Brown v. Fender

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SPENCER BROWN, CASE NO. 4:22-CV-01284-DAR

Plaintiff, JUDGE DAVID A. RUIZ

vs. MAGISTRATE JUDGE DARRELL A. CLAY

WARDEN MICHAEL SWARTZ,1 REPORT AND RECOMMENDATION

Defendant.

Representing himself, Petitioner Spencer Brown petitioned on July 20, 2022 for a writ of

habeas corpus. (ECF #1). The District Court has jurisdiction under 28 U.S.C. § 2254(a). On

September 15, 2022, this matter was referred to me under Local Civil Rule 72.2 to prepare a

Report and Recommendation. (Non-document entry of Sept. 15, 2022). Respondent Douglas

Fender, as Warden of the Lake Erie Correctional Institution (hereinafter, the State), filed the

Return of Writ (including the state court record) on November 16, 2022. (ECF #8). Mr. Brown

filed a Traverse to Return of Writ on February 1, 2023. (ECF #9).

For the reasons below, I recommend the District Court DISMISS the petition. I further

recommend the District Court DENY a certificate of appealability.

1 While the petition was pending, Mr. Brown was transferred to the Toledo

Correctional Institution where Michael Swartz is the warden. Under Fed. R. Civ. P. 25, I

substitute Mr. Swartz as the Respondent.

PROCEDURAL HISTORY

A. Factual findings of the Court of Appeals

The Ohio Court of Appeals, Seventh Appellate District, set forth the facts of this case on

direct appeal. These factual findings are presumed correct unless Mr. Brown rebuts this

presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The Seventh District

determined:

{¶2} On November 8, 2018, officers from Youngstown Police Department (“YPD”)

were dispatched to 702 Pasadena in Youngstown, Mahoning County, Ohio, an

asserted high crime area. YPD detective division received an anonymous tip that

some individuals were at 702 Pasadena removing property from the residence.

Officers were dispatched in reference to a disturbance.

{¶3} Upon arrival, officers observed Appellant’s vehicle, a late model Oldsmobile,

parked half on the roadway and half on the devil strip in violation of Youngstown

Codified Ordinance 351.03. Appellant was seated in the driver’s seat. In the backseat

was a television. A door at 702 Pasadena appeared to have been kicked in, damaged,

contained a small hole, and was partially open. Appellant acknowledged there was a

small hole in the door but claimed it could not be seen through the screen door from

the street.

{¶4} Upon questioning, Appellant indicated he lived at 702 Pasadena. However,

Appellant could not produce any documentation verifying that location as his

address at that time. The officers then asked Appellant to step out of his vehicle and

they conducted a Terry pat-down. The officers discovered a semi-automatic handgun

in the pocket of Appellant’s hooded sweatshirt. Appellant was placed under arrest.

A search incident to arrest also revealed cocaine, heroin, and a digital electronic scale.

{¶5} On January 3, 2019, Appellant was indicted by the Mahoning County Grand

Jury on five counts: count one, possession of cocaine, a felony of the first degree, in

violation of R.C. 2925.11(A) and (C)(4)(e), with a forfeiture specification in violation

of R.C. 2941.1417; count two, having weapons while under disability, a felony of the

third degree, in violation of R.C. 2923.13(A)(2), (3), and (B); count three, possession

of heroin, a felony of the fourth degree, in violation of R.C. 2925.11(A) and

(C)(6)(b), with a forfeiture specification in violation of R.C. 2941.1417; count four,

improperly handling firearms in a motor vehicle, a felony of the fourth degree, in

violation of R.C. 2923.16(B); and count five, carrying concealed weapons, a felony

of the fourth degree, in violation of R.C. 2923.12(A)(2) and (F). Appellant retained

counsel and pleaded not guilty at his arraignment.

{¶6} On April 16, 2019, Appellant filed a motion to suppress. Appellant submitted

that the stop, detention, and search and seizure violated his constitutional rights.

Appellee, the State of Ohio, filed a response in opposition on May 3, 2019. The State

indicated that Appellant’s vehicle was illegally parked, and that the pat-down and

subsequent seizure of evidence did not violate the Fourth Amendment. A hearing

was held on July 3, 2019.

{¶7} Sergeant Nicholas Bailey with YPD testified for the State that he was a K-9

handler assigned to the Patrol Division on the date at issue, November 8, 2018.

Sergeant Bailey responded to a call in which two other officers were dispatched to

702 Pasadena, a “high crime area,” where the night before, three people were

murdered outside of that location. Officers were called because someone was

removing items from the residence.

{¶8} When Sergeant Bailey arrived in his marked cruiser, he observed an Oldsmobile

illegally parked half on the roadway and half on the devil strip in violation of

Youngstown Codified Ordinance 351.03. Sergeant Bailey activated his overhead

lights, advised radio dispatch, and parked behind the car. Sergeant Bailey approached

the vehicle. He observed Appellant sitting in the driver’s seat, a television in the

backseat, and a puppy in a cage on the passenger’s floorboard. Sergeant Bailey

observed that a door to the residence was kicked in and the home appeared to have

been burglarized. Appellant said he resided at the house but could not provide any

sort of proof of residency at that time.

{¶9} Officers Wallace and Martini with YPD arrived at the scene. Sergeant Bailey told

the officers that there was a television in Appellant’s backseat, that it looked like a

door to the residence was kicked in, and that this may be a burglary. Appellant was

asked to step out of his vehicle due to the possibility that he could be armed,

dangerous, and a burglar. Appellant stepped out of his vehicle and complied with a

pat-down of his person. It immediately became apparent to Sergeant Bailey that

Appellant had a semi-automatic handgun in the front pocket of his hooded

sweatshirt. Sergeant Bailey informed Officer Wallace in code that he felt a weapon

on Appellant. Sergeant Bailey recovered the firearm from Appellant’s pocket, cuffed

him from behind, and placed him under arrest.

{¶10} Sergeant Bailey and Officer Wallace then conducted a search incident to arrest.

They found a bag of cocaine and around $714 in Appellant’s front pants pocket.

Also recovered from Appellant was a bag that contained cocaine and heroin as well

as a digital electronic scale.

{¶11} Officer George Wallace, Jr. was called to testify for the defense. Officer Wallace

was on patrol duty on November 8, 2018. He was dispatched to 702 Pasadena in

reference to a possible burglary in progress. Upon his arrival, he observed Appellant’s

vehicle illegally parked halfway up on the devil strip in front of the residence. Officer

Wallace provided assistance to Sergeant Bailey, who was speaking with Appellant.

Officer Wallace observed a television in the backseat of Appellant’s vehicle.

Appellant said he lived at the residence and that some of his family members also

stayed there. After a minute or so, Officer Martini arrived. Officer Wallace said that

dispatch had sent a “Signal 8” for an investigation rather than a “Signal 1 or Signal

3” for a burglary. He said the door that appeared to be kicked in and damaged, was

also slightly open.

{¶12} On cross-examination, Officer Wallace testified that the pat-down search

revealed a firearm on Appellant. Cocaine and heroin were also discovered on

Appellant’s person. The prosecutor asked Officer Wallace, “So just because

something is an investigation doesn’t mean you can’t arrest somebody when you get

there?” Officer Wallace replied, “Yes; and, also, depending on how the call is given

out. I don’t really rely upon the call takers to give me the correct information or give

me the right signals for the calls.”

{¶13} On re-direct examination, Officer Wallace said he did not know how long the

door to the residence had been damaged.

{¶14} Appellant testified that on November 8, 2018, he had been living at 702

Pasadena for about one month. Appellant’s brother and his friend also lived there.

Appellant stated there was a hole in a door but said that it was not visible from the

street. Appellant indicated both the door and screen door were closed and locked.

Appellant acknowledged that he was parked on the devil strip when the officers

arrived. Appellant said he was sitting in his car FaceTiming his mother with his cell

phone and keys in his hands. Appellant gave Sergeant Bailey his ID and told him he

lived at the residence.

{¶15} On cross-examination, Appellant stated there was a television in his backseat

and a hole in a door to the residence. Appellant said he did not walk around with

Sergeant Bailey and did not know what the officer actually saw.

{¶16} On August 28, 2019, the trial court denied Appellant’s motion to suppress.

Specifically, the court referenced and considered the stop and the traffic violation;

determined that the officers had a reasonable suspicion of criminal activity (burglary)

supported by articulable facts to detain Appellant for limited questioning; to ask

Appellant to step out of the vehicle; and to pat him down for officers’ safety.

{¶17} On November 4, 2019, Appellant withdrew his former not guilty plea and

entered a plea of no contest to the charges as contained in the indictment. The trial

court accepted Appellant’s no contest plea after finding it was made in a knowing,

voluntary, and intelligent manner pursuant to Crim.R. 11. The court sentenced

Appellant to a total term of seven years in prison . . . .

(ECF #6-1 at PageID 167-71 (citations omitted); see also State v. Brown, No. 19 MA 0136, 2021 WL

3701737 (Ohio Ct. App. Aug. 12, 2021)).

B. Trial court proceedings

On January 3, 2019, a Mahoning County grand jury indicted Mr. Brown as follows:

 Count One: Possession of cocaine, in violation of Ohio Revised Code

§ 2925.11(A);

 Count Two: Having weapons under disability, in violation of Revised Code

§ 2923.13(A);

 Count Three: Possession of heroin, in violation of Revised Code

§ 2925.11(A);

 Count Four: Improperly handling a firearm in a motor vehicle, in violation

of Revised Code § 2923.16(B); and

 Count Five: Carrying concealed weapons, in violation of Revised Code

§ 2923.12(A).

(ECF #6-1 at PageID 62-64).

On April 16, 2019, Mr. Brown moved to suppress evidence found on his person and seized

from his vehicle, alleging a Fourth Amendment violation. (Id. at PageID 68-69). After an

evidentiary hearing, the trial court denied the motion after finding the officers “had reasonable

suspicion of criminal activity supported by articulable facts to detain the Defendant and for

limited questioning, to ask the Defendant to step out of the vehicle and to pat him down for

officer safety.” (Id. at PageID 90-93).

On November 4, 2019, Mr. Brown withdrew his former not-guilty plea and pleaded no

contest to the charges in the indictment. (Id. at PageID 94-100). The trial court sentenced Mr.

Brown to seven years’ imprisonment. (Id. at PageID 102-04).

C. Direct appeal

On December 3, 2019, through new counsel, Mr. Brown appealed to the Seventh District.

(ECF #6-1 at PageID 106). In his appellate brief, Mr. Brown alleged the trial court erred in denying

his motion to suppress because the officers did not have reasonable and articulable suspicion that

he was engaged, or about to be engaged, in criminal activity. (Id. at PageID 108-45). In response,

the State argued that competent and credible evidence supported denying the motion to suppress.

(Id. at PageID 147-64). On August 12, 2021, the Seventh District affirmed the trial court’s

judgment denying the motion to suppress. (Id. at PageID 166-77; see also Brown, 2021 WL

3701737).

Mr. Brown moved for leave to file a delayed appeal to the Supreme Court of Ohio. (Id. at

PageID 179-88). That court granted Mr. Brown’s motion and directed him to file a memorandum

in support of jurisdiction. (Id. at PageID 202). In his memorandum, Mr. Brown argued the police

officers violated his Fourth Amendment rights when they conducted a traffic stop, detention,

search, and seizure without having a reasonable, articulable suspicion that he was engaged in

criminal activity to justify those actions. (Id. at PageID 204-19). On April 12, 2022, the Supreme

Court of Ohio declined jurisdiction of the appeal. (Id. at PageID 235).

FEDERAL HABEAS PETITION

On July 20, 2022, representing himself, Mr. Brown filed his petition in this Court alleging

“The Fourth Amendment to the United States Constitution in Conjunction with Article 1,

Section 14 prohibits the unlawful search and seizure of evidence based on an alleged traffic

violation that never occurred to justify a Terry-Stop-Pat-down.” (ECF #1-1 at PageID 17) (cleaned

up). On November 14, 2022, before the State filed an Answer, Mr. Brown filed an amended

petition that revised the wording, but not the substance, of his sole ground for relief, stating as

follows:

The adjudication on the merits in the State court proceeding 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, involving

Petitioner’s claim that the trial court erred in denying his motion to suppress as the

police officers failed to have a reasonable and articulable suspicion that petitioner

was engaged or about to be engaged in criminal activity in violation of the Fourth

and Fourteenth Amendments.

(ECF #5 at PageID 41). Mr. Brown set forth the supporting facts as follows:

Appellant argued in his direct appeal before the Seventh District Court of Appeals

that the trial court erred in denying his motion to suppress. Specifically, Appellant

alleges that the Officers’ observations of a hole in a door to the residence coupled

with the presence of a television in the backseat of his vehicle did not constitute a

reasonable, articulable suspicion that he was engaged in, or about to be engaged in,

criminal activity justifying the stop and search.

The Seventh District Court of Appeals affirmed the trial court’s judgment denying

appellant’s motion to suppress on alleged facts presented, that the officers, after

receiving an anonymous tip and during a lawful traffic stop, formulated a reasonable,

articulable suspicion of burglary after observing a television in the backseat of

Appellant’s vehicle; after determining that Appellant could not produce any proof at

the time of the stop that he lived at 702 Pasadena; and after observing a door to the

residence that contained a hole, was kicked in and damaged, and was slightly open.

The Seventh District Court of Appeals further held that officers properly asked

Appellant to step out of his vehicle due to the possibility that he could be armed,

dangerous, and a burglar. In addition, competent, credible evidence exists to show

that the officers had a reasonable articulable suspicion to perform a Terry pat-down

search of Appellant. Based on the totality of the circumstances, the trial court did

not err in denying Appellant’s motion to suppress.

Appellant contends that the issue of a traffic stop was never an issue that was

conducted by (YPD) Youngstown Police Department to justify the traffic stop,

detention, and search and seizure of evidence. In fact, this was the main point raised

in the oral argument hearing before the court of appeals. That issue later came up as

a defense by the State during the suppression hearing in relation to Appellant’s

motion to suppress.

Appellant contends that [YPD] never cited him for an alleged illegal parking violation

when they arrived at his residence. They were never there for that. They were there

investigating an [anonymous] tip of a break in that was later verified to be appellant’s

residence.

Appellant submits that the stop, detention, and search and seizure violated his

constitutional rights. The issue of whether Appellant’s vehicle was illegally parked

was never the issue that led to the stop, detention, and search and seizure of his

persons/vehicle and subsequent seizure of evidence did violate the Fourth

Amendment to the United States Constitution.

Here in this instant case, there was never a traffic violation that occurred as argued

before the Court of Appeals in oral arguments. In fact, appellant was never cited or

given a ticket for illegally parking. That evidence does not exist because the alleged

traffic stops never occurred, only as a defense to the State through the suppression

hearing in order to justify the illegal search and seizure of evidence against appellant.

In addition, there was never a reasonable articulable suspicion that criminal activity

had occurred, as it was confirmed on cross-examination by Sergeant Bailey whom

later indicated that Appellant’s mother and landlord subsequently confirmed that

702 Pasadena was Appellant’s residence. Never establishing that a crime has occurred

“burglary” violating appellant’s Fourth Amendment protections against illegal search

and seizure that warranted the evidence taken from appellant to be suppressed.

(ECF #1-1 at PageID 17-19).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Mr. Brown’s

petition for writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA recognizes

that “[s]tate courts are adequate forums for the vindication of federal rights” and therefore acts as a

“formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in

state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). It “dictates a highly deferential standard for

evaluating state-court rulings which demands that state-court decisions be given the benefit of the

doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citation and quotation omitted). Accordingly, an

application for habeas corpus cannot be granted for a person in custody pursuant to a state

conviction unless the adjudication “(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 upon an unreasonable

determination of the facts in light of the evidence presented in the State court proceedings.”

28 U.S.C. § 2254(d).

DISCUSSION

In his sole ground for relief, Mr. Brown disputes the correctness of the trial court’s

decision on the Fourth Amendment claim. He asserts the anonymous tip relating to a possible

burglary and the police officers’ observation of a hole in the door of the residence coupled with

the presence of a television in his vehicle did not constitute a reasonable articulable suspicion that

he was engaged in, or about to be engaged in, criminal activity; thus, the state courts erred in

failing to conclude that the evidence must be suppressed in light of the violation of his Fourth

Amendment right to be free from unreasonable searches and seizures. (ECF #8 at PageID 386). In

response, the State contends the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 (1976),

precludes federal habeas review of a petitioner’s claim stemming from the denial of his motion to

suppress and from the state courts’ adjudication of the Fourth Amendment issues raised in that

motion. (ECF #6 at PageID 53-56).

Federal habeas corpus review of a petitioner’s Fourth Amendment claim is generally

prohibited when the petitioner received “the opportunity for full and fair consideration” of that

claim in state court. Stone, 428 U.S. at 481-82. In the Sixth Circuit, a “full and fair opportunity” to

litigate the claim “means an available avenue for the prisoner to present his claim to the state

courts, not an inquiry into the adequacy of the procedure actually used to resolve that particular

claim.” Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013). Thus, absent 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 procedures for resolving the claims.” Id.

To determine whether a petitioner was afforded a full and fair opportunity to litigate a

Fourth Amendment claim in the state courts, a federal district court conducts two distinct

inquiries: (1) “whether the state procedural mechanism, in the abstract, presents the opportunity

to raise such a claim,” and (2) “whether presentation of the claim was in fact frustrated because of

a failure of that mechanism.” Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982) (citations omitted).

In making these two inquiries, the correctness of the state court’s decision on the Fourth

Amendment issue is irrelevant. Id; see also Good, 729 F.3d at 640.

Turning to the first inquiry, the mechanism for resolution of Fourth Amendment claims in

Ohio “is, in the abstract, clearly adequate,” providing a defendant the opportunity to file a pretrial

motion to suppress and the opportunity to take a direct appeal from the denial of the motion to

suppress. Riley, 674 F.2d at 526. Under the second inquiry, there is no indication the state failed

to provide Mr. Brown the adequate mechanism to address his Fourth Amendment claims. Mr.

Brown presented his motion to suppress in the trial court and the court denied it after hearing

testimony and taking evidence. (ECF #6-1 at PageID 90). Mr. Brown then presented the claim to

the state appellate court, which rejected the claim after thorough review. (ECF #6-1 at PageID 166-

76; see also Brown, 2021 WL 3701737 (Ohio Ct. App. Aug. 12, 2021)). Mr. Brown has established

no failure of Ohio’s procedural mechanism that frustrated presentation of his Fourth Amendment

claim in the Ohio courts. Because Mr. Brown received a full and fair opportunity to litigate his

Fourth Amendment claim, review of that claim through a habeas corpus petition is precluded

under Stone v. Powell. See Good, 729 F.3d at 640; see also Loza v. Mitchell, 705 F.Supp.2d 773, 860

(S.D. Ohio Mar. 31, 2010) (holding that defendant received a full and fair opportunity to litigate

his Fourth Amendment claim where the trial court heard and denied his motion to suppress and

the defendant subsequently raised the same Fourth Amendment claim on direct appeal); Johnson v.

Eppinger, No. 1:19 CV 984, 2020 WL 8771326, at *14 (N.D. Ohio June 1, 2020) (same), report and

recommendation adopted, 2021 WL 861509 (N.D. Ohio Mar. 8, 2021); Long v. Watson, No. 3:22-cv-

503, 2022 WL 15522935, at *1 (N.D. Ohio Oct. 27, 2022) (same).

In his Traverse, Mr. Brown seeks to circumvent the bar against federal collateral review

under Stone by seizing on the Supreme Court’s statement that “a state prisoner may not be granted

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

seizure was introduced at his trial.” (ECF #8 at PageID 379). He claims he is not challenging

evidence introduced at trial because he entered a no contest plea and thus, his claim should be

reviewed on the merits. (Id.). Mr. Brown does not identify case law supporting his position that a

no-contest plea in the state trial court allows a petitioner to side-step the bar to a merits review of

the Fourth Amendment claim. Case law within the Sixth Circuit indicates that Stone applies to the

federal court’s review of Fourth Amendment claims even when the petitioner pled no contest. See

Harding v. Russell, 156 F.App’x 740 (6th Cir. 2005); Scott v. Sheldon, No. 19-3164, 2019 WL

4187702 (6th Cir. 2019); Johnson v. Turner, No, 1:13CV01173, 2015 WL 3967673 (N.D. Ohio

June 30, 2015); Coleman v. Richard, No. 15-cv-1962, 2018 WL 400322 (N.D. Ohio Jan. 11, 2018);

Hays v. Bracy, No. 5:22-CV-01103-JPC, 2024 WL 643166 (N.D. Ohio Jan. 26, 2024), report and

recommendation adopted, 2024 WL 639618 (N.D. Ohio Feb. 15, 2024).

Next, Mr. Brown asserts that his claim—that the police officers did not have reasonable

articulable suspicion that he was engaged in, or about to be engaged in, criminal activity—is

“quantitatively and qualitatively different” from the issues in Stone, and therefore must be

adjudicated on the merits. (ECF #8 at PageID 379). Not so. The Fourth Amendment’s prohibition

on unreasonable seizures allows temporary detentions, known as Terry stops, if there is “a

reasonable suspicion supported by articulable facts that criminal activity may be afoot.” United

States v. Sokolow, 490 U.S. 1, 7 (1989); see also Terry v. Ohio, 392 U.S. 1, 30 (1968). Stone acts to

preclude litigation of all Fourth Amendment claims raised on federal habeas review, including the

correctness of the state court’s decision on the reasonableness of an investigative stop, if the

petitioner had a full and fair opportunity to litigate the claim in state court. Stone, 428 U.S. at 494-

95. Described above, Ohio’s procedural mechanism to adjudicate Fourth Amendment claims is

adequate and there is no indication the state failed to provide Mr. Brown the mechanism to

address his Fourth Amendment claim. Thus, his claim is not cognizable on federal habeas review.

Therefore, I recommend the District Court DISMISS Mr. Brown’s petition.

CERTIFICATE OF APPEALABILITY

A habeas petitioner may not appeal the denial of an application for a writ of habeas corpus

unless a judge issues a certificate of appealability (COA) and specifies the issues that can be raised

on appeal. 28 U.S.C. § 2253(c). “A [COA] may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a

district court has determined a petitioner’s constitutional claim to lack merit, the petitioner “must

demonstrate that reasonable jurists would find the district court’s assessment of the constitutional

claim debatable or wrong” before receiving a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When the district court denies a habeas petition on procedural grounds without reaching the

petitioner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least,

that jurists of reason would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling. Id. A showing that the appeal would succeed on the

claim is not required to grant a COA. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

Mr. Brown has not made a substantial showing that he was denied any constitutional right,

and jurists of reason would not find it debatable whether he was given a full and fair opportunity

to litigate his Fourth Amendment claim. Therefore, I recommend the District Court DENY Mr.

Brown a COA.

CONCLUSION AND RECOMMENDATION

For these reasons, I recommend the District Court DISMISS the petition and DENY a

certificate of appealability.

Dated: December 17, 2024

} } }

DARRELL A. CLAY

UNITED STATES MAGISTRATE JUDGE

Objections, Review, and Appeal

Within 14 days after being served with a copy of this Report and

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

proposed findings and recommendations of the Magistrate Judge. See Fed. R. Civ.

P. 72(b)(2); see also 28 U.S.C. § 636(b)(1); Local Civ. R. 72.3(b). Properly asserted

objections shall be reviewed de novo by the assigned district judge.

Failure to file objections within the specified time may result in the forfeiture or

waiver of the right to raise the issue on appeal, either to the district judge or in a

subsequent appeal to the United States Court of Appeals, depending on how or

whether the party responds to the Report and Recommendation. Berkshire v.

Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific and not

merely indicate a general objection to the entirety of the Report and

13

Recommendation; “a general objection has the same effect as would a failure to

object.” , 932 F.2d 505, 509 (6th Cir.

1991). Objections should focus on specific concerns and not merely restate the

arguments in briefs submitted to the Magistrate Judge. “A reexamination of the

exact same argument that was presented to the Magistrate Judge without specific

objections ‘wastes judicial resources rather than saving them and runs contrary to

the purpose of the Magistrates Act.’” , No. 1:17-CV-00186, 2018

WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting , 932 F.2d at 509).

The failure to assert specific objections may in rare cases be excused in the interest

of justice. , 924 F.3d 868, 878-79 (6th Cir. 2019).