1 Numerals in parentheses preceded by the letters "GPT" refer to pages in the Guilty Plea

Transcript of September 11, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

STEVE BARTOSEK, )

)

Petitioner, )

)

v. ) Civil Action No. 04-360E

) JUDGE COHILL

S.C.I. ROCKVIEW, et al., ) CHIEF MAGISTRATE JUDGE BAXTER

)

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that the Petition for Writ of Habeas Corpus be dismissed and that

a certificate of appealability be denied.

II. REPORT

Petitioner, Steve Bartosek, is a state prisoner incarcerated at the State Correctional

Institution at Rockview, located in Bellefonte, Pennsylvania. Bartosek is serving a sentence of 7 1⁄2

to 15 years imprisonment imposed after Bartosek pled guilty to robbery and related offenses on

September 11, 2000.

1. Procedural History.

On September 11, 2000, petitioner appeared before the Honorable Fred P. Anthony,

in the Court of Common Pleas of Erie County, Pennsylvania, and tendered a plea of guilty to all of

the charges filed against him. The plea colloquy shows that petitioner was informed of the possible

sentences for the crimes charged (GPT 7-8)1 and the elements of the offenses (GPT 8-12). He pled

"guilty" to all counts. Petitioner told the court that he read and understood a written recitation of

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2 Numerals in parentheses preceded by the letters "ST" refer to pages in the Sentencing

Transcript of October 12, 2000.

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his rights (GPT 13), and that he was aware that a mandatory 5 year sentence applied in his case (GPT

14).

Petitioner appeared for sentencing on October 12, 2000. His right to appeal was

explained to him at the outset (ST 2-4)2. He signed a written explanation of his appellate rights (ST

5). Petitioner's attorney noted that petitioner's two co-defendants had already been sentenced, and

that petitioner was aware of the sentences they received (ST 5, 10).

On October 19, 2000, petitioner filed a counseled Motion to Modify/Reconsider

Sentence in which he asserted that his sentence should be reduced to a total of 5 to 10 years due to

his youth (State Court Record, Docket No. 15). The motion was denied on October 23, 2000 (Id.,

Docket No. 16). Petitioner next filed, by new counsel, an untimely motion to withdraw his guilty

plea on November 13, 2000 (id., Docket No. 17). He also filed an appeal from the judgment of

sentence that same date (id., Docket No. 18). The trial court denied the motion to withdraw on the

basis that it lacked jurisdiction due to the filing of a direct appeal (id., Docket No. 19).

Petitioner raised three claims on direct appeal to the Superior Court:

1. Was petitioner's guilty plea involuntary or was it made knowingly?

2. Was petitioner denied effective assistance of counsel in connection

with his guilty plea?

3. Did the Court err in failing to hold a hearing on petitioner's Motion

to Withdraw his Guilty Plea?

(Id., Docket No. 21 at 2). The Superior Court affirmed the judgment of sentence on September 21,

2001. The court began its analysis by noting that Pennsylvania law requires inquiry into six areas

during a guilty plea colloquy: (1) the nature of the charges; (2) the factual basis for the plea; (3)

whether the defendant understands his right to a jury trial; (4) whether the defendant understands the

presumption of innocence; (5) whether the defendant is aware of the permissible ranges of sentences;

and (6) whether the defendant is aware that a judge is not bound by a plea agreement unless he or

she accepts it (Id. at 3). The Superior Court then made the following findings:

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Prior to entering his guilty plea, Assistant District Attorney Garrett

Taylor ("Taylor") explained each of the above-mentioned rights to Bartosek

. . . N.T., 9/11/00, at 3-5. When asked, Bartosek stated that he understood the

rights explained to him by Taylor. Id. at 7. In addition, each of the criminal

charges was explained to Bartosek, as well as the maximum possible

sentences for each charge. Id. at 7-8. Bartosek was also informed that these

sentences could be imposed consecutively, and that the Commonwealth was

seeking the five-year mandatoryminimum sentence for the charge of robbery.

Id. at 8. Further, Bartosek was made aware that the sentencing judge was not

bound by any sentencing recommendations. Id. at 4. When asked, Bartosek

indicated that he understood the sentences that could be imposed for each of

the charges. Id. at 8.

Taylor also informed Bartosek of the factual basis for each of the

charges, and Bartosek indicated that he understood the basis for each charge.

Id. at 8-12. Finally, Bartosek testified at the guilty plea hearing that he

understood the written guilty plea colloquy, and that he had gone over the

document with his lawyer. Id. at 13.

Thus, the record demonstratesthatBartosek participated in a complete

and thorough written and oral colloquy. Bartosek's claim that his plea

counsel was ineffective for promising Bartosek a sentence of time served is

not supported by Bartosek's statements during the guilty plea colloquy.

Accordingly, we cannot grant relief on these claims.

(Id., Docket No. 21 at 4-5). Petitioner did not seek review in the Supreme Court of Pennsylvania.

Petitioner next filed a petition pursuant to the Post Conviction Relief Act (PCRA) on

September 16, 2002, and raised the following claim:

I was told by my lawyer Anthony Logue that I had to make a plea when I

appeared in court. Because if I take this case to trial and lose I would receive

(85) years. So when you "you" get in court you must say yes I understand

when the Judge ask okay. Now the D.A. are going to read off some charges

and you are going to plea guilty to every charge. Then you would received

(45 to 90) months and not 85 years. I told my lawyer I did not understand

what was happening. He stated don't worry I'll take care of everything alright

just make your Plea. I didn't know at the time understand what was

happening so I did what the lawyer told me. He "coerced" me into making

this plea of guilty to all of the charges. I reluctantly did what the Lawyer ask

of me.

(State Court Record, Docket No. 22)(errors in original). Counsel was appointed to represent

petitioner and filed a Petition for Leave to Withdraw as Counsel which had a "no-merit" letter

attached thereto (id., Docket No. 28). Counsel noted that petitioner was attempting to again assert

that plea counsel was ineffective in recommending that he plead guilty, an issue already addressed

and rejected on direct appeal (id.). The trial court dismissed the PCRA petition finding that the

voluntariness of petitioner's plea had been litigated on direct appeal (id., Docket Nos. 24 and 25).

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The Superior Court affirmed the denial of PCRA relief on March 18, 2004, agreeing

with the PCRA court that the voluntariness of petitioner's plea had been litigated on direct appeal

(State Court Record, Docket No. 35). A single claim was raised in petitioner's subsequent petition

for allowance of appeal:

A) Whether the PCRA and Appellate Court committed legal error in adopting

the no merit letter [from PCRA counsel] as it fails to comply with

Turner/Finely, insofar as the last reason[ed] judgment failed to address the

merits of plea counsel's assertion that appellant would receive the same

sentence as his co-defendants.

(Commonwealth's Exhibit 3, Petition for Allowance of Appeal at 2). The Supreme Court of

Pennsylvania denied the petition on November 30, 2004.

Petitioner now files the instant petition and presents the following claims:

1. Ineffective counsel.

2. Denied motion to withdraw plea.

3. Defendant should have received same sentence as co-defendants.

4. Guilty plea was coerced.

5. Failure of court to comply with Turner/Finley.

6. Illegal sentence as being the result of the state court using Batosek's father's

prior record to determine guideline ranges.

7. Defendant was harassed and threatened by a Corrections Officer to

plead guilty.

8. Trial counsel failed to cross-examine witnesses.

9. Commonwealth withheld nature of plea agreements with codefendants.

10. Counsel did not investigate the existence of plea agreements with codefendants.

11. Government interference prevented petitioner from raising these

claims.

(Docket No. 3, ¶13). The Commonwealth has filed a response to the petition (Docket No. 12) and

it is now ripe for disposition.

2. Exhaustion.

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State prisoners seeking habeas relief in federal court are required to exhaust available

state court remedies. This requires that the claims presented in the federal court have already been

presented in substantially the same form to the state's highest court, with identity of both facts and

legal theory. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). Even if the claims have been so

presented to the state's highest court, "[a]n applicant shall not be deemed to have exhausted the

remedies available in the courts of the State . . . if he has the right under the law of the State to raise,

by any available procedure, the question presented." 28 U.S.C. §2254(c); Castille v. Peoples, 489

U.S. 346 (1989). And, although the exhaustion requirement is not jurisdictional, it "should be

strictly adhered to because it expresses respect for our dual judicial system and concern for

harmonious relations between the two adjudicatory institutions." Landano v. Rafferty, 897 F.2d 661,

669 (1990).

Claims 3 and 6-11 have never been presented to the state courts in any fashion.

However, petitioner no longer has any means to raise these claims in the state courts since he has

already filed one PCRA petition, and his conviction became final more than a year ago. 42 Pa.C.S.A.

§ 9545(b)(1)(petition, even second or subsequent, must be filed within one year of the time

conviction becomes final). Exhaustion may, therefore, be excused in this case. "If a claim has not

been fairly presented to the state courts but state law clearly forecloses review, see Lovasz v.

Vaughn, 134 F.3d 146, 148 (3d Cir.1998), 28 U.S.C. § 2254(b)(1)(B) (1988) (amended 1996),

exhaustion is excused, see, e.g., Lambert [v. Blackwell], 134 F.3d [506] at 513, 517-19 [(3d Cir.

1997)]; Doctor v. Walters, 96 F.3d 675, 681 (3d Cir.1996), but the doctrine of procedural default

may come into play." Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). Thus, exhaustion is

excused, but petitioner's failure to present his claims to the state courts will again be considered in

the context of procedural default.

3. Procedural default.

Like the exhaustion requirement, the procedural default doctrine is based upon

notions of comity and federalism. The procedural default barrier rests upon the "independent and

adequate state grounds" doctrine, which dictates that federal courts will not review a state court

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decision involving a question of federal law if the state court decision is based on state law that is

"independent" of the federal question and "adequate" to support the judgment. Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

A state's procedural rules are entitled to deference by federal courts, and violation of

a state procedural rule may constitute an independent and adequate state ground for denial of federal

review of habeas claims. Coleman v. Thompson, 501 U.S. at 750. Violations of a state's procedural

rules may constitute an independent and adequate state ground sufficient to invoke the procedural

default doctrine even where no state court has concluded that a petitioner is procedurally barred from

raising his claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 116 S.Ct. 1027

(1996).

Federalhabeasreviewis not available to a petitioner whose constitutional claims have

not been addressed on the merits due to procedural default unless such 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 claims will result in a fundamental miscarriage of justice. Edwards v.

Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. at 750.

Petitioner has not properly presented claims 3 and 6-11 to the state courts since he

failed to present them on direct appeal or through his PCRA petition. Commonwealth v. Bond, 819

A.2d 33, 39 (Pa. 2002)("Even if this Court were to assume that these two claims of trial error were

not previously litigated, they would be waived under the PCRA since appellant's present theories

could have been presented on direct appeal."); 42 Pa.C.S. §9544(b)(issue is waived if petitioner

failed to raise it and the issue could have been raised before trial, at trial, on appeal, in habeas corpus

proceeding, or in prior proceeding under PCRA). Therefore, state court procedural default bars

review of these claims in this court absent petitioner satisfying the "cause and prejudice" standard.

To satisfy the cause standard, petitioner must demonstrate that some objective factor

external to the defense impeded his efforts to raise the claim in state court. McCleskey v. Zant, 499

U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner asserts as his 11th

claim that he was prevented from raising his claims due to government "inference" [sic]. He asserts

that unspecified documents were not released to him, making review of this claim difficult.

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3 To the extent that petitioner may be asserting that state court counsel rendered ineffective

assistance, such a claim may constitute cause for a procedural default. Here, however,

petitioner's failure to preserve claims in his PCRA proceedings is an independent and adequate

basis for finding procedural default. "There is no constitutional right to an attorney in state

post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95

L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989)

(applying the rule to capital cases). Consequently, a petitioner cannot claim constitutionally

ineffective assistance of counsel in such proceedings. See Wainwright v. Torna, 455 U.S. 586,

102 S.Ct. 1300, 71 L.Ed.2d 475 (1982)(where there is no constitutional right to counsel there

can be no deprivation of effective assistance)." Coleman v. Thompson, 501 U.S. at 752. Thus,

the alleged ineffectiveness of PCRA counsel in failing to raise issues cannot constitute "cause"

for purposes of procedural default.

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However, a review of the claims petitioner failed to raise, in the context of the available record,

renders this assertion baseless. With respect to petitioner's third claim, if petitioner believed he

should have received the same sentence as his co-defendants, he could have raised this issue at any

time, even prior to his guilty plea, since his co-defendants had already been sentenced when

petitioner pled guilty. A similar analysis applies to each of petitioner's remaining defaulted claims.

Petitioner was certainly aware of, or should have been aware of, the basis for his claims that his

sentence was improperly computed on the basis of erroneous information, and that counsel failed

to investigate the existence of plea bargainswith petitioner's co-defendants. Likewise, petitioner was

certainly aware of any threats which may have been made to induce his plea prior to the filing of his

state court appeals. Thus, petitioner does not offer any credible explanation for his failure to

properly raised his claims in the state court and, accordingly, has not established cause for those

defaults.3

Because Petitioner has failed to establish cause for his procedural defaults, the Court

need not consider the question of actual prejudice. See Murray v. Carrier, 477 U.S. 478, 495 (1986).

Although petitioner cannot demonstrate the necessary "cause," this court may still

review his claims if he can show that a "fundamental miscarriage of justice would result from a

failure to entertain the claim." McCleskey, 499 U.S. at 495. This court may use its discretion to

correct a fundamental miscarriage of justice if it appears that a "constitutional violation probably

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resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. See also

Coleman, 501 U.S. at 748; McCleskey, 499 U.S. at 502. Under the "miscarriage of justice" standard,

a petitioner must present new evidence of innocence and persuade the district court that, in light of

the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a

reasonable doubt. Schlup v. Delo, 513 U.S. 298 (1995). This is a stronger showing than is required

to establish prejudice and is found only in a truly "extraordinary" case. Id. To succeed on an actual

innocence claim, a petitioner must invoke "reliable evidence not presented at trial." Calderon v.

Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and "show that it is more

likely than not that no reasonable juror would have convicted him in light of new evidence presented

in his habeas petition." Schlup, 513 U.S. at 327.

Here, petitioner's sentencing claims (3 and 6) relate to discretionary aspects of the

sentence imposed. As noted above, petitioner was informed during his plea colloquy that a

mandatory sentence of 5 years would be applied in this case, and that the court was free to sentence

as it saw fit with respect to the remaining charges. Indeed, the state court's sentence was manifestly

within the legal limits, and neither of these claims raises an issue of actual innocence.

Petitioner's claims 7-11 likewise do not implicate actual innocence since they are

merely offered as a means of attacking the voluntariness of petitioner's guilty plea (or, with respect

to claim 11, to act as a means of excusing his failure to raise other claims in a timely fashion in the

state courts). The state court determined that petitioner tendered a fully informed and knowing plea

of guilty to the charges. Petitioner's complaints concerning alleged threats by a corrections officer

(which petitioner did not mention at all during state court proceedings) and his complaints

concerning plea counsel's advice, simply do not amount to a claim of actual innocence. In fact,

petitioner nowhere asserts that he is actually innocent of the crimes charged. Petitioner cannot,

therefore, overcome the procedural default with respect to claims 3 and 6-11.

4. Merits.

Section 2254 of the federal habeas corpus statute provides the standard of review for

federal court review of state court criminal determinations. 28 U.S.C. § 2254. Specifically, a federal

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court must accord a presumption of correctness to a state court's factual findings, which a petitioner

can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court’s factual

findings are not made explicit, a federal court’s "duty is to begin with the [state] court’s legal

conclusion and reason backward to the factual premises that, as a matter of reason and logic, must

have undergirded it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining what

implicit factual findings a state court made in reaching a conclusion, a federal court must infer that

the state court applied federal law correctly. Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433

(1982)).

A federal court may not issue the writ unless it concludes that the state court's

adjudication resulted in a decision that was "contrary to," or an "unreasonable application of," clearly

established federal law as determined by the Supreme Court of the United States. 28 U.S.C. §

2254(d)(1). Recently, in Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme

Court discussed the independent meanings of the "contrary to" and "unreasonable application"

clauses contained within § 2254(d)(1).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by this Court on a question of

law or if the state court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under 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.

Williams, 529 U.S. at 411-413.

The Supreme Court further clarified that a federal habeas court making the

unreasonable application inquiry should ask whether the state court’s application of clearly

established federal law was objectively unreasonable. Id. at 409. "Under §2254(d)(1)'s unreasonable

application clause, then, a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable." Id. at 411.

Petitioner asserts that counsel was ineffective in either coercing him to plead guilty,

or in failing to inform him of his rights prior to the plea (Claims 1 and 2). He also asserts that the

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trial court should have permitted him to withdraw his plea for the same reasons (Claim 4). Each of

these claims is defeated by the state court's findings and ruling concerning the validity of his guilty

plea. Specifically, the Superior Court made factual findings that petitioner evinced an understanding

of the rights he was waiving, and that he was informed of the direct consequences of his plea. A

review of the guilty plea transcript supports these findings.

Whether a plea of guilty is voluntary for purposes of the federal constitution is a

question of federal law. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). To determine whether

a guilty plea represents a voluntary and intelligent choice, a reviewing court must examine the

totality of the circumstances surrounding the plea. Brady v. United States, 397 U.S. 742, 749 (1970).

To ensure that a plea is both knowing and voluntary, it cannot have been induced through

misrepresentation or coercion, Brady, 397 U.S. at 750, the defendant must have notice of the nature

of the charge(s) against him, Henderson v. Morgan, 426 U.S. 637, 645 (1976), the defendant must

have an understanding of the law in relation to the specific facts at issue, McCarthy v. United States,

394 U.S. 459, 466 (1969), and the defendant must appreciate the consequences of the plea, i.e., he

must understand the rights he is surrendering through his plea. In reviewing whether a guilty plea

is "voluntary" for purposes of the U.S. Constitution, the federal courts must apply federal law. Zilich

v. Reid, 36 F.3d 317, 320 (3d Cir. 1994). Id.

Once entered, a defendant does not have an absolute right to withdraw a guilty plea.

United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). Rather, a plea of guilty entered by one fully

aware of the direct consequences must stand unless induced by threats, misrepresentation, or

improper promises. Mabry v. Johnson,(1978) 467 U.S. 504, 509 (1984). It is only when a defendant

is not fairly apprised of the direct consequences of pleading guilty that he may challenge his guilty

plea under the Due Process Clause. Id.

Here, the state court's findings are entitled to a presumption of correctness, and

petitioner has not presented clear and convincing evidence that the findings are incorrect. Hence,

the state courts' conclusion that petitioner's plea was knowing and voluntary is not an unreasonable

application of federal law to the facts of this case. Mabry v. Johnson, 467 U.S. 504, 509 (1984)(plea

of guilty must stand absent proof that the defendant was unaware of the direct consequences of his

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plea, or if it was induced by threats, misrepresentations or improper promises), citing Brady v.

United States, 397 U.S. 742, 755 (1970). Therefore, petitioner's claim that the trial court should have

granted the motion to withdraw the plea (Claim 4) or that the plea was coerced (Claim 2) must fail.

Likewise, petitioner's claim that counsel was ineffective is also rendered meritless by

the state court's findings. In this respect, the familiar two-prong standard from Strickland v.

Washington, 466 U.S. 668, 684 (1984) applies, and for a claim to succeed a court must find both

that:1) counsel's performance was unreasonable; and 2) counsel's unreasonable performance actually

prejudiced the defense. Strickland, 466 U.S. at 687. This test also applies to ineffective assistance

of counsel claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Meyers

v. Gillis, 142 F.3d 664, 666 (3d Cir. 1998). The first prong may be shown in several ways, e.g.,

where a plea offer is never communicated to the client; where plea information is communicated so

incorrectly that it undermines the client's ability to make an intelligent decision whether or not to

accept a plea offer, or where a guilty plea is induced by misleading statements of defense counsel.

To satisfy the second "prejudice" prong, a defendant must show that there is a reasonable probability

that, but for counsel's errors, he or she would not have pled guilty and would have proceeded to trial.

Hill, 474 U.S. at 58-59. A federal habeas petitioner seeking to withdraw a guilty plea based upon

the ineffective assistance of counsel must show that counsel's advice was not within the range of

competence demanded by attorneys in criminal cases; only serious derelictions on the part of counsel

entitle a petitioner to relief. Siers v. Ryan, 773 F.2d 37 (3d Cir. 1985).

As noted above, the state courts have explicitly found that the plea in this case was

knowing and voluntary. Petitioner's claim that counsel was ineffective for failing to explain his

rights or for "coercing" him to plead guilty (by detailing the maximum sentence he potentially faced)

must be rejected. The state court has properly concluded that petitioner entered a knowing and

intelligent plea.

Lastly, petitioner asserts that the PCRA court improperly permitted counsel to file a

"no-merit" letter (Claim 5). This claim does not warrant relief because there is no constitutional

right to legal representation during a state court collateral appeal, Pennsylvania v. Finley, supra, and,

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accordingly, no constitutional prejudice could have accrued even if the no-merit letter was somehow

deficient.

B. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. §

2253(as amended)) codified standards governing the issuance of a certificate of appealability for

appellate review of a district court’s disposition of a habeas petition. Amended Section 2253

provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial

showing of the denial of a constitutional right.” Where the federal district court has rejected a

constitutional claim on its merits, “the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong...” Szuchon v.

Lehman, 273 F.3d 299, 312 (3d Cir. 2001) quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000).

A petitioner meets this standard if he can show that the issue “is debatable among jurists, or that a

court could resolve the issue differently, or that the question deserves further proceedings.”

McCracken v. Gibson, 268 F.3d 970, 984 (10th Cir. 2001). Under 28 U.S.C. § 2253(c)(3), the district

court must identify which specific issues satisfy the standard. Because Petitioner has not made such

a showing, a certificate of appealability should be denied.

CONCLUSION

It is respectfully recommended that the Petition for Writ of Habeas Corpus be

dismissed and that a certificate of appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file objections to this report and recommendation. Any party opposing the objections shall

have seven (7) days from the date of service of objections to respond thereto. Failure to file timely

objections may constitute a waiver of any appellate rights.

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 /s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: July 31, 2006

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