Rogers v. Warden, Belmont Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALLEN ROGERS, Case No. 1:20-cv-203

Petitioner,

Dlott, J.

vs. Bowman, M.J.

WARDEN, BELMONT REPORT AND

CORRECTIONAL INSTITUTION, RECOMMENDATION

Respondent.

Petitioner, an inmate in state custody at the Belmont Correctional Institution, has filed a

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before

the Court on the petition and respondent’s return of writ, to which petitioner has not replied.

(Doc. 1, 8). For the reasons stated below, the petition should be denied.

I. FACTUAL BACKGROUND

The Ohio Court of Appeals set forth the following set of facts leading to petitioner’s

conviction and sentence:1

{¶2} On July 15, 2016, the Cincinnati Police Department (“CPD”) filed a felony

complaint and issued an arrest warrant against Rogers for one count of felonious

assault. CPD attempted to serve the warrant on July 20, 2016, July 26, 2016, and

October 8, 2016. All three attempts were unsuccessful. Approximately 15 months

after the issuance of the arrest warrant, on November 3, 2017, Rogers was arrested

pursuant to an unrelated investigation.

{¶3} After his arrest, Rogers was indicted on one count of felonious assault.

Approximately 20 days later, Rogers asserted his right to a speedy trial and moved

to dismiss the indictment. The trial court denied Rogers’s motion and Rogers

entered a plea of no contest. . . .

1 28 U.S.C. § 2254(e)(1) provides that “[i]n 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 correct” unless petitioner rebuts the presumption by “clear and convincing evidence.” Because

petitioner has neither cited nor presented clear and convincing evidence to rebut the Ohio Court of Appeals’ factual

findings quoted herein, the state appellate court’s factual findings are presumed to be correct. See McAdoo v. Elo,

365 F.3d 487, 493-94 (6th Cir. 2004).

(Doc. 7, Ex. 17 at PageID 92).

II. PROCEDURAL BACKGROUND

State Trial Proceeding

On July 15, 2016, a complaint against plaintiff was filed in the Hamilton County

Municipal Court. (Doc. 7, Ex. 1). The complaint alleged that petitioner punched the victim in

the face multiple times during an argument causing serious injuries. A warrant was issued for

his arrest on the same day. (Doc. 7, Ex. 2).

On November 9, 2017, roughly fifteen months later, after petitioner was arrested on

another charge, the Hamilton County, Ohio grand jury returned an indictment charging petitioner

with one count of felonious assault. (Doc. 7, Ex. 3). Petitioner was served with a warrant on the

indictment on November 15, 2017. (Doc. 7, Ex. 4). Petitioner entered a not guilty plea. (Doc. 7,

Ex. 5).

Petitioner, through counsel, filed a motion to dismiss for lack of speedy trial. (Doc. 7,

Ex. 6). According to petitioner, the 15-month delay between the issuance of the July 15, 2016

warrant and his November 3, 2017 arrest violated his right to a speedy trial. Following a

hearing, the trial court denied the motion to dismiss. (Doc. 7-1, Trans. at PageID 292).

On February 27, 2018, petitioner voluntarily pleaded no contest to the one count of

felonious assault. (Doc. 7, Ex. 11). The trial court accepted his plea, found him guilty as

charged in the indictment, and sentenced him to a prison sentence of five years in the Ohio

Department of Corrections. (Doc. 7, Ex. 12, 13).

Direct Appeal

Petitioner, through new counsel, filed a notice of appeal to the Ohio Court of Appeals.

(Doc. 7, Ex. 14). Petitioner raised the following single assignment of error in his appellate brief:

“The trial court erred in denying the motion to dismiss.” (Doc. 7, Ex. 15). On April 5,

2019, the Ohio Appeals Court overruled petitioner’s assignment of error and affirmed the

judgment of the trial court. (Doc. 7, Ex. 17). Petitioner unsuccessfully sought

reconsideration of the decision. (Doc. 7, Ex. 18, 19).

Ohio Supreme Court

Petitioner filed a pro se notice of appeal and motion for leave to file a delayed appeal to

the Ohio Supreme Court. (Doc. 7, Ex. 20, 21). The Ohio Supreme Court granted petitioner’s

motion to file a delayed appeal. (Doc. 7, Ex. 22). In his memorandum in support of jurisdiction,

petitioner raised the following single proposition of law:

The trial court erred in overruling the defendant’s motion to dismiss his indictment

on constitutional speedy-trial grounds under the four-factor Barker analysis

because all four factors weighed in favor of the defendant: first, the 16 ½-month

delay between the defendant’s indictment and arrest is presumptively prejudicial;

second, the state failed to offer any evidence to explain the delay, and the state bears

the burden to explain the reason for the delay under the second Barker factor; third,

the defendant timely asserted his speedy-trial right by filing a motion to dismiss the

indictment twenty days after the return of the warrant; fourth, the defendant did not

have to show actual prejudice as a result of the state’s delay, because prejudice was

presumed under the first Barker factor, and the state offered no evidence to rebut

this presumption of prejudice. Failing to dismiss Mr. Roger’s indictment the court

erred and was in violation of the Fourteenth Amendment of the U.S. Constitution

and the Ohio Constitution Article 1, Section 10 Ohio Constitution.

(Doc. 7, Ex. 23). On December 31, 2019, the Ohio Supreme Court declined to accept

jurisdiction over the appeal. (Doc. 7, Ex. 24).

Federal Habeas Corpus

Petitioner initiated the instant federal habeas corpus action on March 10, 2019. (Doc. 1).

Petitioner raises the following single ground for relief in the petition:

GROUND ONE: The trial court erred in denying petitioner’s motion to dismiss,

the delay of 16 1/2 months between the issuance of the warrant and his arrest

violated the Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Section 10 of the Ohio Constitution.

Supporting Facts: The Petitioner’s conviction was obtained as a result of a

preindictment delay to make the resulting conviction a denial his right to a Speedy

Trial and due process. The petitioner case involves a mixed question of fact and

law in regards to pre-indictment delay and what renders a pre-indictment delay

prejudicial.

The petitioners case involves a delay in serving the warrant took 15-months to serve

the warrant (T.p. 152) The warrant was issued on June 15, 2016; Officer Glenn

testified the arrest actually took place in 16 ½ months (States Exhibit 1: T.p. 85,

89). The F.A.U. only made two attempts to serve the warrant, and considered it

“another warrant on the books” only 11 days after it was filed. (T.p. 73). On the

Third Attempt on October 16, 2016 Officer Etienne Merriweather attempted to

serve the warrant at 3:32 am and did not announce who she was. (T.p. 79). The

fourth attempt to serve the warrant, Officer Glenn only learned of the open warrant

against the petitioner by accident (T.p. 86). The officer then arrested him on the

open warrant and a new warrant (T.p. 92). This arrest was only done 16 ½ months

after the warrant was issued. It is undisputed the petitioner was never made aware

of the pending case against him and did not take steps to avoid service of the

warrant. (T.p. 109-110).

The appellate court in the petitioner’s case concedes that the 15-month delay was

presumptively prejudicial. See (majority opinion ¶8).

The court also concedes the state’s inaction largely caused the delay between the

filing of the complaint and Rogers’s arrest. During the first month after issuance

of the arrest warrant CPD’s efforts were reasonably diligent. However, when those

efforts were unsuccessful, the police did not continue to actively search for Rogers.

Sergeant Vogelpohl attributed this inaction to CPD’s prioritization of newer

warrants, stating “[ Rogers’s warrant] just became another warrant in our book.”

Such inaction must be weighed against the state “since the ultimate responsibility

for such circumstances must rest with the government rather than with the

defendant.” See (majority opinion ¶10)

The parties agree that Rogers asserted his constitutional right to a speedy trial

within a month after indictment. This factor weighs in favor of Rogers.

The court after conceding all the other factors of the applicable standard of proof

weighed in favor of the petitioner the court found in error the petitioner did not

show prejudice under the fourth factor. This is denies the petitioner his Sixth and

Fourteenth Amendment to the United States Constitution and Article I, Section 10

of the Ohio Constitution because the “prejudiced” is already presumed under the

first factor, and the state offered no evidenced to rebut this presumption of

prejudice. Therefore, the petitioner speedy trial rights have been violated and

denied due process.

(Doc. 1 at PageID 4-5).

Respondent has filed a return of writ in opposition to the petition, to which petitioner has

not replied. (Doc. 8).

III. THE PETITION SHOULD BE DENIED.

In this federal habeas case, the applicable standard of review governing the adjudication

of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d).

Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated

on the merits by the state courts unless the adjudication either:

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

application of, clearly established federal law, as determined by the United States

Supreme Court; 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).

“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at

a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state

court decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.

Taylor, 529 U.S. 362, 412–13 (2000)). “A state court’s adjudication only results in an

‘unreasonable application’ of clearly established federal law when ‘the state court identifies the

correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.’” Id. at 599–600 (quoting Williams, 529 U.S. at

413).

The statutory standard, established when the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.

As the Sixth Circuit explained in Otte:

Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s

standards. See, e.g., Cullen v. Pinholster, U.S. , 131 S.Ct. 1388, 1398, 179

L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record

before the state court where a claim has been adjudicated on the merits by the state

court). It is not enough for us to determine that the state court’s determination is

incorrect; to grant the writ under this clause, we must hold that the state court’s

determination is unreasonable. . . . This is a “substantially higher threshold.”. . .

To warrant AEDPA deference, a state court’s “decision on the merits” does not

have to give any explanation for its results, Harrington v. Richter, U.S. , 131

S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the relevant

Supreme Court cases, as long as “neither the reasoning nor the result of the state-

court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362,

154 L.Ed.2d 263 (2002) (per curiam).

Id. (emphasis in original). The Supreme Court extended its ruling in Harrington to hold that

when a state court rules against a defendant in an opinion that “addresses some issues but does

not expressly address the federal claim in question,” the federal habeas court must presume,

subject to rebuttal, that the federal claim was “adjudicated on the merits” and thus subject to the

“restrictive standard of review” set out in § 2254(d). See Johnson v. Williams, 568 U.S. 289, 292

(2013).

Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete

bar on federal court relitigation of claims already rejected in state proceedings” and “preserves

authority to issue the writ in cases where there is no possibility fairminded jurists could disagree

that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington v.

Richter, 562 U.S. 86, 102 (2011). In other words, to obtain federal habeas relief under that

provision, the state prisoner must show that the state court ruling on the claim presented “was so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id. at 103.

The Supreme Court has made it clear that in assessing the merits of a constitutional claim

under § 2254(d), the federal habeas court must apply the Supreme Court precedents that

controlled at the time of the last state-court adjudication on the merits, as opposed to when the

conviction became “final.” Greene v. Fisher, 565 U.S. 34, 38–40 (2011); cf. Otte, 654 F.3d at

600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim

addressed by the state courts, the federal habeas court must “look to Supreme Court cases

already decided at the time the state court made its decision”). In Greene, 565 U.S. at 38, the

Court explained:

[W]e held last term in Cullen v. Pinholster, 563 U.S. , 131 S.Ct. 1388, 179 L.Ed.2d

557 (2011), that review under § 2254(d)(1) is limited to the record that was before

the state court that adjudicated the prisoner’s claim on the merits. We said that the

provision’s “backward-looking language requires an examination of the state-court

decision at the time it was made.” Id., at , 131 S.Ct. at 1398. The reasoning of

Cullen determines the result here. As we explained, § 2254(d)(1) requires federal

courts to “focu[s] on what a state court knew and did,” and to measure state-court

decisions as of ‘the time the state court renders its decision.’” Id., at , 131 S.Ct.

at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .; emphasis added).

Decisions by lower courts are relevant “to the extent [they] already reviewed and

interpreted the relevant Supreme Court case law to determine whether a legal principle or right

had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v.

Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of

clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed

to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.”

McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).

In this case, petitioner argues that his conviction and sentence was the result of

preindictment delay. Specifically, petitioner contends that the delay between the July 15, 2016

warrant and his November 3, 2017 arrest violated his constitutional speedy trial and due process

rights. As noted above, petitioner raised his claim in a pre-trial motion to dismiss and on direct

appeal. Petitioner, through counsel, argued that the fifteen-month-delay violated his speedy trial

rights under Barker v. Wingo, 407 U.S. 514, 530 (1972). (See Doc. 7, Ex. 6, 15). In denying the

motion, the trial court determined that the fifteen-month delay was not a lengthy delay, the

state’s reason for the delay—difficulty locating petitioner—was justifiable, and that petitioner

failed to demonstrate actual prejudice stemming from the delay. (Doc. 7-1, Trans. at PageID

289–92). On further appeal, the Ohio Court of Appeals similarly found that petitioner failed to

demonstrate actual prejudice and affirmed the judgment of the trial court after weighing the

Barker factors.2 (Doc. 7, Ex. 17).

Upon review of the petition in this case, the undersigned finds that petitioner has failed to

2 As noted below, the Sixth Amendment’s Speedy Trial Clause and the Barker factors are inapplicable to pre-

indictment delay. The trial court relied on Ohio case law in determining that the speedy trial analysis was

applicable. (See Doc. 7-1, Trans. at PageID 274, 289-92). In State v. Meeker, 268 N.E.2d 589 (1971) the Ohio

Supreme Court held that “[t]he constitutional guarantees of a speedy trial are appliable to unjustifiable delays in

commencing prosecution, as well as to unjustifiable delays after indictment.” Following Meeker, the United States

Supreme Court held that the Sixth Amendment speedy trial right had no applicability to pre-indictment delays.

United States v. Marion, 404 U.S. 307 (1971). The Ohio Supreme Court subsequently limited the applicability of

Meeker in light of Marion, holding that “Meeker is viable only insofar as its application is limited to cases that are

factually similar to it.” State v. Luck, 472 N.E.2d 1097 (1984). In the instant case, based on Ohio case law in

Meeker, the trial court determined that the delay in petitioner’s trial was analogous to Meeker and applied the speedy

trial analysis. (See Doc. 7-1, Trans. at PageID 274).

On direct appeal, petitioner raised his assignment of error challenging the pre-indictment delay as a violation of the

Sixth Amendment and the Ohio Court of Appeals adjudicated the claim by weighing the Barker factors. (See Doc.

7, Ex. 15, 17). To the extent that petitioner may contend that he is entitled to federal habeas relief based on the Ohio

court’s application of Ohio case law his claim is without merit. A federal court may review a state prisoner’s habeas

petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United

States, and not “on the basis of a perceived error of state law.” 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37,

41 (1984). Furthermore, “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported

or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded

jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the

United States Supreme] Court.” Harrington, 562 U.S. at 102. For the reasons stated below, the Ohio courts’

decisions on petitioner’s pre-indictment delay claim was not contrary to or an unreasonable application of Supreme

Court precedent.

show that he is entitled to federal habeas relief.

The Speedy Trial Clause of the Sixth Amendment is not triggered until a formal

indictment or information is filed or “the actual restraints imposed by arrest and holding to

answer a criminal charge” have occurred. United States v. Lovasco, 431 U.S. 783, 788-89

(1977) (quoting United States v. Marion, 404 U.S. 307, 320 (1971)); see also Doggett v. United

States, 505 U.S. 647, 655 (1992). The filing of a criminal complaint does not, by itself,

implicate the Sixth Amendment’s speedy trial guarantee. See Marion, 404 U.S. at 320 (“[I]t is

readily understandable that it is either a formal indictment or information or else the actual

restraints imposed by arrest and holding to answer a criminal charge that engage the particular

protections of the speedy trial provision of the Sixth Amendment.”). In a case such as this,

involving a claim of constitutional error stemming from pre-indictment delay, only the

Fourteenth Amendment’s Due Process Clause may be invoked to provide protection “against

oppressive delay.” Lovasco, 431 U.S. at 789 (citing Marion, 404 U.S. at 324).

In Lovasco, the Supreme Court held that the Due Process Clause plays a limited role in

protecting criminal defendants who are actually prejudiced by excessive pre-indictment delay.

Lovasco, 431 U.S. at 789. Proof of prejudice is generally necessary, but is insufficient standing

alone to establish a due process violation; the due process inquiry also requires consideration of

the reasons for the delay. Id. at 790; see also Marion, 404 U.S. at 324 (the due process clause

“would require dismissal of the indictment if it were shown at trial that the pre-indictment delay.

. . caused substantial prejudice to [defendant’s] rights to a fair trial and that delay was an

intentional device to gain tactical advantage over the accused”).

The Sixth Circuit has consistently interpreted Lovasco as holding that a dismissal on due

process grounds for pre-indictment delay is warranted only when the defendant shows (1)

substantial prejudice to his right to a fair trial; and (2) that the delay was intentionally caused by

the government to gain a tactical advantage. See, e.g., United States v. Schaffer, 586 F.3d 414,

424 (6th Cir. 2009) (and Sixth Circuit cases cited therein); United States v. Wright, 343 F.3d 849,

859 (6th Cir. 2003); Burns v. Lafler, 328 F. Supp.2d 711, 719 (E.D. Mich. 2004) (citing United

States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992)). To establish a due process violation, the

defendant must show that the delay “caused him actual prejudice in presenting his defense.”

Schaffer, 586 F.3d at 425 (quoting United States v. Gouveia, 467 U.S. 180, 192 (1984) (emphasis

added)). Moreover, delay attributable to the legitimate investigation of a crime does not violate

due process even if such delay might have “somewhat prejudiced” the defense. See Lovasco,

431 U.S. at 796; see also Burns, 328 F.Supp.2d at 719.

In this case, petitioner’s speedy trial claim is without merit. As he argued in the state

courts, petitioner maintains that prejudice should be presumed in his case. However, “the

Supreme Court has repeatedly emphasized that, in order to establish a due process violation, the

defendant must show that the delay ‘caused him actual prejudice in presenting his defense.’”

Schaffer, 586 F.3d at 425 (rejecting the petitioner’s claim that prejudice should be presumed)

(quoting United States v. Gouveia, 467 U.S. 180, 192 (1984) (emphasis in original)). See also

Lovasco, 431 U.S. at 789 (“[P]roof of actual prejudice makes a due process claim concrete and

ripe for adjudication, not ... automatically valid.”). Petitioner has never advanced—either in the

instant petition or in the Ohio courts—any actual prejudice stemming from the pre-indictment

delay in his case. Moreover, because petitioner has also not demonstrated that the delay was

intentional or caused to obtain a tactical advantage, his pre-indictment delay claim is without

merit.3

3 Although the Ohio appeals court determined that the state was not reasonably diligent in pursuing petitioner after

the initial attempts to locate petitioner were unsuccessful, the court ultimately found, in conformance with the Sixth

After review of the record in this case, the undersigned finds that petitioner has failed to

demonstrate that the Ohio Court of Appeals’ adjudication of petitioner’s pre-indictment delay

claim was contrary to or an unreasonable application of Supreme Court precedent. As noted

above, petitioner has not demonstrated that he was actually prejudiced by the delay or

demonstrated that the delay was intentionally caused by the government to gain a tactical

advantage.

Accordingly, in sum, the undersigned concludes that petitioner is not entitled to habeas

relief. Having found that petitioner’s sole ground for relief is without merit the petition should

be DENIED with prejudice.

IT IS THEREFORE RECOMMENDED THAT:

1. The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED

with prejudice.

2. A certificate of appealability should not issue with respect to the claims alleged in the

petition, which have been addressed on the merits herein, because petitioner has not stated a

“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to

deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000)

(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed.

R. App. P. 22(b).

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,

the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting

Circuit’s application of due process principles, that the “mere negligence of the state is not enough to outweigh the

absence of some particularized trial prejudice.” (Doc. 7, Ex. 17 at PageID 97). See U.S. v. Lively, 852 F.3d 549,

567 (6th Cir. 2017) (refusing to adopt a standard for evaluating whether pre-indictment delay has prejudiced a

defendant requiring “actual and substantial prejudice accompanied by prosecutorial negligence.”); U.S. v. Banks, 27

F. App’x 354, 357 (6th Cir. 2001) (“Our Circuit has recognized where delay is due to simple negligence and not a

concerted effort by the government to gain an advantage, no due process violation exists.”).

this Report and Recommendation would not be taken in “good faith,” and, therefore, should DENY

petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALLEN ROGERS, Case No. 1:20-cv-203

Petitioner,

Dlott, J.

vs. Bowman, M.J.

WARDEN, BELMONT

CORRECTIONAL INSTITUTION,

Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

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