1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

MICHAEL HACKNEY, 

Petitioner, : Case No. 1:17-cv-564 

- vs - District Judge Susan J. Dlott 

Magistrate Judge Michael R. Merz 

Warden, 

 Southeastern Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought pro se by Petitioner Michael Hackney, is before the Court 

for decision upon the Petition (ECF No. 4), the State Court Record (ECF No. 9), the Return of 

Writ (ECF No. 10), and Petitioner’s Reply (ECF No. 15). Petitioner pleads two grounds for relief. 

Ground One: Ineffective Assistance of Counsel 

Supporting Facts: Trial counsel was ineffective for stipulating to 

the weight of the cocaine used against Mr. Hackney when there was 

no test for its purity. Trial counsel made a motion for a Franks

hearing but should have made a motion to suppress based on Mr. 

Hackney illegal seizure without probable cause to arrest. Trial 

counsel provided erroneous legal advice concerning a plea bargain. 

Ground Two: Petitioner’s right to due process was violated when 

the court allowed hearsay testimony to be used against him and 

violated his rights to confront the witness. 

Supporting Facts: On direct appeal to the Court of Appeals, First 

Appellate District of Ohio, the First District agreed with Mr. 

Hackney that the hearsay testimony from the CI violated his rights 

to confront the witnesses against him as guaranteed by the Sixth 

Amendment to the United States Constitution and Article I, Section 

10 of the Ohio Constitution. 
2 

(Petition, ECF No. 4, PageID 39-41.) 

Litigation History 

 A Hamilton County grand jury indicted Hackney on December 31, 2014, on two counts of 

trafficking cocaine, one count of possession of cocaine and one count of having weapons while 

under disability. After denial of Hackney’s motion to suppress, the case proceeded to jury trial 

and he was convicted on all the charged counts. He was sentenced to an aggregate prison term of 

fourteen years which was later reduced to eleven. 

 On appeal in the state court, the First District reversed Hackney’s conviction on the first 

count of trafficking because it found he had been convicted in violation of his rights under the 

Confrontation Clause and without the hearsay testimony of the informant, the State had not proven 

guilt beyond a reasonable doubt. State v. Hackney, 2016-Ohio-4609 (1st Dist. Jun. 29, 2016), 

appellate jurisdiction declined, 2016-Ohio-8348 (Dec. 28, 2016). The convictions for the other 

count of trafficking and for having weapons under disability were upheld and his claims of 

ineffective assistance of trial counsel were overruled. 

 After completion of consideration by the Supreme Court of Ohio, Hackney filed his 

Petition in this Court. The Answer raises no affirmative defenses, but contends this Court should 

defer to the First District’s decision under the AEDPA. 
3 

Analysis 

Ground One: Ineffective Assistance of Trial Counsel 

 In his First Ground for Relief, Petitioner contends his trial attorney provided ineffective 

assistance of counsel by (1) stipulating to the weight of the cocaine used against Mr. Hackney 

when there was no test for its purity, (2) not filing a motion to suppress, and (3) providing 

erroneous legal advice concerning a plea bargain. 

The governing standard for ineffective assistance of trial counsel was adopted by the 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): 

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence has 

two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel was 

not functioning as the "counsel" guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the conviction 

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable. 

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing 

Knowles v. Mirzayance, 556 U.S.111 (2009). 

With respect to the first prong of the Strickland test, the Supreme Court has commanded: 

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 
4 

hindsight, to reconstruct the circumstances of counsel=s challenged 

conduct, and to evaluate the conduct from counsel=s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action "might be 

considered sound trial strategy." 

466 U.S. at 689. 

As to the second prong, the Supreme Court held: 

The defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability 

sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 

313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100 

(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); 

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. § 

2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceedings. 

 Hackney presented an ineffective assistance of trial counsel claim on direct appeal which 

the First District decided as follows (omitting sub-claims not pleaded in habeas corpus): 

V. Ineffective Assistance of Counsel 
5 

[*P35] Finally, in his first assignment of error, Hackney contends 

that he was denied the effective assistance of counsel. He argues that 

his counsel was ineffective for failing to object to hearsay evidence 

and evidence of plea negotiations, stipulating to laboratory reports 

regarding cocaine weight, consenting to unrecorded sidebar 

conferences, failing to file a motion to suppress on appropriate 

grounds, and providing erroneous legal advice concerning a plea 

bargain. This assignment of error is not well taken. 

[*P36] A court will presume that a properly licensed attorney is 

competent, and the defendant bears the burden to show ineffective 

assistance of counsel. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 

524 N.E.2d 476 (1988); State v. Bell, 2015-Ohio-1711, ¶ 53, 34 

N.E.3d 405 (1st Dist.). To sustain a claim for ineffective assistance 

of counsel, the defendant must demonstrate that counsel's 

performance was deficient, and that the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bell at ¶ 25. 

[*P37] To establish that counsel's performance was deficient, the 

defendant must show that counsel's representation fell below an 

objective standard of reasonableness. Strickland at 687-688; State v. 

Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 51. 

Judicial scrutiny of counsel's performance must be highly 

deferential. The defendant must overcome the presumption that, 

under the circumstances, the challenged action might be considered 

sound trial strategy. Strickland at 689; Thomas at ¶ 51. A defendant 

is not deprived of the effective assistance of counsel when counsel 

chooses, for strategic reasons, not to pursue every possible trial 

tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 

(1988); Thomas at ¶ 51. 

[*P38] To establish prejudice, a defendant must show that there is 

a reasonable probability that but for counsel's unprofessional errors, 

the result of the proceeding would have been different. Strickland at 

694; Thomas at ¶ 52. Prejudice from defective representation 

sufficient to justify reversal of a conviction exists only where the 

result of the proceeding was unreliable or fundamentally unfair 

because of counsel's performance. Lockhart v. Fretwell, 506 U.S. 

364, 369-370, 113S.Ct. 838, 122 L.Ed.2d 180 (1993); State v. 

Carter, 72 Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965 

(1995); Thomas at ¶ 52. 

A. Failure to Object to Hearsay [omitted] 
6 

B. Failure to Object to Evidence of Plea Negotiations [omitted]

C. Stipulation to Laboratory Reports 

[*P41] Hackney next argues that his counsel was ineffective for 

stipulating to the laboratory reports regarding the weight of the 

cocaine. He relies on State v. Gonzales, 6th Dist. Wood No. WD13-086, 2015-Ohio-461. In that case, the Sixth Appellate District 

held that in prosecuting cocaine offenses under R.C. 

2925.11(C)(4)(a) through (f), the state must prove that the weight of 

the actual cocaine possessed by the defendant met the statutory 

threshold. Because the state failed to present evidence of the 

cocaine's purity, the court reversed the penalty enhancement. Id. at 

¶ 47. 

[*P42] But that case is not binding authority in this district. See 

State v. Dovangpraseuth, 10th Dist. Franklin No. 05AP-88, 2006-

Ohio-1533, ¶ 36; Stapleton v. Holstein, 131 Ohio App.3d 596, 598, 

723 N.E.2d 164 (4th Dist.1998). In State v. Fuller, 1st Dist. 

Hamilton No. C-960753, 1997 Ohio App. LEXIS 4398 (Sept. 26, 

1997), this court held that "[t]he quantity of the entire mixture, rather 

than the quantity of pure cocaine within the mixture, is used to 

determine the bulk amount." Id. at *6. While the Ohio Supreme 

Court did agree to decide the issue, see State v. Gonzales, 143 Ohio 

St. 3d 1403, 2015-Ohio-2747, 34 N.E.3d 132, and State v. Gonzales, 

143 Ohio St. 3d 1402, 2015-Ohio-2747, 34 N.E.3d 131, it has not 

yet ruled, and Fuller remains the law of this district. 

[*P43] Thus, it would have been futile for counsel to object to the 

report. Further, defense counsel's decision to stipulate to evidence is 

generally considered a tactical decision. Even debatable trial tactics 

and strategies do not constitute ineffective assistance of counsel. 

State v. Chatman, 10th Dist. Franklin No. 08AP-803, 2009-Ohio2504, ¶ 16. 

D. Failure to Object to Unreported Sidebar Conferences [omitted]

E. Failure to File a Motion to Suppress on Appropriate Grounds 

[*P46] Next, Hackney argues that trial counsel filed a motion to 

suppress based on the wrong ground. Counsel filed the motion on 

the basis that the affidavit contained a false statement under Franks 

v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). 

But at the hearing on the motion to suppress, he could not point to 
7 

any statement that was false. Instead, he argued that the affidavit 

was insufficient to show that Hackney was the individual who had 

sold drugs to the confidential informant. The trial court overruled 

the motion. 

 [*P47] Hackney now argues that counsel should have filed a 

motion to suppress based on the illegal stop of his vehicle. He relies 

on Bailey v. United States, [568 U.S. 186], 133 S.Ct. 1031, 185 

L.Ed.2d 19 (2013). In that case, the United States Supreme Court 

held that Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 

L.Ed.2d 340 (1981), which allows for a detention incident to the 

execution of a search warrant, "is limited to the immediate vicinity 

of the premises to be searched" and does not allow for a defendant 

to be detained at a point beyond any reasonable understanding of the 

immediate vicinity of the premises in question. Bailey at 1042. 

"Once an individual has left the immediate vicinity of the premises 

to be searched, * * * detentions must be justified by some other 

rationale." Id. at 1042-1043. 

[*P48] The police offered two rationales for their stop of Hackney's 

car. The first justification falls squarely within the rule set forth in 

Bailey. The officers stated that they had watched Hackney leave the 

premises to be searched and get into his car. They followed his car 

and stopped him some distance away from the premises for purposes 

of officer and bystander safety. 

[*P49] Nevertheless, the police officers also stated that they had 

stopped Hackney's vehicle to arrest him for drug trafficking based 

on the sale to the informant. An arrest without a warrant in a public 

place is valid if the arresting officer had probable cause to make it. 

State v. Timson, 38 Ohio St.2d 122, 126-127, 311 N.E.2d 16 (1974); 

Cincinnati v. Bryant, 1st Dist. Hamilton No. C-090546, 2010-Ohio4474, ¶ 14. As we have previously stated, probable cause is a lesser 

standard than proof beyond a reasonable doubt. George, 45 Ohio 

St.3d at 329, 544 N.E.2d 640; Bremenkamp, 1st Dist. Hamilton Nos. 

C-130819 and C-130820, 2014-Ohio-5097, at ¶ 11; [**22] Smith, 

4th Dist. Highland No. 09CA29, 2010-Ohio-4507, at ¶ 84. 

[*P50] At the time of Hackney's arrest, Bode and the other officers 

had facts and circumstances within their knowledge sufficient to 

warrant a prudent individual to believe that Hackney had committed 

or was committing an offense. Therefore, they had probable cause 

to make the arrest, and it did not violate Hackney's Fourth 

Amendment rights. See State v. Heston, 29 Ohio St.2d 152, 155-156, 

280 N.E.2d 376 (1972); State v. Deters, 128 Ohio App.3d 329, 333, 

714 N.E.2d 972 (1st Dist.1998). 
8 

[*P51] Because the police had an alternate reason to stop Hackney, 

a motion to suppress based on Bailey would ultimately not have 

been successful. Therefore, the failure to file the motion was not 

prejudicial. See State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio4837, ¶ 65, 873 N.E.2d 858; Thomas, 1st Dist. Hamilton No. C120561, 2013-Ohio-5386, at ¶ 53. 

F. Erroneous Plea-Bargain Advice 

[*P52] Finally, Hackney argues that trial counsel provided 

erroneous advice concerning a plea bargain. He relies on Lafler v. 

Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), in 

which the United States Supreme Court held that the Sixth 

Amendment right to counsel applies to the plea-bargaining process. 

Id. at 1384. But in that case, the record showed that the defendant 

had refused to accept the plea bargain based on the advice of 

counsel. He went to trial, was found guilty, and received a much 

more severe sentence than he would have received under the plea 

bargain. Id. at 1386. Therefore, the United States Supreme Court 

reversed the conviction and remanded the matter to the trial court 

with instructions for it to order the state to reoffer the plea 

agreement. Id. at 1391. 

[*P53] In this case, the record shows that the prosecutor put the plea 

offer on the record. The trial court advised Hackney to discuss the 

matter with his counsel, and, after doing so, Hackney rejected the 

plea offer. The record does not show what counsel's advice to 

Hackney was. Counsel very well could have told him to take it, and 

Hackney rejected that advice. Nothing in the record shows that but 

for counsel's advice, Hackney would have accepted the plea deal. 

Consequently, he cannot show ineffective assistance of counsel on 

that basis. 

[*P54] The record shows that generally, Hackney's counsel 

provided him with a diligent defense. Hackney has not demonstrated 

that counsel's performance was deficient or that but for counsel's 

deficient performance, the result of the proceeding relating to 

Counts 2 and 4 would have been different or that the result of the 

proceeding was unreliable or fundamentally unfair. Therefore, he 

has failed to meet his burden to show ineffective assistance of 

counsel. See Strickland, 466 U.S. at 687-689, 104 S.Ct. 2052, 80 

L.Ed.2d 674; Bell, 2014-Ohio-1711, at ¶ 53-55, 34 N.E.3d 405. We, 

therefore, overrule his first assignment of error. 
9 

State v. Hackney, 2016-Ohio-4609.

 Since the First District decided Hackney’s ineffective assistance of trial counsel claims on 

the merits, his burden in habeas is to show that that decision was contrary to or an objectively 

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

of the United States or that it was based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). 

 Hackney does not claim that the First District’s decision was contrary to the relevant 

Supreme Court precedent, Strickland v. Washington, supra. He also does not argue either subclaim one or sub-claim three in his Traverse. Having independently considered sub-claims one 

and three, the Magistrate Judge concludes that the First District’s decision on these claims is an 

objectively reasonable application of Strickland. The stipulation as to weight is a common 

stipulation in trials of this sort. It avoids boring the jury with testimony that will not reasonably 

be contested. As to the allegedly erroneous plea bargain advice, the First District correctly noted 

that the advice did not appear of record. Thus, to have pursued a claim of ineffective assistance of 

trial counsel as to the extra-record matters, Hackney would have had to file a petition for postconviction relief under Ohio Revised Code § 2953.21, which he has not done. 

 Hackney’s argument instead is entirely devoted to sub-claim two, to wit, that he would 

have won a motion to suppress hearing if it had been based on Bailey v. United States, 568 U.S. 

186 (2013). However, the Magistrate Judge concludes the First District’s decision on this subclaim is correct. In Bailey the Supreme Court held that detention and search of persons incident 

to execution of a search warrant is only lawful if those persons are in close geographical proximity 

to the scene being searched. But here, as the First District reasonably found, the stop of Hackney’s 

vehicle was justified on an alternative basis, to wit, that the officers had probable cause to believe 
10 

he had committed a drug trafficking felony. The officers had searched the confidential informant 

for drugs before he went into the building where Hackney lived and he was clean. They had 

provided him with recorded buy money. When he came out, he had crack cocaine and no buy 

money. The officers followed Hackney from that building to the place where he was stopped. 

Although ultimately they failed to prove at trial that Hackney had made the sale, that was because 

of the failure to present to informant for cross-examination. That does not establish that the 

informant’s information at the time of the sale was unreliable. 

 Hackney reminds the Court that there is a preference in the law for arrests made with arrest 

warrants, rather than arrests without (Traverse, ECF No. 15, PageID 561, citing Gerstein v. Pugh,

420 U.S. 103 (1975)). But nothing in Gerstein or its progeny in the Supreme Court holds that a 

warrantless arrest on probable cause precludes a search incident to that arrest, which is what 

happened here. The First District’s conclusion that the officers had probable cause is neither an 

unreasonable determination of the facts nor an objectively unreasonable application of the law. 

Therefore, that court’s conclusion that a motion to suppress based on Bailey would ultimately have 

been unsuccessful is entitled to deference under Strickland. 

 Petitioner’s First Ground for Relief should therefore be dismissed. 

Ground Two: Violation of the Confrontation Clause 

 In his Second Ground for Relief, Petitioner argues that his Confrontation Clause rights 

were violated when the confidential informant’s identifying information was used against him 

regarding his conviction on the second charge of trafficking1 and the weapons under disability 

 

1

 The possession count was merged with the second trafficking count under Ohio Revised Code § 2941.25. 
11 

count. The argument seems to be that the hearsay evidence from the informant, inadmissible under 

the Confrontation Clause, tainted the evidence used for the convictions on the other two counts. 

 The First District concluded admission of hearsay from the informant violated Hackney’s 

Confrontation Clause rights as to the cocaine bought by the informant. Excluding that testimony, 

it found there was insufficient evidence to convict on that count. Hackney claims the First District 

“affirmed the remaining counts without analyzing the effect of the hearsay on the remaining 

counts.” (Traverse, ECF No. 15, PageID 565). The Magistrate Judge disagrees. The First District 

held: 

[*P25] Hackney contends that the error also affected his other 

convictions. We disagree. Those convictions were based on 

evidence stemming from the execution of a valid search warrant. See 

Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060692, 2007-

Ohio-4881, at ¶ 12. While the hearsay was inadmissible at trial, 

hearsay statements adequately supported the application for the 

search warrant, because there was a factual basis for the information 

the informant had relayed, and there was a sufficient basis to 

determine the informant's reliability. See State v. Karr, 44 Ohio St. 

2d 163, 165, 339 N.E.2d 641 (1975); State v. Urdiales, 3d Dist. 

Henry No. 7-15-03, 2015-Ohio-3632, ¶ 18-19, 38 N.E.3d 907; State 

v. Greene, 1st Dist. Hamilton No. C-790524, 1980 Ohio App. 

LEXIS 10685, *3-4 (July 30, 1980). 

[*P26] Further, the police had probable cause to believe that drugs 

would be found at the Loiska Lane address and to arrest Hackney 

after the alleged sale to the informant. Probable cause is a lesser 

standard of proof than that required for a conviction, which is proof 

beyond a reasonable doubt. Probable cause only requires the 

existence of circumstances that warrant suspicion. State v. George, 

45 Ohio St.3d 325, 329, 544 N.E.2d 640 (1989); State v. 

Bremenkamp, 1st Dist. Hamilton Nos. C-130819 and C-130820, 

2014-Ohio-5097, ¶ 11; State v. Smith, 4th Dist. Highland No. 

09CA29, 2010-Ohio-4507, ¶ 84. 

State v. Hackney, 2016-Ohio-4609. Although the State could not ultimately convict Hackney on 

the first count without the inadmissible evidence, it did have probable cause to obtain a search 
12 

warrant for Hackney’s residence. Testimony given in support of probable cause for a search 

warrant is not subject to a Confrontation Clause test. That Clause requires the exclusion of 

testimonial evidence offered at trial which has not been subjected to cross-examination. Crawford 

v. Washington, 541 U.S. 36 (2004). While the confidential informant’s information provided an 

important link in the chain of evidence leading to the search warrant and subsequent seizure of 

drugs and a firearm, that information was not used as testimony to convict on the second trafficking 

count and the weapons charge. To the contrary, the officers could testify directly and be crossexamined about what they found on execution of the warrant. Put another way, the judge’s 

determination that there was sufficient probable cause to authorize a search warrant broke the 

causal chain of connection between the inadmissible hearsay and the seizure by providing an 

independent evaluation of that evidence, one not subject to Confrontation Clause analysis. 

 Hackney suggests the First District “may not have addressed the constitutional issue” 

raised by him about the impact of the inadmissible hearsay on the second count (Traverse, ECF 

No. 15, PageID 566). To the contrary, the First District clearly separated the analysis of the first 

and second counts of trafficking and provided a correct analysis as to the second. So far as the 

record shows, trial counsel did not ask the trial court to distinguish the two counts or to instruct 

the jury to ignore any impact of hearsay from the first count on its verdict as to the second count. 

In fact, the First District found trial counsel did not object to the hearsay at all after his first 

objection. State v. Hackney, supra, at ¶ 24. The First District clearly did decide the issue, however 

much Petitioner might wish their explanation had been fuller. A habeas court reviews decisions 

of state courts, and not the completeness of their explanations of their decisions. Harrington v. 

Richter, 562 U.S. 86 (2011). 
13 

 Hackney’s Traverse provides a lengthy argument as to why the First District’s decision, 

interpreted as making a harmless error analysis, fails on that count. (Traverse, ECF No. 15, PageID 

567-76). But the First District did not engage in any harmless error analysis at all. That is because 

the hearsay evidence objected to was inadmissible for one purpose (conviction of Count One), but 

admissible for a second purpose, explaining the background to the obtaining and execution of the 

search warrant. 

Conclusion 

 The First District’s decision in this case is neither contrary to nor an objectively 

unreasonable application of clearly established federal law as determined in Supreme Court 

precedent. Nor is it based on an unreasonable determination of the facts, given the evidence 

presented in the state courts. It is therefore respectfully recommended that the Petition be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

Circuit that any appeal would be objectively frivolous and therefore should not be permitted to 

proceed in forma pauperis. 

April 2, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 
14 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).