Searles v. Baldauf

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CAROLYN S. SEARLES, ) Case No. 3:23-CV-02394-CEF

)

Petitioner, ) JUDGE CHARLES ESQUE FLEMING

UNITED STATE DISTRICT JUDGE

)

v. )

MAGISTRATE JUDGE

)

JENNIFER DOWDELL

WARDEN TERI BALDAUF, )

ARMSTRONG

)

Respondent.

)

) REPORT & RECOMMENDATION

)

I. INTRODUCTION

Petitioner, Carolyn S. Searles (“Ms. Searles”), seeks a writ of habeas corpus under 28

U.S.C. § 2254. (ECF No. 1). Ms. Searles is serving a sentence of nine years in prison after

pleading guilty to two counts of tampering with records, one count of complicity in the

commission of an offense, and one count of engaging in a pattern of corrupt activity.

Ms. Searles asserts eight grounds for relief. Respondent, Warden Teri Baldauf

(“Warden”), filed an answer/return of writ on April 12, 2024. (ECF No. 8). Ms. Searles filed

a response to the Warden’s return of writ on May 17, 2024. (ECF No. 9). This matter was

referred to me on February 1, 2024 under Local Rule 72.2 to prepare a report and

recommendation on Ms. Searles’ petition. (See ECF non-document entry dated February 1,

2024). For the reasons set forth below, I recommend that Ms. Searles’ petition be

DISMISSED and/or DENIED. I further recommend that this Court not grant Ms. Searles a

certificate of appealability.

II. RELEVANT FACTUAL BACKGROUND

For purposes of habeas corpus review of state court decisions, a state court's findings

of fact are presumed correct and can be contravened only if the habeas petitioner shows, by

clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.

§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d

524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by

a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio

Court of Appeals for the Third Appellate District summarized the facts as follows:

{¶2} On April 4, 2019, the Van Wert County Grand Jury indicted Searles on eight

counts of tampering with records in violation of R.C. 2913.42(A)(2) and (B), felonies

of the third degree; one count of complicity in the commission of an offense in

violation of R.C. 2923.03(A)(2) and (F), a felony of the third degree; one count of

obstructing justice in violation of R.C. 2921.32(A)(5) and (C)(3), a felony of the fifth

degree; and one count of engaging in a pattern of corrupt activity in violation of R.C.

2923(A)(3) and (B)(1), a felony of the first degree. Doc. 2. These offenses all arose

out of Searles' husband and Searles using her nephew's identity for various purposes

for more than a decade. . . .

(ECF No. 8-1, Exhibit 11); State v. Searles, No. 15-19-05, 2020 WL 1244805, 2020-

Ohio-973 (3rd Dist. Mar. 16, 2020).

III. PROCEDURAL HISTORY

A. State Court Conviction

On April 4, 2019, Ms. Searles was indicted in the Van Wert County Court of Common

Pleas on the following offenses: (1) eight third-degree felony counts of tampering with

records in violation of O.R.C. §§ 2913.42(A)(2) and (B)(4); (2) one third-degree felony count

of complicity in the commission of an offense in violation of O.R.C. §§ 2923.03(A)(2) and

(F); (3) one fifth-degree felony count of obstructing justice in violation of O.R.C. §§

2921.32(A)(5) and (C)(3); and (4) one first-degree felony count of engaging in a pattern of

corrupt activity in violation of O.R.C. §§ 2923.32(A)(3) and (B)(1). (ECF No. 8-1, Exhibit

1). On April 10, 2019, Ms. Searles pled not guilty to all charges. (ECF No. 8-1, Exhibit 2).

On June 4, 2019, Ms. Searles withdrew her plea of not guilty and pled guilty to two

counts of tampering with records (Counts One and Five), one count of complicity in the

commission of an offense (Count Nine), and one count of engaging in a pattern of corrupt

activity (Count Eleven). (ECF No. 8-1, Exhibit 3). Ms. Searles also agreed to the forfeiture

of her house. Id. In return, the State agreed to dismiss the remaining counts. Id. On July 12,

2019, the trial court sentenced Ms. Searles to an aggregate term of nine years in prison. (ECF

No. 8-1, Exhibit 5). On July 16, 2019, the trial court entered a nunc pro tunc sentencing entry,

which did not alter Ms. Searles’ aggregate prison sentence. (ECF No. 8-1, Exhibit 7).

B. Direct Appeal

On August 12, 2019, Ms. Searles, through new appellate counsel, timely filed a notice

of appeal to the Third Appellate District. (ECF No. 8-1, Exhibit 8). On December 9, 2019,

Ms. Searles filed her appellate brief, raising the following assignment of error:

1. The Trial Court Committed Prejudicial Error By Imposing a Sentence That is

Contrary To Law.

(ECF 8-1, Exhibit 9).

On March 16, 2020, the Third Appellate District affirmed the trial court’s judgment.

(ECF No. 8-1, Exhibit 11). Ms. Searles did not appeal the Third Appellate District’s decision

to the Ohio Supreme Court at that time.

C. Motion to Withdraw Guilty Plea and Petition for Post-Conviction Relief

On August 12, 2020, Ms. Searles, acting pro se, filed a petition in the trial court to

withdraw her guilty plea pursuant to Ohio Criminal Rule 32.1, arguing that she received the

ineffective assistance of trial counsel in connection with her plea. (ECF No. 8-1, Exhibit 15).1

On the same day, Ms. Searles, again acting pro se, filed a petition in the trial court to vacate

or set aside her conviction pursuant to O.R.C. § 2953.21, again arguing that she received the

ineffective assistance of trial counsel. (ECF No. 8-1, Exhibit 16). The trial court appointed

counsel, who filed a supplemental memorandum in support of both the motion to withdraw

Ms. Searles’ guilty plea and the petition to vacate. (ECF No. 8-1, Exhibit 18). In the

supplemental memorandum, Ms. Searles’ appointed counsel focused on the argument that the

indictment was defective with respect to the pattern of corrupt activity count because it

alleged that Ms. Searles used the proceeds from corrupt activity to purchase real property in

2009 but did not allege any specific predicate acts of identity theft occurring before 2012.

On March 8, 2021, the trial court dismissed Ms. Searles’ motion and petition. (ECF

No. 8-1, Exhibit 20). The court held that it was lacked jurisdiction over Ms. Searles’ motion

to withdraw her guilty plea because the Third Appellate District had already affirmed her

sentence on appeal. The court also held that Ms. Searles’ petition to vacate or set aside her

conviction was barred by the doctrine of res judicata because she could have raised the

ineffectiveness of her counsel on direct appeal. The court further held that Ms. Searles’ claims

would fail even without the application of res judicata.

On September 20, 2021, Ms. Searles, acting pro se, filed a motion for leave to file a

delayed appeal in the Third Appellate District. (ECF No. 8-1, Exhibit 21). On September 29,

2021, the Third Appellate District denied Ms. Searles’ motion, holding it was not properly

filed and that a delayed appeal was not an available remedy. (ECF No. 8-1, Exhibit 22).

1 On May 18, 2020, Ms. Searles, acting pro se, filed a motion in the trial court for judicial release pursuant to

O.R.C. § 2929.20(B) in light of the COVID-19 pandemic. (ECF No. 8-1, Exhibit 13). On May 20, 2020, the

trial court denied the motion. (ECF No. 8-1, Exhibit 14).

D. Rule 26(B) Application to Reopen Appeal

On March 10, 2022, Ms. Searles, acting pro se, filed a delayed application in the Third

Appellate District to reopen her appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 8-

1, Exhibit 23). In her application, Ms. Searles argued that she was denied the effective

assistance of appellate counsel during her direct appeal because her counsel: (1) erroneously

advised her that she could not raise an ineffective assistance of counsel claim until she filed

a post-conviction petition; (2) failed to argue that her plea was not knowing and voluntary;

(3) failed to argue that the police conducted an unlawful search and seizure; (4) failed to argue

that her trial counsel misinformed the trial court regarding whether the victim was

developmentally disabled; (5) failed to raise her trial counsel’s failure to obtain a

psychological evaluation of Ms. Searles; (6) failed to argue that trial counsel was ineffective

in not challenging alleged errors in the presentence report; (7) failed to argue that trial counsel

was ineffective in not challenging the adequacy of the indictment with respect to the pattern

of corrupt activity charge; and (8) did not argue that trial counsel was ineffective in failing to

obtain relevant documents and records. Id. Ms. Searles asserted that her application was

untimely as a result of of the COVID-19 pandemic and because she erroneously believed she

could pursue her ineffective assistance of trial counsel arguments through her post-conviction

petition. On April 13, 2022, Ms. Searles filed a supplemental memorandum in support of her

petition. (ECF No. 8-1, Exhibit 24).

On May 6, 2022, the Third Appellate District denied Ms. Searles’ application to

reopen, holding that it was untimely and that Ms. Searles had not shown good cause for filing

it after the due date. (ECF No. 8-1, Exhibit 26). Ms. Searles filed a motion for reconsideration,

which the court denied on July 5, 2022. (ECF No. 8-1, Exhibits 28-29).

E. Motion for Leave to File Delayed Appeal to Ohio Supreme Court

On September 6, 2022, Ms. Searles, acting pro se, filed a notice of appeal to the Ohio

Supreme Court from the Third Appellate District’s March 16, 2020 decision affirming the

trial court’s judgment on direct appeal. (ECF No. 8-1, Exhibit 30). Ms. Searles also filed a

motion for leave to file a delayed appeal in light of the COVID-19 pandemic, which the Ohio

Supreme Court granted on September 19, 2022. (ECF No. 9-1, Exhibits 31-32). On September

27, 2022, Ms. Searles filed her memorandum in support of jurisdiction, raising the following

propositions of law:

1. The Sixth Amendment guarantees an accused will have the effective assistance

of counsel. The Sixth Amendment recognizes this right as it envisions defense

counsel playing a role that is critical to the ability of the adversarial system to

produce just results.

2. The Fourth Amendment guarantees the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and NO Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

(ECF No. 8-1, Exhibit 33). On December 27, 2022, the Ohio Supreme Court declined

to accept jurisdiction over the appeal. (ECF No. 8-1, Exhibit 35).

F. Federal Habeas Action

On or about December 11, 2023, Ms. Searles, acting pro se, filed her 28 U.S.C. § 2254

habeas petition. (ECF No. 1).2 Ms. Searles’ habeas petition raises the following grounds for

relief:3

2 A pro se petitioner’s petition is deemed filed on the date in which the petitioner presents the petition to prison

officials for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). While Ms. Searles signed her petition on

December 11, 2023, the petition does not indicate the date on which she presented it to prison officials for

mailing. (ECF No. 1, PageID # 23). Because the Warden does not argue that Ms. Searles’ petition is untimely,

the precise date on which she filed it is not relevant to the issues before the Court.

3 Ms. Searles’ grounds for relief are reproduced verbatim.

1. The Sixth Amendment guarantees an accused will have Effective Assistance of

counsel. Appellant Counsel did not raise the claim that the plea was “unknowing

and involuntary.”

2. Appellant counsel was ineffective when he erred in his advising Appellant that

she could only raise ineffective assistance of counsel at Post Conviction, when

he should have known it would then be barred.

3. Appellate Counsel was ineffective for not presenting the claim that there was a

probability of Illegal Search & Seizure.

4. Appellate Counsel was ineffective for not raising the claim that Trial Counsel

was ineffective when he MISREPRESENTED IN COURT on record the mental

condition of the victim.

5. Appellate Counsel was ineffective for not raising the claim that Trial Counsel

was ineffective for not having the Appellant evaluated by psychologists or

Mental Health Professionals.

6. Appellate Counsel was ineffective for not raising the claim that Trial Counsel

was ineffective for not defending the errors in the PSI investigation.

7. Appellate Counsel was ineffective for not presenting the claim that Trial Counsel

was ineffective for not defending the dates alleged for the Pattern of Corrupt

Activity charge 2923.32(A)(3).

8. Appellate Counsel was ineffective for not presenting that Trial Counsel was

ineffective for not obtaining any necessary documents or records from the Van

Wert Court House (Auditor’s Office) or to subpoena any documents needed

from the Appellant’s insurance companies as needed to provide a defense for the

Appellant as any competent and effective counsel would have done.

Id.

The Warden filed an answer/return of writ on April 12, 2024. (ECF No. 8). Ms. Searles

filed a response on May 17, 2024. (ECF No. 9).

IV. STANDARDS OF REVIEW AND GOVERNING LAW

A. Jurisdiction

28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of

habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the Constitution or laws or treaties of

the United States.” A state prisoner may file a § 2254 petition in the “district court for the

district wherein such person is in custody or in the district court for the district within which

the State court was held which convicted and sentenced him[.]” 28 U.S.C. § 2241(d). The

Van Wert County Court of Common Pleas sentenced Ms. Searles, and the Court takes judicial

notice that Van Wert County is within this Court’s geographic jurisdiction. Accordingly, this

Court has jurisdiction over Ms. Searles’ § 2254 petition.

B. Exhaustion and Procedural Default

Under AEDPA, state prisoners must exhaust all possible state remedies, or have no

remaining state remedies, before a federal court can review a petition for a writ of habeas

corpus on the merits. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509

(1982). This entails giving the state courts “one full opportunity to resolve any constitutional

issues by invoking one complete round of the State's established appellate review process.”

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In other words, “the highest court in the

state in which the petitioner was convicted [must have] been given a full and fair opportunity

to rule on the petitioner's claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).

The exhaustion requirement, however, “refers only to remedies still available at the time of

the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). It “does not require

pursuit of a state remedy where such a pursuit is clearly futile.” Wiley v. Sowders, 647 F.2d

642, 647 (6th Cir. 1981).

Procedural default is a related but “distinct” concept from exhaustion. Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain

consideration of a federal constitutional claim by state courts because he failed to: (1) comply

with a state procedural rule that prevented the state courts from reaching the merits of the

petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies

were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle,

456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining whether there has been a

procedural default, the federal court looks to the last explained state-court judgment. Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).

A claim is fairly presented when it has been asserted as a federal constitutional issue at every

state of the state court review process. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d

281, 285 (6th Cir. 2010); Williams, 460 F.3d at 806.

Procedural default, however, can be excused and will not preclude consideration of a

claim on federal habeas review if the petitioner can demonstrate: (1) “cause for the default

and actual prejudice as a result of the alleged violation of federal law;” or (2) “failure to

consider the claim will result in a fundamental miscarriage of justice.” Coleman v. Thompson,

501 U.S. 722, 750 (1991). A “fundamental miscarriage of justice” can occur only when the

procedurally defaulted claim – supported by new reliable evidence not presented at trial –

would establish that the petitioner was “actually innocent” of the offense. Schlup v. Delo, 513

U.S. 298, 324 (1995); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).

C. Cognizable Federal Claim

Under 28 U.S.C. § 2254(a), a state prisoner may challenge her custody “only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” A petitioner's claim is not cognizable on habeas review if it “presents no federal issue

at all.” Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18,

2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in

application of state law . . . are usually not cognizable in federal habeas corpus.” Bey v.

Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th

Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province

of a federal habeas court to reexamine state court determinations on state law questions.”).

A federal habeas court does not function as an additional state appellate court; it does

not review state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610,

614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead,

“federal courts must defer to a state court's interpretation of its own rules of evidence and

procedure” in considering a habeas petition. Id. (quotation omitted). Moreover, “the doctrine

of exhaustion requires that a claim be presented to the state courts under the same theory in

which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir.

1998).

D. AEDPA Standard of Review

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act,

Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), provides in relevant part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the claim

–

(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.

(Id.)

To determine whether relief should be granted, the Court must use the “look-through”

methodology and look to the “last explained state-court judgment” on the petitioner's federal

claim. Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We

think that a presumption which gives them no effect—which simply ‘looks through’ them to

the last reasoned decision—most nearly reflects the role they are ordinarily intended to

play.”); Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018) (“We conclude that federal habeas

law employs a ‘look through’ presumption.”).

“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

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)). “Clearly established Federal law for purposes of § 2254(d)(1) includes

only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v.

Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). “[U]nder the

unreasonable application clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003). “The ‘unreasonable application’ clause requires the state court decision to be more

than incorrect or erroneous”—it must be “objectively unreasonable.” Id.

Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for

a prior state court decision rejecting a claim, the federal court may overturn the state court's

decision only if it was ‘based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Burt v. Titlow, 571 U.S. 12, 18 (2013)

(quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination

of the facts” under § 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins

v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing

the record might disagree” about the finding in question, “on habeas review that does not

suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-

42 (2006). The prisoner bears the burden of rebutting the state court's factual findings “by

clear and convincing evidence.” Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).

For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant

to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by

AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court

relitigation of claims already rejected in state proceedings.” Id. at 103. “It preserves authority

to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree

that the state court’s decision conflicts with this Court's precedents” and “goes no further.”

Id. Thus, in order to obtain federal habeas corpus relief, “a state prisoner must show that the

state court's ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id.

V. ANALYSIS

Ms. Searles asserts eight grounds for relief. The Warden responds that Ms. Searles’

petition should be dismissed in its entirety because she has procedurally defaulted on all of

her claims. The Warden alternatively argues that all of Ms. Searles’ claims fail on the merits.

I agree with the Warden on both arguments.

A. Procedural Default

As noted above, procedural default occurs where a prisoner fails to: (1) comply with

a state procedural rule that prevented the state courts from reaching the merits of the

petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies

were still available. See Wainwright, 433 U.S. at 80, 84-87; Engle, 456 U.S. at 125 n.28;

Williams, 460 F.3d at 806. The Warden argues that Ms. Searles procedurally defaulted on her

claims because the Third Appellate District, the last court to issue a reasoned determination

on the issue, dismissed them as untimely.

Each of Ms. Searles’ eight grounds for relief asserts that she received the ineffective

assistance of appellate counsel. “In Ohio, the vehicle for raising an ineffective assistance of

appellate counsel claim is an application under Rule 26(B).” Landrum v. Mitchell, 625 F.3d

905, 934 (6th Cir. 2010). Ms. Searles filed a Rule 26(B) motion, in which she raised all of the

arguments regarding her appellate counsel’s alleged ineffectiveness that she seeks to assert

here. However, the Third Appellate District dismissed Ms. Searles’ petition, holding that it

was untimely because she had not filed it within 90 days of its March 16, 2020 decision

affirming the trial court judgment on direct appeal, as required under Ohio law. (ECF No. 8-

1, Exhibit 26). The Third Appellate District also held that Ms. Searles had not demonstrated

good cause for her failure to file a timely application. Id.

It is well-settled that “violation of the timeliness requirements of an application for

reopening an appeal . . . constitute[s] [an] adequate and independent state ground[] to preclude

hearing an untimely claim on the merits.” Baker v. Bradshaw, 495 F. App’x 560, 565 (6th

Cir. 2012); see also Scuba v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007) (holding that filing

deadline of Rule 26(B) constitutes a state procedural rule applicable to the petitioner’s claim

and that state court application of filing deadline results in procedural default under Maupin).

Ms. Searles thus procedurally defaulted on her claims by failing to timely raise them through

a Rule 26(B) application.

Ms. Searles’ procedural default can be excused if she demonstrates either both cause

for the default and actual prejudice or that the failure to consider her claims will result in a

fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Ms. Searles first argues that

her procedural default should be excused because her appellate counsel erroneously advised

her that her ineffective assistance of trial counsel claims needed to be raised through a post-

conviction petition rather than through her direct appeal. However, Ms. Searles’ default

occurred when she failed to timely file her Rule 26(B) application, not when she raised her

ineffective assistance of trial counsel claims through a post-conviction petition rather than on

direct appeal. Even assuming that her appellate counsel did give her inaccurate advice

regarding how to assert her ineffective assistance of trial claims, that advice cannot excuse

her procedural default.

Ms. Searles also argues that she could not have known that she had an ineffective

assistance of appellate counsel claim until the trial court dismissed her post-conviction

petition in March 2021. However, it is well-settled that a prisoner’s pro se status or ignorance

of the law does not constitute “cause” to excuse a procedural default. See Bonilla v. Hurley,

370 F.3d 494, 498 (6th Cir. 2004) (“ignorance of the law and procedural requirements for

filing a timely notice of appeal is insufficient to establish cause to excuse [a] procedural

default”); see also Garcia v. Eppinger, No. 1:17CV1090, 2020 WL 3037090, at *16 (N.D.

Ohio May 11, 2020) (“a prisoner's pro se status and ignorance of the law do not constitute

adequate cause to excuse a procedural default.”), report and recommendation adopted, 2020

WL 3036028 (N.D. Ohio June 5 2020).

Ms. Searles next argues that the extraordinary nature of the COVID-19 pandemic

constitutes cause to excuse the default. It is true that “[s]ome courts have found sufficient

cause to excuse default when petitioners, who diligently pursued their rights, faced filing

delays and limited access to law libraries due to the COVID-19 pandemic.” Black v. Warden,

Pickaway Corr. Inst., No. 2:22-cv-3087, 2023 WL 8811032, at *19 (S.D. Ohio Dec. 20,

2023), report and recommendation adopted, 2024 WL 1735073 (S.D. Ohio Apr. 23, 2024).

However, “[t]o satisfy cause to excuse procedural default, a petitioner must offer, with

specificity, how the COVID-19 pandemic and any related restrictions hindered his ability to

timely-file in state court.” Id.

Ms. Searles has not provided specific information establishing that the COVID-19

pandemic prevented her from timely filing her Rule 26(B) application. She argues that

prisoners had no access to the public defender or the law library during the pandemic. (ECF

No. 9, PageID # 571). But “[c]onclusory and general allegations regarding . . . the lack of

legal assistance . . . are simply insufficient” to demonstrate that the pandemic prevented a

timely filing. Sessoms v. Howard, No. 2:24-CV-11275, 2024 WL 3448462, at *5 (E.D. Mich.

July 17, 2024) (holding that pandemic did not constitute cause to excuse petitioner’s failure

to comply with AEDPA statute of limitations where petitioner failed to provide specific

allegations regarding how pandemic prevented timely filing). Notably, Ms. Searles filed her

motion to vacate her guilty plea and her post-conviction petition in August 2020, while the

pandemic was ongoing. She does not explain why she was able to prepare those filings

notwithstanding the pandemic but was unable to file her Rule 26(B) application until almost

two years later.

Ms. Searles further argues that the Ohio Supreme Court’s order granting her leave to

file a delayed appeal demonstrates that the pandemic prevented her from timely filing her

Rule 26(B) application in the Third Appellate District. However, the question is not whether

Ms. Searles has established cause for purposes of Ohio’s rules governing delayed appeals,

but rather whether she has established cause under AEDPA. Ms. Searles does not cite any

cases for the proposition that the Ohio Supreme Court’s ruling is dispositive of the federal

procedural default analysis. I therefore conclude that the COVID-19 pandemic does not

constitute cause that excuses Ms. Searles’ procedural default.

Ms. Searles’ procedural default can also be excused if she presents new, reliable

evidence showing that she is “actually innocent” of the charged offense. Schlup, 513 U.S. at

324. Ms. Searles asserts at various points that she is innocent of the pattern of corrupt activity

charge. Construing her petition broadly, I will assume that she is arguing that the actual

innocence exception applies and excuses her procedural default.

To fall within Schlup’s actual innocence exception, “the petitioner must show that it

is more likely than not that no reasonable juror would have convicted [her] in light of the new

evidence.” Id, at 327. Notably, actual innocence means “factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “The Court [has]

counseled . . . that the actual innocence exception should ‘remain rare’ and ‘only be applied

in the ‘extraordinary case.’” Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) (quoting

Schlup, 513 U.S. at 321).

Ms. Searles’ actual innocence arguments relate only to the charge of engaging in a

pattern of corrupt activity under O.R.C. §§ 2923.32(A)(3). Section 2923.32(A)(3) provides

that an individual who “knowingly has received any proceeds derived, directly or indirectly,

from a pattern of corrupt activity” shall not “use or invest, directly or indirectly, any part of

those proceeds . . . in the acquisition of any title to, or any right, interest, or equity in, real

property . . . “ The indictment alleged that Ms. Searles violated Section 2923.32(A)(3) because

she received the proceeds from identity theft and used it to purchase real property between

May 1, 2009 and February 20, 2019. (ECF No. 8-1, Exhibit 1).

Ms. Searles argues that she is innocent of the pattern of corrupt activity offense for

two reasons. First, as set forth in ground seven of her petition, she argues that the indictment

fails to substantiate an offense under Section 2923.32(A)(3) because she acquired the real

property at issue—a house—in August 2009, while the indictment does not allege any

underlying predicate act of identity theft until 2012. Ms. Searles argues that she cannot have

used the proceeds from identity theft in 2009 when the State did not allege any specific

predicate acts of identity theft until years later. However, the indictment alleges that Ms.

Searles obtained proceeds from a pattern of corrupt activity beginning in May 2009, before

she acquired the property at issue. To the extent Ms. Searles is arguing that the State needed

to allege a specific predicate act predating the acquisition, her argument constitutes a

challenge to the legal sufficiency of the indictment rather than an assertion of factual

innocence, and thus cannot serve as the basis for an actual innocence claim under Schlup. See

Bousley, 523 U.S. at 623.

Ms. Searles also argues that she is actually innocent because she paid for the real

property with the proceeds she received from an insurance claim rather than from identity

theft. To support her argument, Ms. Searles has submitted various documents, including the

purchase agreement showing that the house was purchased in the victim’s name in August

2009, as well as documents showing that she received insurance payments totaling $15,000

shortly before the property was purchased. (ECF Nos. 1-17, 1-19).

While this argument arguably raises a factual innocence challenge, Ms. Searles has

not established that no reasonable juror would have convicted her of engaging in a pattern of

corrupt activity in light of this evidence. In particular, Ms. Searles has no direct evidence that

the money from the insurance payment went to pay for the house. To the contrary, she has

submitted a letter from the Van Wert County auditor’s office stating that they have no records

regarding who paid for the house or how it was paid for. (ECF No. 1-16). While Ms. Searles

argues that the timing shows that she did not buy the house with the proceeds from identity

theft, her argument is just that: an argument. Given the evidence that Ms. Searles has

presented, I cannot say that no reasonable juror could have concluded that she did, in fact, use

the proceeds from the pattern of corrupt activities to acquire real property in violation of

O.R.C. § 2923.32(A)(3). I therefore recommend that the Court dismiss Ms. Searles’ petition

in its entirety because she has procedurally defaulted on all of her claims.

B. Merits

Alternatively, I recommend that the Court deny Ms. Searles’ claims on the merits

because she has not established that she received the ineffective assistance of appellate

counsel or that any alleged ineffectiveness prejudiced her.

The right to effective assistance of counsel extends through the first appeal as of right.

Evitts v. Lucey, 469 U.S. 387, 394 (1985). A petitioner claiming ineffective assistance of

counsel must show that: (1) counsel’s representation “fell below an objective standard of

reasonableness,” such that he was not performing as counsel guaranteed under the Sixth

Amendment; and (2) counsel’s deficient performance prejudiced the defendant. Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984). Under the first prong, the petitioner must

overcome the “strong[] presum[ption that counsel] rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at 690. For

prejudice, the petitioner must show that there was a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. The Strickland standard is “extremely deferential.” Kelly v. Lazaroff, 846 F.3d 819,

829 (6th Cir. 2017). “[T]he goal is not to ensure that a criminal defendant be afforded perfect

counsel, but rather ‘to ensure that the adversarial testing process works to produce a just result

under the standards governing decision.’” Id. (quoting Strickland, 466 U.S. at 687).

Ms. Searles argues that her appellate counsel was ineffective in failing to challenge

whether her plea was knowing and voluntary. She also argues that her appellate counsel was

ineffective because he erroneously advised her that she needed to raise her ineffective

assistance of trial counsel arguments through a post-conviction petition rather than in her

direct appeal. Finally, she argues that her appellate counsel was ineffective in failing to raise

a number of other arguments on appeal. I agree with the Warden that Ms. Searles’ arguments

are without merit.

1. Ground One: Voluntariness of Plea

In her first ground for relief, Ms. Searles alleges that her appellate counsel was

ineffective for failing to argue that her plea was not knowing and voluntary. Specifically, she

argues that appellate counsel should have argued her plea was involuntary because: (1) she

did not understand the factual basis for the pattern of corrupt activity charge; (2) she was

suffering from mental health issues as a result of the death of her son; and (3) her trial counsel

led her to believe she would receive a sentence of community confinement rather than prison.

A petitioner arguing that appellate counsel was ineffective in failing to a raise a

particular argument faces a heavy burden. It is well-settled that “the Strickland performance

standard does not require an attorney to raise every non-frivolous issue on appeal.” Caver v.

Straub, 349 F.3d 340, 348 (6th Cir. 2003). “Experienced advocates since time beyond

memory have emphasized the importance of winnowing out weaker arguments on appeal and

focusing on one central issue if possible, or at most a few key issues.” Jones v. Barnes, 463

U.S. 745, 751-52 (1983). Indeed, winnowing out weaker arguments “far from being evidence

of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S.

527, 536 (1986). Thus, to show that appellate counsel was ineffective in raising one argument

over another, “the petitioner must demonstrate that the issue not presented ‘was clearly

stronger than issues that counsel did present.’” Caver, 349 F.3d at 348 (quoting Smith v.

Robbins, 528 U.S. 259, 289 (2000)). Ms. Searles has not shown that the argument that her

plea was involuntary was clearly stronger than the challenge to her sentence that appellate

counsel did raise.

“[G]uilty pleas ‘not only must be voluntary but must be knowing, intelligent acts

done with sufficient awareness of the relevant circumstances and likely consequences.’”

Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009) (quoting Brady v. United States,

397 U.S. 742, 748 (1970)). The validity of the plea must be determined from the “totality of

the circumstances surrounding the plea.” Abdus-Samad v. Bell, 420 F.3d 614, 631 (6th Cir.

2005) (citing Brady, 397 U.S. 747).

When a habeas petitioner challenges the validity of her plea, “the state generally

satisfies its burden [to show that the plea was voluntary and intelligent] by producing a

transcript of the state court proceeding,” Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir.

1993). The state court’s factual finding that the plea was proper is accorded a presumption of

correctness unless the transcript is inadequate to show that the plea was voluntary and

intelligent. Id. at 326-327; see U.S.C. § 2254 (e)(1).

The Warden has filed a transcript of the plea hearing. The transcript reflects that Ms.

Searles expressly informed the trial court that she had read and understood the charges against

her and the maximum sentence that she could face as a result of pleading guilty. (ECF No. 8-

2, PageID # 515-19). Ms. Searles also confirmed that she understood the constitutional rights

she was waiving as a result of her guilty plea. (ECF No. 8-2, PageID # 519-21). Ms. Searles

further stated that she had discussed the evidence provided by the State with her attorney and

that she was satisfied with the advice she received from her attorney. (ECF No. 8-2, PageID

# 523-24). The transcript also reflects that Ms. Searles informed the trial court that she was

experiencing certain physical issues but that her mental health was okay. (ECF No. 8-2,

PageID # 528).

In light Ms. Searles’ statements during the plea hearing, it was not an unreasonable

exercise of appellate counsel’s professional judgment to forego an argument that Ms. Searles’

plea was unknowing and involuntary. Moreover, while Ms. Searles asserts that her trial

counsel told her she would likely receive probation, “[u]nfulfilled subjective expectations of

counsel and a defendant regarding the possible length of sentence do not render an otherwise

valid plea involuntary.” United States v. Ford, 15 F. App’x 303, 308 (6th Cir. 2001); see also

Lee v. United States, No. 2:12-cv-327, 2013 WL 3724876, at *18 (S.D. Ohio Jul 15, 2013)

(holding that plea was not involuntary despite counsel’s inaccurate prediction regarding

sentence length), report and recommendation adopted, 2013 WL 2090580 (S.D. Ohio May

19, 2014). I therefore alternatively recommend that the Court deny Ms. Searles’ first ground

for relief on the merits.

2. Ground Two: Inaccurate Advice Regarding Ineffective Assistance of Trial

Counsel Claims

In her second round for relief, Ms. Searles asserts that her appellate counsel was

ineffective because he incorrectly told her that she needed to raise her ineffective assistance

of trial counsel claims through a post-conviction petition rather than through her direct appeal.

Ms. Searles argues that her counsel’s erroneous advice resulted in the trial court denying her

post-conviction petition on res judicata grounds and prevented her from obtaining

consideration of the merits of her claims.

Ohio’s res judicata rule “prevents postconviction relief on ‘any defense or any claimed

lack of due process that was raised or could have been raised by the defendant at trial, which

resulted in that judgment or conviction, or on an appeal from that judgment.’” Wogenstahl v.

Mitchell, 668 F.3d 307, 341 (6th Cir. 2012) (quoting State v. Cole, 2 Ohio St. 3d 112, 113

(1982)) (emphasis omitted). “All claims, including ineffective-assistance-of-trial-counsel

claims, must be raised on direct appeal.” Jones v. Bradshaw, 46 F.4th 459, 485 (6th Cir.

2022). “Only claims involving evidence outside the trial record (sometimes referred to as

evidence ‘dehors’ the record) may be first raised in a petition for state post-conviction relief.”

Id.

Ms. Searles argues that her appellate counsel erroneously advised her that her

ineffective assistance of trial counsel claims needed to be raised in a postconviction petition

rather than on direct appeal. It is not clear whether the advice from Ms. Searles’ appellate

counsel was entirely incorrect with respect to all of Ms. Searles’ claims. It is undoubtedly true

that the trial court dismissed Ms. Searles’ postconviction petition because it concluded that

Ms. Searles’ claims were barred by res judicata. However, Ms. Searles’ primary argument in

her postconviction petition was that her trial counsel was ineffective in failing to challenge

the dates of the predicate acts with respect to the pattern of corrupt activity charge, a claim

that corresponds to her seventh ground for relief in her petition. (ECF No. 8-1, Exhibit 18).

The trial court’s order was brief, and it is unclear whether and to what extent the trial court

was holding that Ms. Searles’ other grounds for relief were also barred by res judicata.

Nonetheless, assuming that Ms. Searles has accurately reported what her appellate counsel

advised her, she appears to have alleged that her counsel told her to raise in a postconviction

petition at least one claim that the Ohio courts subsequently determined should have been

raised in her direct appeal.

I need not decide whether appellate counsel’s erroneous advice fell below an objective

standard of reasonableness because, even if it did, Ms. Searles has not shown that she suffered

any prejudice. See Strickland, 466 U.S. at 697 (“a court need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies”). As discussed in connection with Ms. Searles’ other

grounds for relief, each of the arguments that she alleges she was prevented from raising is

without merit, either because Ms. Searles waived her constitutional challenges, or because

she has not shown a reasonable probability that the result of the proceeding would have been

different had she been able to present those arguments. Because Ms. Searles cannot

demonstrate prejudice, her claim fails. See Strickland, 466 U.S. at 692. I therefore

alternatively recommend that the Court deny Ms. Searles’ second ground for relief on the

merits.

3. Grounds Three Through Eight: Failure to Raise Ineffective Assistance of

Trial Counsel Arguments

Finally, in grounds three through eight, Ms. Searles argues that her appellate counsel

was ineffective in failing to raise a number of arguments regarding her trial counsel’s alleged

ineffectiveness, including that: (1) trial counsel failed to argue that the police conducted an

unlawful search and seizure; (2) trial counsel misinformed the trial court regarding whether

the victim of the identity theft was developmentally disabled; (3) trial counsel was ineffective

in not obtaining a psychological evaluation; (4) trial counsel was ineffective in not

challenging alleged errors in the presentence report; (5) trial counsel was ineffective in not

challenging the alleged predicate offenses for the pattern of corrupt activity charge; and (6)

trial counsel was ineffective in failing to obtain relevant documents and records that Ms.

Searles asserts would have disproven the State’s allegations. As with her first ground for

relief, Ms. Searles has failed to demonstrate that any of these arguments are stronger than the

argument her appellate counsel did raise.

As an initial matter, the Warden correctly argues that Ms. Searles waived several of

her claims by entering an unconditional guilty plea. “Generally, a voluntary and unconditional

guilty plea ‘bars any subsequent non-jurisdictional attack on the conviction.’” United States

v. Corp, 668 F.3d 379, 384 (6th Cir. 2012) (quoting United States v. Martin, 526 F.3d 926,

932 (6th Cir. 2008). This is so because:

[A] guilty plea represents a break in the chain of events which has preceded it in the

criminal process. When a criminal defendant has solemnly admitted in open court that

he is in fact guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973).

Therefore, “after the entry of an unconditional plea, a defendant may only attack the

court’s jurisdiction and the voluntary and intelligent character of the plea itself.” Werth v.

Bell, 692 F.3d 486, 495 (6th Cir. 2012). The same is true under Ohio law. See Brown v.

McConahay, No. 1:23-cv-753, 2023 WL 9556586, at *13 (N.D. Ohio Dec. 18, 2023) (“As

recognized by the Ohio Court of Appeals, Brown waived his ineffective assistance of counsel

claim under Ohio law when he entered his guilty plea.”), report and recommendation

adopted, 2024 WL 177116 (N.D. Ohio Jan. 17, 2024).

As the Warden correctly notes, at least three of Ms. Searles’ ineffective assistance of

counsel claims relate to alleged constitutional deprivations that occurred prior to the plea: (1)

ground three, which asserts that trial counsel was ineffective in failing to challenge an

allegedly unlawful search and seizure; (2) ground seven, which alleges that trial counsel was

ineffective in failing to argue that the dates alleged for certain predicate acts alleged in the

indictment disproved the pattern of corrupt activity charge; and (3) ground eight, which

challenges trial counsel’s failure to subpoena documents. Because Ms. Searles’ guilty plea

waived those claims, her appellate counsel was not ineffective in failing to raise them on

appeal. See McConahay, 2023 WL 9556586 at *14 (holding that petitioner “cannot

demonstrate that his appellate counsel was ineffective or objectively unreasonable for failing

to raise a waived claim on direct appeal”).

In addition, as the Warden notes, Ms. Searles’ remaining claims are based on

arguments that did not appear in the trial court record and thus could not be raised on direct

appeal. In her fourth ground for relief, Ms. Searles argues that her trial counsel misrepresented

whether the victim was disabled, relying on external evidence that the victim graduated from

high school and was denied social security benefits because his IQ was above 70. In ground

five, Ms. Searles asserts that trial counsel should have obtained a psychological evaluation

for her because she was experiencing mental health issues due to the recent death of her son.

Documentation of those alleged issues does not appear in the trial court record. Rather, as

noted above, Ms. Searles said during the plea hearing that her mental status was not impaired.

(ECF No. 8-2, PageID # 528). Finally, in ground six, Ms. Searles asserts that there are errors

in the presentence report, again relying on documents and evidence not presented to the trial

court.

Because each of these arguments relied on evidence dehors the record, Ms. Searles’

appellate counsel could not have successfully raised them in her direct appeal under Ohio

law. See, e.g., Young v. Turner, No. 1:15-cv-637, 2016 WL 6216543, at *2 (S.D. Ohio Oct.

25, 2016) (noting that pre-sentence reports are confidential under Ohio law and are not part

of record on appeal, such that ineffective assistance of counsel claim based on pre-sentence

report could not be raised on direct appeal), report and recommendation adopted, 2020 WL

7040644 (S.D. Ohio Dec. 1, 2020); Simpson v. Warden, Lebanon Corr. Inst., No. 3:17-cv-

300, 2018 WL 1315018, at *3 (S.D. Ohio Mar. 14, 2018) (holding that because claim that

counsel was ineffective in failing to investigate petitioner’s mental status “necessarily

depended on evidence outside the appellate record, it could not have been presented on direct

appeal”), report and recommendation adopted, 2018 WL 3008340 (S.D. Ohio June 14, 2018).

The ineffective assistance of trial counsel claims that Ms. Searles asserts her appellate

counsel should have raised thus were not clearly stronger than the argument that Ms. Searles’

appellate counsel did raise, and I alternatively recommend that the Court deny Ms. Searles’

third through eighth grounds for relief on the merits.

VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY

A. Legal Standard

As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not

appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate

of appealability. The statute further provides that “[a] certificate of appealability 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).

Although the statute does not define what constitutes a “substantial showing” of a

denial of a constitutional right, the burden on the petitioner is obviously less than the burden

for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the

courts that have considered the issue have concluded that “[a] ‘substantial showing’ requires

the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the questions are adequate to deserve

encouragement to proceed further.’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that

certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).

Rule 11 of the Rules Governing Section 2254 Cases in the United States District

Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),

28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue

or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C.

§ 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which

specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule

11 requirement that the court either grant or deny the certificate of appealability at the time

of its final adverse order, a recommendation regarding the certificate of appealability issue is

included here.

B. Analysis

Ms. Searles has not made a substantial showing of a denial of a constitutional right

for the reasons set forth above. Because jurists of reason would not find these conclusions

debatable, I recommend that no certificate of appealability issue in this case.

VII. RECOMMENDATION

For the foregoing reasons, I RECOMMEND that the DISMISS and/or DENY Ms.

Searles’ petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend that

the Court not grant her a certificate of appealability.

Dated: February 11, 2025 Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b)

within fourteen (14) days after being served with a copy thereof, and

failure to file timely objections within the fourteen (14) day period

shall constitute a waiver of subsequent review, absent a showing of

good cause for such failure. Such party shall file with the Clerk of Court,

and serve on the Magistrate Judge and all parties, written objections which

shall specifically identify the portions of the proposed findings,

recommendations, or report to which objection is made and the basis for

such objections. Any party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. The

District Judge to whom the case was assigned shall make a de novo

determination of those portions of the report or specified proposed findings

or recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

Magistrate Judge. The District Judge need conduct a new hearing only in

such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also

receive further evidence, recall witnesses or recommit the matter to the

Magistrate Judge with instructions.

Id. (emphasis added).

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

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, 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.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).