a
represented appellant cannot file a post-conviction petition pro se. Stein cites none.

3.

Failure to File a Direct Appeal to the Supreme Court of Ohio

On several claims the Report found a procedural default in Stein’s failure to take a direct
appeal to the Ohio Supreme Court from the direct appeal decision of the Second District
(Grounds for Relief Two and Seven, Doc. No. 11, PageID 1240, 1246). Stein argues this failure

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is excused by his filing the 26(B) application and by his appeal to the Ohio Supreme Court from
denial of that application. However, he cites no law holding that either of these applications can
substitute for direct appeal. The whole purpose of a 26(B) application is to raise claims that were
omitted on direct appeal, not to reargue claims that were presented but not accepted. The same
limitation applies to appeal from denial of a 26(B) application.

Individual Grounds for Relief

Stein’s individual Grounds for Relief are dealt with here only to the extent that his
Objections raise additional points requiring comment.

Ground Eight: Admission of Prejudicial Testimony

In his Eighth Ground for Relief, Stein asserts he was deprived of a fair trial when the trial
judge allowed testimony by State’s witnesses that Stein had filed false reports with police about
being harassed by Ms. Mausolf (Petition, Doc. No. 1-2, PageID 18). The Report concluded this
Ground was procedurally defaulted, but also not cognizable as a federal constitutional claim.
(Report, Doc. No. 11, PageID 1247, citing Bugh v. Mitchell, 329 F.3d 496, 512 (6th 2003)).
Stein objects that Bugh only addressed the admission of prior bad acts under the Federal
Rules of Evidence which do not apply in state criminal proceedings (Objections, Doc. No. 20,
PageID 1300). He relies instead on McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993). McKinney
is, of course, not precedent from the Sixth Circuit. More importantly, it was decided before the
Antiterrorism and Effective Death Penalty Act which limited our authority to grant the writ to

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cases where the state decision was contrary to or an unreasonable application of United States
Supreme Court precedent. McKinney does not cite any Supreme Court precedent which would
be offended by the evidence admitted here.
Stein also misreads Bugh v. Mitchell, supra. There the Sixth Circuit expressly held “[t]here
is no clearly established Supreme Court precedent which holds that a state violates due process
by permitting propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329
F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to reach the issue in Estelle
v. McGuire, 502 U.S. 62 (1991).

Ground Nine: Juror Note-Taking

In his Ninth Ground for Relief, Stein asserts the trial judge deprived him of his
constitutional rights by not allowing the jury to take notes (Petition, Doc. No. 1-2, PageID 19).
The Report rejected this claim as procedurally defaulted, but also noted that no Supreme Court
case law held that there was a constitutional right to have jurors take notes. (Report, Doc. No.
11, PageID 1247).
Stein objects, but merely says “Ohio jurors are in fact allowed to take notes in complex
cases under state rules.” (Objections, Doc. No. 20, PageID 1300.) Stein cites no authority. The
Ohio rule in question is Ohio R. Crim. P. 24(I) which provides that an Ohio trial “court, after
providing appropriate cautionary instructions, may permit jurors who wish to do so to take notes
during a trial.” The rule gives the trial judge discretion; it does not purport to create any right in
a criminal defendant to insist that jurors be permitted to take notes. And in any event, even if it
were a state-created procedural right of a defendant, that would not make it required as a matter

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of constitutional law. Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993),

Grounds Twelve and Thirteen: Unconstitutional Seizure of Evidence

In Grounds Twelve and Thirteen, Stein asserts evidence was seized from him
unconstitutionally. Although he labels these Grounds as arising under the Fourth, Fifth, Sixth,
and Fourteenth Amendments, in fact such claims sound only in Fourth Amendment terms, as
applied to the States under the Fourteenth Amendment. The Report rejected the claims as
procedurally defaulted and also as non-cognizable under Stone v. Powell, 428 U.S. 465 (1976).
Stein objects (Doc. No. 20, PageID 1301) that his trial counsel was ineffective for not
appealing Judge Huffman’s denial of the motion to suppress, but the obligation to raise issues on
appeal falls on the appellate attorney, not the trial attorney.

Ground Seventeen: Allowance of Hearsay, Speculation, and Leading Questions

In his Seventeenth Ground for Relief, Stein complains that the trial court allowedhearsay,
speculation, and leading questions (Petition, Doc. No. 1-2, PageID 27). The Report concluded
this Ground for Relief was both procedurally defaulted and non-cognizable because it raised only
state evidentiary law objections (Report, Doc. No. 11, PageID 1251-52). Stein objects that
violation of a state evidentiary rule can also be a violation of due process when it denies
fundamental fairness (Objections, Doc. No. 20, PageID 1301, citing Walker v. Engle, 703 F.2d
959 (6th Cir. 1983)).
Stein is correct that where an evidentiary error is so egregious that it results in a denial of

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fundamental fairness, it may violate due process and thus warrant habeas relief. Bey v. Bagley,
500 F.3d 514, 519-20 (6th Cir. 2007); Bugh v. Mitchell, 329 F.3d 496 (6th Cir. 2003), citing
Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2000). Courts have, however, defined the
category of infractions that violate fundamental fairness very narrowly. Bugh, quoting Wright v.
Dallman, 999 F.2d 174, 178 (6th Cir. 1993)(quoting Dowling v. United States, 493 U.S. 342, 352
(1990)). “Generally, state-court evidentiary rulings cannot rise to the level of due process
violations unless they ‘offend[] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542,
552 (6th Cir. 2000), quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996). The Supreme Court
has defined very narrowly the category of infractions that violate fundamental fairness. Bey v.
Bagley, 500 F.3d 514 (6th Cir. 2007), citing Dowling v. United States, 493 U.S. 342, 352
(1990)(Identification from a trial which resulted in an acquittal could be introduced at second
trial for similarities.) Stein has not shown that any of the evidentiary problems of which he
complains comes within that narrow class of evidentiary violations which renders a trial
fundamentally unfair.

Ground Nineteen: Admission of Evidence Which Had Been Tampered With

In his Nineteenth Ground for Relief, Stein claims the trial court admitted evidence which
had been tampered with, i.e., that the wire recordings and transcripts of the recordings offered at
trial were different from those produced in discovery and somehow withheld exculpatory
evidence from the jury.
The Report rejected this claim on the ground Stein had not shown any constitutional

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violation (Report, Doc. No. 11, PageID 1252-53). Stein objects that if this were correct, a State
could convict a defendant with “planted evidence, manufactured evidence, or no evidence at all. .
. .” (Objections, Doc. No. 20, PageID 1302.) That argument is a red herring. The question of
whether evidence is authentic is a question for the trial judge and there is no constitutional right
under which a habeas court can review an authenticity ruling. Planted or manufactured evidence
would present a quite different case.

Ground Twenty-Three: Failure of the Court of Appeals to Reconsider its Rule 26(B)
Decision

In his last Ground for Relief, Stein claims the Second District Court of Appeals deniedhim
access to the courts when it refused to reconsider its decision on his 26(B) Application (Petition,
Doc. No. 1-2, PageID 33). The Report found this claim was without merit because the court of
appeals did in fact reconsider its decision and write an opinion on what it concluded. Stein
objects, but offers no Supreme Court authority to shows he was entitled as a matter of due
process to more reconsideration than he got. Reconsidering a decision does not mean changing
it.

Supplemental Report

The Supplemental Report is based on the Magistrate Judge’s having listened to the
testimony Stein says is perjured and finding no evidence of perjury. Stein’s Objections (Doc.
No. 20, PageID 1303) confuse proving a whole conspiracy with proving a single overt act in
furtherance of the conspiracy.

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Conclusion

Based on the foregoing analysis, it is respectfully recommended that Stein’s Objections
be stricken and the Petition be dismissed with prejudice on the basis of the original Report.
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 frivolous and therefore should not be permitted to proceed in forma pauperis.

March 2, 2015.
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
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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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