Gamble v. London Correctional Institution, Warden

Filing 3

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.re 1 Petition for Writ of Habeas Corpus filed by Barton D Gamble. Objections to R&R due by 7/17/2015. Signed by Magistrate Judge Michael R. Merz on 06/29/15. (pb)(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
BARTON D. GAMBLE,
Petitioner,

:

- vs -

Case No. 3:15-cv-233
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

TERRY TIBBALS, Warden,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to notify the petitioner.”
Gamble was convicted of two counts of rape and one count of kidnapping in the
Montgomery County Common Pleas Court on January 25, 2013. He was then sentenced to
eleven years imprisonment which he is serving in Respondent’s custody. He appealed to the
Second District Court of Appeals which affirmed the conviction. State v. Gamble, 2014-Ohio1277, 2014 Ohio App. LEXIS 1208 (2nd Dist. 2014).1 The Supreme Court of Ohio declined
further review. State v. Gamble, 139 Ohio St. 3d 1431 (2014).
Gamble then timely filed his Petition for writ of habeas corpus in this Court, pleading
1

References hereinafter to “State v. Gamble” are to this decision.

1

three grounds for relief as follows:
Ground One: The Tenth2 District Court of Appeals decision
violated Petitioner's Right to Due Process
Supporting Facts: Petitioner's asserts that the tenth District Court
of appeals decision to allow the trial court's decision to stand, that
clearly committed prejudicial error violated Due Process in this
case, as a result of the Manifest Weight of the Evidence. In Present
case, the Jury clearly lost its way as Petitioner admitted that he had
sex with the victim in this case. The evidence and testimony of
with witnesses all demonstrated the evidence was against the
manifest weight of the evidence in case. The Jury clearly lost its
way when the Jury ask the question: Could they see the Sane nurse
testimony, which clearly demonstrated that the Jury lost its way in
this case.
Ground Two: Ineffective Assistance of Trial Counsel
Supporting Facts: Petitioner asserts that the Tenth District Court
of Appeals decision was Contrary to Well Established Federal
Law, based on trial counsel(s) deficiency at trial, by failing to
object at trial to State's repeated references to Petitioner's status as
a recipient of the public assistance: The trial court failed to object
to the re-play of the testimony of the State's expert during
deliberations and other errors which alone or cumulatively
demonstrate trial counsel's ineffectiveness.
Ground Three: Conviction obtained by a violation of Due process
without properly satisfying the standards for Expert Testimony.
Supporting Facts: The Sane Nurse was allowed to testify to the
guilt or innocence of petitioner without properly satisfying the
standards for expert testimony in this case. The Tenth District
Court of Appeals decision was unreasonable to consider the
[SANE] nurse as an "expert witness" without properly considering
the factors in the Rules of Evidence 703. Petitioner asserts this
violation was Contrary to Well Established Federal and State
Laws. In this case, the trial Courts error created prejudice and
affected Petitioner's Constitutional Right to a fair trial and Equal
Protection of the Law. Therefore the testimony of the [SANE]
nurse in this case was erroneously admitted, when the nurse was
not properly determined to be an "Expert witness" Petitioner
2

Gamble refers to the Tenth District Court of Appeals. However, appeals from the Montgomery County Common
Pleas Court are taken to the Second District Court of Appeals as Gamble acknowledges at Doc. No. 1, PageID 2, ¶
9.

2

asserts nurse Kinley testimony was based on Unreliable, Scientific,
technical or other specialized information that would have been
required to be consider a expert testimony in this case. The
decision of the Tenth District was Contrary to well established
Federal Law and Contrary thereof.
(Petition, Doc. No. 1, PageID 4.)

Analysis

Ground One: Conviction is Against the Manifest Weight of the Evidence

In his First Ground for Relief, Gamble asserts his conviction is against the manifest
weight of the evidence. This does not state a claim upon which relief can be granted in federal
habeas corpus.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (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 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). A weight of the evidence claim is not a federal constitutional claim.
Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).
In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Ohio Supreme Court reaffirmed the
important distinction between appellate review for insufficiency of the evidence and review on

3

the claim that the conviction is against the manifest weight of the evidence. It held:
In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law. State v.
Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.
In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida (1982), 457
U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663,
citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560. Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence, that
court may nevertheless conclude that the judgment is against the
weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55
O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence
concerns "the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having
the burden of proof will be entitled to their verdict, if, on weighing
the evidence in their minds, they shall find the greater amount of
credible evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but depends
on its effect in inducing belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the
appellate court sits as a " 'thirteenth juror' " and disagrees with the
factfinder's resolution of the conflicting testimony. Tibbs, 457
U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v.
Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485
N.E.2d 717, 720-721 ("The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. The discretionary power to grant
a new trial should be exercised only in the exceptional case in
which the evidence weighs heavily against the conviction.").
Id. at at 387. In State v. Martin, 20 Ohio App. 3d 172 (1st App. Dist. 1983)(cited approvingly by
the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest weight of the
evidence claim:
In considering the claim that the conviction was against the
manifest weight of the evidence, the test is much broader. The
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court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of the witnesses
and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial
ordered. …
Id. at ¶3 of the syllabus. The consequences of the distinction are important for a criminal
defendant. The State may retry a case reversed on the manifest weight of the evidence; retrial of
a conviction reversed for insufficiency of the evidence is barred by the Double Jeopardy Clause.
Tibbs v. Florida, 457 U.S. 31, 41 (1982).
A state court finding that the verdict is not against the manifest weight of the evidence
implicitly also holds that there is sufficient evidence. Nash v. Eberlin, 258 Fed. Appx. 761, 2007
U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, 2011 U.S. Dist. LEXIS 65082
(N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden, 2011 U.S. Dist. LEXIS 54131 (S.D.
Ohio Apr. 27, 2011)(Merz, M.J.).
Because Gamble’s manifest weight claim does not state a claim of federal constitutional
violation it should be dismissed.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Gamble claims he received ineffective assistance of trial
counsel when his attorney did not object to repeated references to his status as a recipient of
public assistance or to the replaying of the SANE nurse’s testimony during jury deliberations. In
his Supplement Brief, he adds a claim that counsel should have objected to leading questions and
that counsel should have objected to the nurse’s initial testimony.
A claim of ineffective assistance of trial counsel was presented to the Second District
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Court of Appeals which it decided as follows as to the sub-claims that Gamble pursues here:
A.

The

Claim

for

Ineffective

Assistance

of

Counsel

[*P23] The second assignment of error alleges that Gamble was
denied the effective assistance of trial counsel. The Sixth
Amendment gives a criminal defendant "'the right to the effective
assistance of counsel.'" Strickland v. Washington, 466 U.S. 668,
686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), quoting McMann v.
Richardson, 397 U.S. 759, 771, fn. 14, 90 S.Ct. 1441, 25 L.Ed.2d
763 (1970). An ineffective-assistance-of-counsel claim has two
elements. "First, the defendant must show that counsel's
performance was deficient." Id. at 687. "[T]he proper standard for
attorney performance is that of reasonably effective assistance."
(Citations omitted.) Id. "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." Id. at 687-688. "Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable." Id. at
687. Gamble contends that the cumulative effect of eight of his
trial counsel's failures to object amount to deficient performance
that prejudiced the defense.
[*P24] First, Gamble contends that counsel should have objected
to the prosecutor's repeated use of leading questions. “A leading
question is 'one that suggests to the witness the answer desired by
the examiner.'" State v. Diar, 120 Ohio St.3d 460, 2008-Ohio6266, 900 N.E.2d 565 at ¶ 149, quoting 1 McCormick, Evidence,
Section 6 (5th Ed.1999). Gamble gives one example, which
occurred during A.'s direct examination:
Q The only monies that were talked about were the initial 500 to
help you—
A Yes.
Q —and then on the back end, a thousand to shut you up, I guess?
A Yes.
(Tr. 196-197). These questions are not leading. The prosecutor was
merely restating A.'s earlier testimony:

6

A * * * He [Gamble] then said that he wanted to offer me
$1,000.00 not to say anything.
***
Q Okay. So now there's another offer of money to you—
A Yes.
Q —for $1,000 to keep quiet?
A Yes.
(Tr. 182).
[*P25] Gamble cites no other question that he alleges is leading.
[*P26] Second, Gamble contends that counsel should have
objected to Kinley's testimony about the superficial tears in A.'s
perineal area. Gamble contends that the testimony is irrelevant
because he was on trial for rape, which requires penetration. The
perineum, he points out, is not a penetrable opening. The testimony
is relevant. Penetration was not really an issue at trial, since
Gamble admitted that he had sex with A.. The primary issue was
whether the sex was by force or threat of force. Kinley testified
that these kinds of tears are often the products of blunt force to the
perineal area and are injuries consistent with sexual assault. The
testimony is relevant to the issue of force.
[Gamble’s third, fourth, fifth, and sixth claims made in state court
are not pursued here.]
[*P33] Seventh, Gamble contends that counsel should have
objected when the prosecutor asked him about using his subsidized
apartment for storage. Gamble testified that he had moved out of
the apartment but still had a five-month lease on it that he did not
want to break. He was living in a large Centerville house and
decided to downsize, Gamble said, so he bought a smaller house in
Huber Heights. The smaller house could not fit all of the stuff in
the large house, so he stored some of it in the apartment. The
prosecutor then said, "so you were basically using this government
subsidized-taxpayer funded apartment for people to live, you were
just using it as a storage facility?" (Tr. 530). Gamble says that the
prosecutor's question was highly prejudicial and irrelevant. Even if
the question concerned an irrelevant matter, we do not think that it
resulted in prejudice. In light of all the evidence, the absence of

7

this one statement would not have caused the jury to find him not
guilty.
[*P34] Lastly, Gamble contends that counsel should not have
agreed to let the jury read all of Kinley's testimony because this
gave undue weight to one witness's damaging testimony. "It is well
settled that a trial court, upon a request from the jury, 'may cause to
be read all or part of the testimony of any witness.'" State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,
¶123, quoting State v. Berry, 25 Ohio St.2d 255, 267 N.E.2d 775
(1971), paragraph four of the syllabus. Gamble fails to convince us
that, in this case, the jury should not have been allowed to rehear
the testimony. Given that the law allowed it, we cannot say that
counsel's agreement was unreasonable. We note too, as the state
points out, that the record does not indicate whether the jury
actually decided to re-hear Kinley's testimony. So any claim of
prejudice is "purely speculative." Id.
[*P35]

The

ineffective-assistance-of-counsel

claim

fails.

[*P36] The second assignment of error is overruled.

State v. Gamble, supra.
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. 86, 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).
As the Second District recognized, the leading case setting the standard for ineffective
assistance of trial counsel is Strickland v. Washington, 466 U.S. 668 (1984), where the Supreme
Court held:

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
8

has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S. 111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
Id. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313,
319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally Annotation,
26 ALR Fed 218.
9

Nothing in Judge Hall’s opinion for the Second District is contrary to or an objectively
unreasonable application of Strickland or any of its progeny. Specifically, it is not deficient
performance for an attorney to fail to raise a leading question objection when the question is not
leading. Nurse Kinley’s testimony about tears in the perineum is relevant because force is an
issue in a rape case and it was not therefore deficient performance to fail to object to that
testimony. Questions about Gamble’s use of a tax-subsidized housing unit for storage were
relevant to his credibility, since he had taken the witness stand. In any event, an objection would
likely have drawn the jury’s attention to the issue. Finally, the law permits a jury to re-hear all or
part of a witness’ testimony in the judge’s discretion and there is no showing of prejudice from
defense counsel’s agreement on the portion to be read.
Based on this review of the Second District’s decision, the Second Ground for Relief
should be dismissed.

Ground Three: Denial of Due Process by Use of Improper Expert Testimony

In his Third Ground for Relief, Gamble claims that Nurse Kinley was not properly
qualified as an expert witness and it therefore violated his due process rights to permit her to
testify against him as she did.
A claim about Nurse Kinley’s expert witness status was also presented on direct appeal
and decided as follows:
[*P37] The third assignment of error alleges that the trial court
erred by permitting Kinley to testify as an expert. Gamble focuses
on Kinley's testimony about A.'s perineal area injuries, contending
that this testimony does not satisfy the Evid.R. 702 standard for
expert testimony. [Footnote omitted.]

10

[*P38] Gamble says that Kinley's "failure to demand that the
'white vaginal discharge' exhibited by [the victim] be tested for
diagnosis and causation refutes any contention that Nurse Kinley's
testimony was 'based on reliable, scientific, technical or other
specialized information.' [Evid.R. 702(C)(1).] Thus, she eschewed
the opportunity to employ available scientific methods and so was
not performing as an 'expert' in this matter." (Appellant Brief, 25).
Contrary to Gamble's assertion, Kinley testified that she swabbed
the discharge and that the swab was sent away for testing. The
examination was Kinley's focus; the results of the testing were not
her concern. That she did not seek out the results says nothing
about her rape-examination expertise.
[*P39] The state did not formally offer Kinley as an expert, nor
did the trial court explicitly determine whether she qualified as an
expert.[Footnote omitted.] Typically, "[p]ursuant to Evid.R
104(A), the trial court determines whether an individual qualifies
as an expert * * *." (Citation omitted.) State v. Drummond, 111
Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 114. But if
there is no challenge to an expert's qualifications, all but plain error
is waived. Id. (saying that "[w]hile the state never formally
tendered Lambert as an expert, defense counsel never challenged
his qualifications to testify and thus waived all but plain error").
Gamble did not object to Kinley's qualifications, so he waived all
but plain error.
[*P40] We see no plain error here. The prosecutor asked Kinley
about her training and experience. Kinley said that she is certified
as a sexual assault nurse examiner. To get this certification, she
took specialized training, which included a 40 hour training course,
and to keep the certification, she participates in ongoing training
and does case reviews. Kinley has been certified for 15 years and
has been doing rape examinations for 21 years. On average, she
does around 10 examinations each year. Kinley has testified in
other cases about sexual assaults and examining sexual-assault
victims. And in one case, in which Kinley did not examine the
victim, she was specifically declared an expert witness.
[*P41] Kinley's training and experience qualify her to testify at
trial about sexual assault examinations and injuries. Compare State
v. Hartman, 93 Ohio St.3d 274, 286, 2001 Ohio 1580, 754 N.E.2d
1150 (2001) (no plain error; the expert's experience qualified him
to testify); State v. Baston, 85 Ohio St.3d 418, 423, 1999 Ohio 280,
709 N.E.2d 128 (1999) (no plain error; the expert's experience and
certifications qualified her to testify).
11

[*P42] The third assignment of error is overruled.
State v. Gamble, supra.
The Second District’s opinion demonstrates that Gamble’s Third Ground for Relief must
also be dismissed. First of all, he did not present the claim to the Ohio courts as a constitutional
claim, but rather as a claim under the Ohio Evidence Rules. In order to be preserved for merit
review in federal court, a constitutional claim must first be fairly presented to the state courts.
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 1506, 1516
(6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v.
Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The
claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581
F.3d 410, 418 (6th Cir. 2009). As noted above, this Court can only consider federal constitutional
claims; it cannot review the Ohio court’s application of the Ohio rules of Evidence.
Secondly, Gamble procedurally defaulted any claim he had that admission of Kinley’s
testimony was improper because his attorney failed to object and the Second District reviewed
the claim only for plain error.
Ohio’s contemporaneous objection rule is an adequate and independent state ground.
Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir.
2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982).
Reservation of authority to review in exceptional circumstances for plain error is not
sufficient to constitute application of federal law. Cooey v. Coyle, 289 F.3d 882, 897 (6th Cir.
2002); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000). A state appellate court’s review for plain
error is enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307,
337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell,
12

440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v.
Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)(plain error review does not constitute a
waiver of procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003).
Gamble’s Third Claim for Relief is barred by his procedural defaults in not fairly
presenting the claim to the state courts as a constitutional claim and by failing to make a
contemporaneous objection. Therefore the Third Claim for Relief should be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
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 frivolous and therefore should not be permitted to
proceed in forma pauperis.

June 29, 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
13

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).

14