Phillips v. Warden, Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MALCOLM PHILLIPS,

CASE NO. 2:19-CV-03021

Petitioner, JUDGE SARAH D. MORRISON

Magistrate Judge Kimberly A. Jolson

v.

WARDEN, NOBLE CORRECTIONAL

INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, and

the exhibits of the parties. For the reasons that follow, the Undersigned RECOMMENDS that

this action be DISMISSED.

I. FACTS AND PROCEDURAL HISTORY

Petitioner challenges his January 2014 convictions after a jury trial in the Franklin County

Court of Common Pleas on possession of drugs with a firearm specification and having a weapon

while under disability. The Ohio Tenth District Court of Appeals summarized the facts and

procedural history of the case as follows:

By indictment filed July 20, 2012, plaintiff-appellee, the State of Ohio, charged

appellant with one count of possession of cocaine, in violation of R.C. 2925.11, a

first-degree felony with an accompanying firearm specification, and one count of

having a weapon while under disability, in violation of R.C. 2923.13, a felony of

the third degree.

At trial, the state presented evidence that a trash pull conducted on January 27, 2012

at appellant’s residence produced a trace amount of cocaine and packaging

materials consistent with cocaine trafficking. A subsequent search warrant issued

on January 31, 2012, based in part on the result of the trash pull, yielded

approximately $5,000 in cash and a digital scale with a trace amount of cocaine on

it. The next day, February 1, 2012, appellant rented a storage unit at 5275 Gender

Road.

Two days later, on February 3, 2012, appellant was a passenger in his own vehicle

being driven by Bruce Wiggins. During a traffic stop and search of the vehicle,

police arrested appellant for possession of marijuana and cocaine. Police conducted

a search incident to arrest of appellant’s person and found an access card for the

storage unit. Later that day, police located the storage unit, and a police canine

alerted to the presence of a narcotics odor inside the unit. While police waited for

a search warrant to issue, two plain-clothes police officers guarding the unit saw

appellant driving his vehicle toward the unit. Two other men, Wiggins and Deandre

Green, were in the vehicle with appellant. The three men attempted to flee the

scene, but police eventually apprehended appellant.

Once the search warrant for the storage unit issued, police officers opened the unit

and found that it was largely empty. The only items in the storage unit were an

empty box and a black duffel bag. The duffel bag contained 138 grams of cocaine,

two firearms, and cash.

Following the trial, the jury returned guilty verdicts as to all counts. After a

sentencing hearing, the trial court sentenced appellant in a January 13, 2014

judgment entry to a term of imprisonment totaling 13 years. Appellant timely

appealed his conviction to this court, and that appeal is still pending. State v.

Phillips, 10th Dist. No. 14AP–79.2

On January 13, 2014, appellant filed a motion for a new trial based on newly

discovered evidence pursuant to Crim. R. 33(A)(6). Appellant included with his

motion an affidavit from Green. The trial court conducted a hearing on appellant’s

motion on February 21 and March 28, 2014. Green, appellant’s only witness at the

hearing, testified that he approached appellant’s counsel after appellant’s

sentencing to inform him that the drugs found in appellant’s storage unit actually

belonged to Wiggins.

According to Green’s testimony, Wiggins called Green a week before appellant’s

arrest to tell Green that he “had came [sic] up on some stuff like and he was going

to make a lot of money off of it.” (Feb. 21, 2014 Tr. Vol. I, 15–16.) Green

understood the “stuff” to mean drugs that Wiggins had stolen from someone else.

Green further testified that, on February 3, 2012, Wiggins called Green after

appellant’s arrest for drug possession. According to Green’s testimony, in this

conversation, Wiggins informed Green that appellant was going to jail, and

Wiggins said he needed to “find something to do with this other stuff that I got.”

(Feb. 21, 2014 Tr. Vol. I, 20.) Green then testified that, when he accompanied

Wiggins and appellant to the storage unit, it was Wiggins who yelled for appellant

to “pull off” and to “get out of here” after spotting the plain-clothes police officers.

(Feb. 21, 2014 Tr. Vol. I, 18.) When asked why he did not come forward with this

information before or during appellant’s trial, Green testified he “was scared, and

* * * didn’t want to get in no trouble also.” (Sic.) (Feb. 21, 2014 Tr. Vol. I, 22.)

Green also testified he did not realize appellant would face such a severe sentence

for these crimes.

In a decision and entry dated April 2, 2014, the trial court denied appellant’s motion

for a new trial. Appellant timely appeals.

State v. Phillips, 10th Dist. No. 11AP-362, 2014 WL 5768688, at *1–2 (Ohio Ct. App. Nov. 6,

2014). On November 6, 2014, the appellate court affirmed the trial court’s judgment. Id. Next,

the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Phillips, 142 Ohio

St. 3d 1466 (Ohio 2015).

The case then took an unexpected turn, which led to Petitioner seeking a new trial. The

issue ultimately was appealed, and the Tenth District explained what had happened:

{¶ 3} On February 24, 2016, the Franklin County Prosecutor’s Office sent a letter

to appellant’s counsel. In that letter, the prosecutor wrote that one of the state’s

witnesses at appellant’s trial, Tye Downard, who at the time was a detective with

the Reynoldsburg Police Department (“RPD”), had been arrested by the Federal

Bureau of Investigations and charged in federal court with possession with intent

to distribute drugs. Downard’s alleged conduct occurred between October 2015 and

February 2016. Downard killed himself in jail days after his arrest. In light of that

development, appellant filed a motion for leave to file a motion for new trial based

on newly discovered evidence, arguing in part that Downard’s testimony was no

longer credible. The state opposed appellant’s motion, arguing that Downard’s

alleged criminal conduct was not material to appellant’s defense and that Downard

played a very minimal role in appellant’s case.

{¶ 4} Shortly after filing his motion, appellant supplemented the motion with

evidence that another RPD officer involved in appellant’s case, Sergeant Shane

Mauger, had agreed to plead guilty in federal court to counts of conspiracy to

deprive persons of civil rights and federal program theft. The convictions were

based upon Mauger’s conspiracy with others to steal money and property that he

obtained from the execution of search warrants or other police actions. Appellant

also alleged that Mauger had filed search warrant affidavits that contained false

statements. Again, appellant challenged the credibility of Mauger’s testimony

during appellant’s trial based upon Mauger’s convictions. In its response, the state

emphasized the minimal role that Mauger played in appellant’s case.

{¶ 5} The trial court denied appellant’s motion for leave to file a motion for a new

trial. The trial court concluded that the evidence of Downard’s and Mauger’s

criminal conduct was not material to appellant’s defense because the case against

him was “overwhelmingly” handled by the Whitehall Police Department (“WPD”).

Although the trial court noted Downard’s and Mauger’s “small role” in the

beginning of the case, it concluded that the evidence against appellant was obtained

by the WPD and not by the RPD. The trial court also noted that appellant’s defense

at trial did not involve the credibility of either of these witnesses. Rather, his

defense was based on his assertion that the drugs and weapon found by the police

were not his.

State v. Phillips, 10th Dist. No. 17AP-21, 2017 WL 4334159, at *1–2 (Ohio Ct. App. Sept. 29,

2017). On September 29, 2017, the appellate court affirmed the judgment of the trial court. Id.

The Ohio Supreme Court again declined to accept jurisdiction. State v. Phillips, 153 Ohio St. 3d

1442 (Ohio 2018).

On July 12, 2019, Petitioner filed this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. He asserts the following claims:

1. The Defendant was denied a full and fair opportunity to present his Fourth

Amendment Claim of Unreasonable Search And Seizure during the State Court

Trial Proceedings.

Reynoldsburg Police Detectives Shane Mauger and Tye Downard executed the

search of Petitioner’s house at 5903 Little Brook Way, Columbus, Ohio 43232 on

January 31, 2012. Mauger’s affidavit was false and misleading and was presented

to the FCMC Judge (William Pollitt) who issued the Warrant to Search the house.

During the execution of the warrant to search drugs and money were seized.

Mauger kept some of the cocaine and US Currency that he seized for his personal

use. Evidence from this search was used to support the warrant to search the storage

unit. These facts were not disclosed to Petitioner during the trial proceedings.

Petitioner was not granted a full and fair opportunity to develop and present these

facts in State Court because his Petition for Leave to File the Motion for a New

Trial was denied and he was denied an Evidentiary Hearing.

2. Petitioner was denied Due Process and a Fair Trial.

The State failed to disclose the criminal activity of their trial witnesses Shane

Mauger and Tye Downard. Both were involved in on-going drug dealing and theft

at the time they testified in Petitioner’s trial. Mauger had presented false and

misleading testimony in an affidavit to support the search warrant of Petitioner’s

house, stole drugs and money during that search, and the evidence obtained during

that search was used to support the search warrant for the storage unit. Drugs and

money were also taken during an illegal search of the storage unite prior to the

warrant to search arriving at the storage unit. None of these facts have been

disclosed to Petitioner. The only facts that have been disclosed are the facts of the

federal criminal indictments of Mauger and Downard.

(Doc. 6 at 5–7).

It is the position of the Respondent that Petitioner’s claims do not provide a basis for relief.

(See generally Doc. 6).

II. STANDARD OF REVIEW

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) governs this case. The United State Supreme Court has

described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose claims have

been adjudicated in state court” and emphasized that courts must not “lightly conclude that a

State’s criminal justice system has experienced the ‘extreme malfunction’ for which federal habeas

relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562

U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks,

citations, and footnote omitted) (“AEDPA ... imposes a highly deferential standard for evaluating

state-court rulings, and demands that state court decisions be given the benefit of the doubt.”).

AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a

federal court from granting relief with respect to a “claim that was adjudicated on the merits in

State court proceedings” unless the state court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Further, the factual findings of the state court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by clear and convincing

evidence.

28 U.S.C. § 2254(e)(1).

Accordingly, “a writ of habeas corpus should be denied unless the state court decision was

contrary to, or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court, or based on an unreasonable determination of the facts in light

of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals

for the Sixth Circuit has summarized these high standards:

A state court’s decision is “contrary to” Supreme Court precedent if (1) “the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law[,]” or (2) “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives” at a

different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000). A state court’s decision is an “unreasonable application” under 28

U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule from [the

Supreme] Court’s cases but unreasonably applies it to the facts of the particular ...

case” or either unreasonably extends or unreasonably refuses to extend a legal

principle from Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362,

120 S.Ct. 1495, 146 L.Ed.2d 389.

Coley, 706 F.3d at 748–49. Ultimately, the burden of satisfying AEDPA’s standards rests with

the petitioner. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

III. DISCUSSION

As noted, Petitioner has raised two claims.

A. CLAIM ONE

In his first claim, Petitioner asserts that his convictions violate the Fourth Amendment and

that the state courts denied him a full and fair opportunity to litigate this claim. Specifically,

Petitioner argues that Reynoldsburg Police Detectives Mauger and Downard executed a warrant

at his home based on a false and misleading affidavit and then used evidence illegally seized from

his home to obtain a warrant to search his storage unit. Petitioner further claims that Mauger and

Downard unlawfully confiscated drugs and money for their own personal use. And he asserts that

he did not find out about the illegal conduct until after his trial. So, Petitioner argues, he could not

use the evidence of law enforcement’s illegal activity at the hearing on his motion to suppress or

use such evidence for impeachment purposes.

But Petitioner is asking too much of established Fourth Amendment precedent. Indeed,

Fourth Amendment claims do not provide a basis for federal habeas corpus relief so long as the

petitioner had a “full and fair opportunity” to raise the issue in the state courts, and “presentation

of the claim was not thwarted by any failure of the state’s corrective processes.” Machacek v.

Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (citing Stone v. Powell, 428 U.S. 465, 494–95 (1976)).

Often called the “Stone rule,” the reasoning behind the bar on such claims is two-fold:

One, the key purpose of federal habeas corpus is to free innocent prisoners. But

whether an investigation violated the Fourth Amendment has no bearing on whether

the defendant is guilty.[Stone v. Powell] at 490, 96 S.Ct. 3037. Two, exclusion is a

prudential deterrent prescribed by the courts, not a personal right guaranteed by the

Constitution. Any deterrence produced by an additional layer of habeas review is

small, but the cost of undoing final convictions is great. Id. at 493, 96 S.Ct. 3037.

Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013). Further, Ohio provides criminal defendants

a procedural mechanism whereby to raise a claim under the Fourth Amendment. Riley v. Gray,

674 F.2d 522, 526 (6th Cir. 1982). Thus, “[i]n the absence of a sham proceeding, there is no need

to ask whether the state court conducted an evidentiary hearing or to inquire otherwise into the

rigor of the state judiciary’s procedure for resolving the claim.” Wangler v. Sheldon, 2015 WL

13730919, at *10 (N.D. Ohio Oct. 19, 2015) (quoting Good, 729 F.3d at 639).

Here, the trial court conducted a hearing on Petitioner’s motion to suppress evidence.

(Transcript, Doc. 5-1). Petitioner then exercised his right to appeal the trial court’s decision in the

Ohio Court of Appeals and the Ohio Supreme Court. The state appellate court issued a lengthy

decision rejecting Petitioner’s claim under the Fourth Amendment. State v. Phillips, 2014 WL

6482778, at *6–12 (Ohio Ct. App. Nov. 20, 2014).

Importantly, Petitioner’s assertion that the state court erred does not affect Stone’s bar to

review of his claim in these proceedings. See Emerson v. Kelly, No. 1:14-cv-00809, 2015 WL

3968250, at *17 (N.D. Ohio June 30, 2015). Indeed, “the Sixth Circuit has made clear that a state

court ‘need do no more than take cognizance of the constitutional claim and rule in light thereof.’”

Id. (quoting Riley, 674 F.2d at 525).

Petitioner nonetheless argues that the State deprived him of a full and fair opportunity to

litigate his Fourth Amendment claim because he did not learn—until after his trial had

concluded—that officers Mauger and Downard had been involved in criminal activities during the

of their involvement in his case, and the trial court refused to grant him an evidentiary hearing for

further factual development of this claim upon the filing of his motion for a new trial. The Court

is not persuaded. Notably, the state appellate court found that Mauger and Downard had limited

involvement in Petitioner’s case. See State v. Phillips, 10th Dist. No. 17AP-21, 2017 WL 4334159,

at *3–4 (Ohio Ct. App. Sept. 29, 2017). These findings are presumed to be correct, 28 U.S.C.

2254(e)(1), and Petitioner does not dispute them. Thus, based upon the record, neither Mauger

nor Downard played a significant role in the events leading up to or supporting the search of the

automobile or the storage bin, which formed the basis for the charges against Petitioner.

Given these facts, Brown v. Berghuis, 638 F.Supp.2d 795 (E.D. Mich. July 29, 2009), is

useful to the analysis here. In that case, the United States District Court for the Eastern District of

Michigan rejected the argument that the testimony of police, subsequently charged and convicted

in federal court on criminal charges—even if deliberately false—had deprived the defendant of a

full and fair opportunity to litigate his Fourth Amendment claim:

[P]etitioner has cited no case law supporting his claim that Lt. McNamara’s alleged

perjury at the suppression hearing deprived him of a full and fair opportunity to

litigate his Fourth Amendment claim. On the contrary, the little case law that exists

addressing this issue suggests the opposite. See Sneed v. Smith, 670 F.2d 1348, 1356

(4th Cir. 1982) (Stone rule “would of course be swallowed if impairment [of a full

and fair opportunity to litigate] could be shown simply by showing error—whether

of fact or law—in the state court proceeding. Sneed’s suggestion of perjury is

merely a suggestion of factual error.”); Carr v. Runnels, No. C 03–1369, 2007 WL

133971, at *5 (N.D.Cal. Jan. 16, 2007) (although the use of perjured *812 testimony

may state an independent due process claim, it “does not call into question the

adequacy of the state hearing procedures with which petitioner was provided.”);

Hernandez v. Filion, No. 05 Civ. 4046, 2005 WL 3164063, at *6 (S.D.N.Y. Nov.

29, 2005) (claim that officers committed perjury at the suppression hearing “seeks

to attack the outcome of the suppression hearing” and “does not mean that [the

state] provided [petitioner] with ‘no corrective procedures’ at all to redress the

alleged Fourth Amendment violations. . . . Nor can it be said that the alleged perjury

caused [petitioner] to be ‘precluded from using’ the suppression mechanism. Thus,

Stone v. Powell bars [petitioner’s] claim regarding perjury at the suppression

hearing.”); United States ex rel. Pertz v. Carter, No. 97 C 2066, 1998 WL 42273,

at *3 (N.D.Ill. Jan. 29, 1998) (finding claim barred by Stone even though claim

included allegation of perjury at suppression hearing).

Id. at 811-812. “Under Stone. . . the correctness of the state courts’ conclusions is simply

irrelevant.” Id. at 812. See also Jamison v. Knab, No. 3:09-cv-297, 2011 WL 587293, at *4–5

(S.D. Ohio Jan. 31, 2011) (rejecting argument that petitioner was denied a full and fair opportunity

to litigate his Fourth Amendment claim based on later discovery of evidence that police lied).

Similarly, in United States v. Lee Vang Lor, 706 F.3d 1252 (10th Cir. 2013), the Tenth

District Court of Appeals rejected the petitioner’s argument that he had been denied a full and fair

opportunity to litigate his Fourth Amendment claim, where the petitioner later learned that the

police officer initiating the traffic stop of his vehicle had been fired for calling in a false dispatch

report:

A defendant is not deprived of a full and fair opportunity to litigate simply because

he does not discover all potentially relevant evidence until after his suppression

hearing. Under Stone, habeas corpus relief is unavailable as long as the Government

afforded “an opportunity for full and fair litigation of a Fourth Amendment claim.”

Stone, 428 U.S. at 482, 96 S.Ct. 3037 (emphasis added). Absent ineffective

assistance of counsel or government concealment, a defendant cannot claim that

the mere existence of undiscovered material evidence deprived him of an

opportunity to litigate his claim. As the Court said in Stone, “[W]here the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim,

the Constitution does not require that a state prisoner be granted federal habeas

corpus relief on the ground that evidence obtained in an unconstitutional search or

seizure was introduced at his trial.” Stone, 428 U.S. at 482, 96 S.Ct. 3037.

Id. at 1259 (citing Brock v. United States, 573 F.3d 497, 501 (7th Cir. 2009) (holding that discovery

of a previously unavailable witness who may have invalidated search warrant did not deprive the

defendant of a full and fair opportunity to litigate the Fourth Amendment claim)).

Importantly, Petitioner does not allege, and the record does not reflect, any violation of

Brady v. Maryland, 373 U.S. 83 (1963). The record likewise does not indicate that Petitioner was

unable to present his Fourth Amendment claim to the state courts such that he again may obtain

review of this claim in these proceedings. As a result, Petitioner cannot satisfy AEDPA’s high

burden on claim one.

B. CLAIM TWO

In claim two, Petitioner asserts that he was denied due process because the state courts

denied his motion for a new trial based on the newly discovered evidence of police misconduct.

This claim likewise does not provide a basis for relief.

Procedural posture matters to this claim. This is so because “when a state defendant files

a motion for new trial before filing a direct appeal, and when the denial of that motion is then

consolidated with and reviewed during the direct appeal, the motion for new trial is a part of the

original criminal proceedings and is not a collateral proceeding.” Pudelski v. Wilson, 576 F.3d

595, 610 (6th Cir. 2009). But where the motion for a new trial is filed after the conclusion of direct

review, it is considered a part of the State’s collateral or post-conviction review process. See

Brown v. Warden, Lake Erie Corr. Inst., No. 1:11-cv-2765, 2014 WL 132367, at *17–18 n.12

(N.D. Ohio Jan. 14, 2014). That is what happened here. And, under these circumstances, habeas

corpus does not provide relief. See id. (quoting Farrow v. Anderson, 1:08-cv-1429, 2009 WL

3004024 (N.D. Ohio Sept. 15, 2009)) (“[E]rrors in post-conviction proceedings are outside the

scope of federal habeas corpus review.”). “‘[T]he writ [of habeas corpus] is not the proper means

by which prisoners should challenge errors or deficiencies in state post-conviction

proceedings … because the claims address collateral matters and not the underlying state

conviction giving rise to the prisoner’s incarceration.’” Cassano v. Bradshaw, No. 2018 WL

3455531, at *48 (N.D. Ohio July 18, 2018) (quoting Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir.

1986)) (following Preiser v. Rodriguez, 411 U.S. 475 (1973)).

The Sixth Circuit succinctly explained the issue in Cress v. Palmer:

A due process claim related to collateral post-conviction proceedings, even if

resolved in a petitioner’s favor, would not “result [in] ... release or a reduction in ...

time to be served or in any other way affect his detention because we would not be

reviewing any matter directly pertaining to his detention.” Kirby, 794 F.2d at 247.

“Though the ultimate goal in” a case alleging post-conviction error “is release from

confinement, the result of habeas review of the specific issue[ ] ... is not in any way

related to the confinement.” Id. at 248. Accordingly, we have held repeatedly that

“the scope of the writ [does not] reach this second tier of complaints about

deficiencies in state post-conviction proceedings,” noting that “the writ is not the

proper means” to challenge “collateral matters” as opposed to “the underlying state

conviction giving rise to the prisoner’s incarceration.” Id. at 248, 247; see also Alley

v. Bell, 307 F.3d 380, 387 (6th Cir. 2002) (“error committed during state post-

conviction proceedings can not [sic] provide a basis for federal habeas relief”

(citing Kirby, 794 F.2d at 247) ); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.

2001) (“habeas corpus cannot be used to mount challenges to a state’s scheme of

post-conviction relief”).

484 F.3d 844, 853 (6th Cir. 2007).

Applying that reasoning here, claim two does not provide a basis for relief.

V. DISPOSITION

For the reasons set forth above, it is RECOMMENDED that this action be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

IT IS SO ORDERED.

Date: December 13, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE