Boyd v. Warden, Lebanon Correctional Institution

Filing 3

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition in this case be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a ce rtificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/15/2020. Signed by Magistrate Judge Michael R. Merz on 6/30/2020. (kpf)(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
TYREZ BOYD,
Petitioner,

:

- vs -

Case No. 3:20-cv-265
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

WARDEN,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action pursuant to 28 U.S.C. § 2254 1, brought pro se by Petitioner
Tyrez Boyd, is before the Court for initial review pursuant to Rules 4 of the Rules Governing §
2254 cases. That rule provides:
[T]he clerk must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must promptly examine
it. If 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.
As with all habeas corpus cases filed at the Dayton location of court 2, the case is referred
to the undersigned for report and recommendations under General Order Day 13-01. Ultimate

1

Although Boyd filed his Petition on the form provided by the Judicial Conference for habeas corpus actions under
28 U.S.C. § 2241, Magistrate Judge Karen L. Litkovitz correctly interpreted it as an attack on Boyd’s state court
conviction which is properly brought under 28 U.S.C. § 2254 (ECF No. 2).

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Although Boyd filed his Petition in Cincinnati, Magistrate Judge Litkovitz ordered it transferred to Dayton because
the underlying conviction occurred in a county served by the Dayton location of court. Id.

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decision of the case remains with District Judge Rice.
Boyd reports that he was convicted in the Court of Common Pleas of Clark County, Ohio,
and sentenced May 24, 2018 (Petition, ECF No. 1, PageID 1). He appealed to the Ohio Second
District Court of Appeals which affirmed his conviction and sentence. State v. Boyd, No. 2018CA-68, 2019-Ohio-1902 (Ohio App. 2nd Dist. May 17, 2019). Boyd did not timely appeal to the
Supreme Court of Ohio; when he sought a delayed appeal, he was turned down on February 4,
2020. State v. Boyd, 157 Ohio St. 3d 1561, 2020-Ohio-313. He does not report any other attempts
at state court remedies, but filed his Petition here on June 26, 2020. 3
Boyd pleads the following grounds for relief:
Ground One: Maximum Sentence to a First Time Offender
Supporting Facts: Forty-two years
Ground Two: Manifest Weight of the Evidence
Supporting Facts: No DNA on cap that suspect wore. Admitted
to being cohersed [sic] on stand.
Ground Three: Ally [sic] Offenses.
Supporting Facts: All agg. robberies have elements of kidnapping
or abduction.
Ground Four: Double Jeopardy
Supporting Facts: Two indictments for same case under different
case numbers.
(Petition, ECF No. 1, PageID 6-7).

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Because Boyd did not timely appeal to the Supreme Court of Ohio, his conviction became final on the last day he
could have done so, forty-five days after the decision of the Second District, or July 2, 2019. S.Ct.Prac.R. 6.01(A)(1).
He claims he deposited his Petition in the prison mail system on June 9, 2020 (Petition, ECF No. 1, PageID 8). But
even if the Court counted the postmark date of June 24, 2020, Boyd’s Petition would still be filed within the one-year
statute of limitations.

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Analysis

Ground One: Imposition of Maximum Sentence on a First-Time Offender

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); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248, 253 (6th Cir. 2018) (Thapar, J., concurring in part).
As a pro se litigant, Boyd is entitled to a liberal construction of his pleadings. Haines v.
Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Applying
Haines, the Magistrate Judge reads Ground One as raising a claim that his sentence is
disproportionate to his crime in violation of the Cruel and Unusual Punishment Clause of the
Eighth Amendment. The Supreme Court set the standard for such claims in Harmelin v. Michigan:
The Eighth Amendment proportionality principle also applies to
noncapital sentences. In Rummel v. Estelle, 445 U.S. 263, 63
L.Ed.2d 382, 100 S.Ct. 1133 (1980), we acknowledged the existence
of the proportionality rule for both capital and noncapital cases, id.,
at 271-274, and n. 11, but we refused to strike down a sentence of
life imprisonment, with possibility of parole, for recidivism based
on three underlying felonies. In Hutto v. Davis, 454 U.S. 370, 374,
70 L.Ed.2d 556, 102 S.Ct. 703, and n. 3 (1982), we recognized the
possibility of proportionality review, but held it inapplicable to a 40year prison sentence for possession with intent to distribute nine
ounces of marijuana. Our most recent decision discussing the
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subject is Solem v. Helm, 463 U.S. 277, 77 L.Ed.2d 637, 103 S.Ct.
3001 (1983). There we held that a sentence of life imprisonment
without possibility of parole violated the Eighth Amendment
because it was “grossly disproportionate” to the crime of recidivism
based on seven underlying nonviolent felonies. The dissent in Solem
disagreed with the Court's application of the proportionality
principle but observed that in extreme cases it could apply to
invalidate a punishment for a term of years. Id., at 280, n. 3. See also
Hutto v. Finney, 437 U.S. 678, 685, 57 L. Ed. 2d 522, 98 S. Ct. 2565
(1978) (dicta); Ingraham v. Wright, 430 U.S. 651, 667, 51 L. Ed. 2d
711, 97 S. Ct. 1401 (1977) (dicta).
501 U.S. 957, 997-998 (1991) (Kennedy, J., concurring in part). The United States Court of
Appeals for the Sixth Circuit “adheres to the ‘narrow proportionality principle’ for evaluating
Eighth Amendment claims articulated in Harmelin.” United States v. Young, 847 F.3d 328, 363
(6th Cir. 2017), citing United States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010); United States v.
Hill, 30 F.3d 48, 50-51 (6th Cir. 1994).
Boyd made a claim that his sentences violated Ohio statutes on sentencing which embody
principles of Eighth Amendment proportionality. The Second District rules as follows:
{¶ 25} The fourth assignment of error alleges:
BOYD’S SENTENCE IS TOO LONG IN VIOLATION OF HIS
RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION,
AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.
Boyd contends that the trial court erred by ordering him to serve
several of the sentences consecutively. He also contends that the
court erred by imposing a third consecutive firearm-specification
sentence.
{¶ 26} “R.C. 2953.08(G)(2) requires an appellate court to review
the entire record to determine if the sentence is contrary to law, and
to evaluate whether the record clearly and convincingly does not
support the statutory findings required to impose consecutive
sentences. If the ‘reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences
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should be upheld.’” State v. Kay, 2d Dist. Montgomery No. 26344,
2015-Ohio-4403, ¶ 13, quoting State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. This is an “extremely
deferential standard of review.” State v. Rodeffer, 2013-Ohio-5759,
5 N.E.3d 1069, ¶ 31.
{¶ 27} Boyd contends that ordering him to serve the sentences on
the underlying felony counts consecutively was not supported by the
record. He says that the trial court improperly found that the events
constituted a course of conduct.
{¶ 28} “[B]ecause R.C. 2929.41(A) creates a presumption in favor
of concurrent sentences for most felony sentences, our review of the
record must determine whether the presumption was overcome by
the trial court’s findings set forth in R.C. 2929.14(C)(4).” (Citation
omitted.) Kay at ¶ 15. R.C. 2929.14(C)(4) permits a court to require
that an offender serve prison terms consecutively if the court finds
that (1) “the consecutive service is necessary to protect the public
from future crime or to punish the offender,” (2) “consecutive
sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the
public,” and (3) one of the circumstances described in division
(C)(4)(a), (b) or (c) is present.
{¶ 29} Here, the trial court made the required consecutive-sentence
findings, including the circumstance in division (C)(4)(b) that “at
least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any
of the courses of conduct adequately reflects the seriousness of the
offender's conduct.” We have said that “course of conduct” “may be
established by factual links including time, location, weapon, cause
of death or similar motivation." Kay at ¶ 19, citing State v. Short,
129 Ohio St. 3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 144. We
think that Boyd's crimes in this case were plainly committed as part
of one course of conduct—he kidnapped the victims precisely in
order to steal drugs from the pharmacy. We note too that the trial
court found that the victims of the offense “suffered serious
psychological harm as a result of [these] offenses.” (Sentencing Tr.
29). Consecutive sentences are not unsupported by the record in this
case.
Boyd, 2019-Ohio-1902. Although Boyd did not expressly mention the Eighth Amendment, he did
claim his sentence was unconstitutional, not just a violation of the Ohio sentencing statutes. The
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Second District did not mention the Eighth Amendment or any other portion of the Federal
Constitution in deciding this Assignment of Error. Nevertheless, because a constitutional claim
was squarely presented, this Court must treat the Second District’s decision as deciding that claim
on the merits. Harrington v. Richter, 562 U.S. 86 (2011).
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); Richter, 562 U.S. 86; 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). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state
court decision was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.
The Second District’s decision here is not an objectively unreasonable application of the
Supreme Court precedent cited above. If forty years is not an unconstitutional sentence for
possession of nine ounces of marijuana, Hutto, 454 U.S. at 374, then forty-two years is hardly
disproportionate for kidnapping seven pharmacy employees at gunpoint in order to steal a large
quantity of drugs undoubtedly more deleterious when abused than is marijuana.
Boyd’s First Ground for Relief should therefore be dismissed on the merits.

Ground Two: Manifest Weight of the Evidence

In his Second Ground for Relief, Boyd asserts his conviction is against the manifest weight
of the evidence, because none of his DNA was recovered from the cap he was wearing and he

6

apparently testified that he was coerced into committing the crime.
A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener,
534 F.2d 1232, 1234 (6th Cir. 1986). Under a weight of the evidence standard, the appellate court
sits as a thirteenth juror and re-weighs the evidence. A federal habeas corpus court is not permitted
to re-weight the evidence in this fashion.
On appeal Boyd claimed in his second assignment of error that there was insufficient
evidence to convict. The Second District considered his insufficiency and manifest weight claims
together
{¶ 20} Boyd argues that the evidence was insufficient to prove that
he was the one who committed the crimes and that his convictions
were against the manifest weight of the evidence.
{¶ 21} “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt.” State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. After reviewing the evidence in the light most favorable to
the prosecution, the reviewing court must determine if “any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Id. “[I]n a review of the
sufficiency of the evidence, the court does not engage in a
determination of the witnesses’ credibility.” State v. Goff, 82 Ohio
St.3d 123, 139, 1998-Ohio-369, 694 N.E.2d 916 (1998).
{¶ 22} In contrast, when an appellate court considers a manifestweight-of-the-evidence challenge, "'[t]he 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.'" State v. Thompkins, 78 Ohio St.3d
380, 387, 1997- Ohio 52, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717
(1st Dist. 1983).

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{¶ 23} The evidence presented at trial left little doubt that Boyd was
one of the perpetrators. The victims and the police officer who
responded all identified Boyd as the person who robbed the
pharmacy and tied up the victims. Officer Jenkins, who initially saw
him running through the pharmacy with the bag of drugs and then
chased him on foot, identified Boyd at the scene and in court. The
clothes that Boyd was wearing when he was booked into jail
matched the clothes that the perpetrator was wearing in the security
video and video stills. Also, all seven victims identified him as the
person who robbed the store and tied them up. Finally, Boyd’s
fingerprints were found on the bag of recovered drugs. That the jury
believed all this evidence over Boyd's testimony that he was not the
perpetrator is not surprising. In this case, the sufficiency and
manifest weight of the evidence were not close questions.
{¶ 24} The second and third assignments of error are overruled.
Boyd, 2019-Ohio-1902.
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
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Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, “deference should be given to the trier[-]of-fact’s verdict under Jackson,” and then to the
appellate court’s “consideration of that verdict, as dictated by AEDPA.” Tucker v. Palmer, 541
F.3d 652, 656 (6th Cir. 2008); accord: Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam);
Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc). Notably, “a court may sustain a
conviction based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595
F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, “it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S.
1, ___, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). And
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second, on habeas review, “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U. S.
766, 773, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam); Parker, 567 U.S at 43. The federal
courts do not make credibility determinations in reviewing sufficiency of the evidence claims.
Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
In sum, read as a manifest weight claim, Boyd’s Second Ground is not cognizable in habeas
at all. Read as an insufficient evidence claim, it received a decision from the Second District which
is entitled to deference from this Court because it is neither an unreasonable application of Jackson
nor an unreasonable determination of the facts based on the evidence produced.

Ground Three: Robbery, Kidnapping and Abduction are Allied Offenses of Similar Import

In his Third Ground for Relief, Boyd claims his offenses of conviction are allied offenses
of similar import. Under Ohio Revised Code § 2941.25, such allied offenses are to be merged
after the jury returns a verdict. Boyd did not raise this claim on appeal to the Second District, but
as that court pointed out, there were seven counts of kidnapping. Boyd, 2019-Ohio-1902 at ¶ 2.
These were not allied offenses of similar import because there were seven different victims. Under
some circumstances, Ohio law requires the merger of robbery and kidnapping offenses, but
because Boyd did not raise this claim on appeal, this Court does not have the benefit of the Second
District’s reasoning on the question.
In any event, to the extent Ohio Revised Code § 2941.25 is intended to protect the same
interests as the Double Jeopardy Clause, robbery and kidnapping do not count as the same crime
10

under double jeopardy analysis because each crime has an element not found in the definition of
the other. The test for whether two offenses constitute the same offense for Double Jeopardy
purposes is “whether each offense contains an element not contained in the other[.]” United States
v. Dixon, 509 U.S. 688, 696 (1993), citing Blockburger v. United States, 284 U.S. 299, 304 (1932).
Boyd’s Third Ground for Relief does not state a claim upon which habeas corpus relief can
be granted.

Ground Four: Double Jeopardy

In his Fourth Ground for Relief, Boyd claims his rights under the Double Jeopardy Clause
were violated because the grand jury returned two separate indictments under the same case
number.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
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). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth
Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
As the Second District noted, the relevant facts are that:
{¶ 2} Boyd was charged in 2017 with one count of aggravated
robbery and six counts of kidnapping, all felonies of the first degree.
He was charged in 2018 with an additional count of kidnapping and
one count of aggravated trafficking in drugs, both first-degree
felonies, and eight counts of aggravated possession of drugs, all
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second-degree felonies. Each of the counts in both cases included a
3-year firearm specification. The two cases were consolidated and
tried to a jury.

Boyd, 2019-Ohio-1902. The reason for separate indictments is not recited, but it could easily have
been the need to wait for crime lab analysis of the drugs before taking the drug counts to the grand
jury.
Regardless of the reasons for the separation, it did not involve any violation of the Double
Jeopardy Clause. All of the charges arose out of the same robbery incident. There is no indication
that the second indictment included any of the same offenses as the first indictment. And the
Double Jeopardy Clause is not concerned with what case numbers the states assign to various
criminal matters. Boyd’s fourth ground for relief should be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition in this case be dismissed with prejudice. Because reasonable jurists would not disagree
with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability
and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and
should not be permitted to proceed in forma pauperis.

June 30, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6. 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. 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.

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