IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ERIC L. SMITH, 

 CASE NO. 2:18-cv-739 

 Petitioner, Chief Judge Edmund A. Sargus, Jr. 

 Magistrate Judge Chelsey M. Vascura 

 v. 

NEIL TURNER, WARDEN, 

NORTH CENTRAL CORRECTIONAL 

COMPLEX, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this amended Petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s 

Return of Writ, and the exhibits of the parties. For the reasons that follow, the undersigned 

RECOMMENDS that Petitioner’s motion for a stay (ECF Nos. 6, 7) be DENIED, and that this 

action be DISMISSED without prejudice as unexhausted. Alternatively, Petitioner may 

withdraw his unexhausted habeas corpus claim nine by notifying the Court within fifteen (15) 

days of his intent to proceed solely on his remaining exhausted claims. 

Petitioner’s unopposed Motion for Leave to Amend the Habeas Corpus Petition (ECF 

No. 8) is GRANTED. 

Facts and Procedural History 

Petitioner challenges his convictions after a jury trial in the Delaware County Court of 

Common Pleas on charges of aggravated burglary, aggravated robbery, having weapons while 

under disability, and felonious assault, with specifications. On September 16, 2015, the trial 
2 

court imposed an aggregate term of forty years incarceration. The Ohio Fifth District Court of 

Appeals summarized the facts and procedural history of the case as follows: 

{¶ 2} On January 3, 2015, and into the morning of January 4, 2015, two individuals 

broke into the home of David McCourt. They bound him with zip tie handcuffs and 

laid him down in front of his television. These two people took cash, five guns, and 

a Rolex watch. McCourt waited until he was sure that the people who broke into 

his home were gone. He then went to the Powell Police Department and could not 

find anyone there. McCourt is seen on the surveillance tape at the police department 

at around 5:00 a.m. (2T. at 234–235). He leaves and goes to a friend's house in 

Grove City, Ohio. He buys a new cell phone and calls the police. He delayed in 

calling the police because he was taking bets on a 12:30 p.m. game. (2T. at 228). 

The police respond to his home in Delaware County and begin an investigation. 

McCourt could not identify anyone who robbed him on that day. 

{¶ 3} McCourt testified that $33,000.00 and a Rolex watch were among the items 

taken from his home on January 3, 2015. McCourt further testified that one of the 

assailants had a revolver and the other a semi-automatic handgun with a long 

magazine or clip. McCourt described the offenders as one being taller and one 

shorter, that the assailants wore all black/dark clothing, hoods, masks and gloves, 

and stated the offenders from the second incident appeared to be the same as from 

the first (2T. at 188; 190; 3T. at 358; 361). 

{¶ 4} Dennis Waddell testified that in connection with the first incident on January 

3, 2015, he provided Smith with the victim's address. Smith's cousin, Wayne Kelso, 

is seen on the surveillance tape on January 5, 2015, one day after the first incident, 

trying to pawn McCourt's Rolex watch. Waddell testified that it was Smith who 

drove him and Kelso to the pawnshop. (4T. at 562). Smith purchased a Dodge 

Charger for $6,145.00 in cash on January 26, 2015. (4T. at 586). Smith spends 

$12,000.00 over the course of two days after the first incident and leading up to the 

second incident. McCourt testified that the money taken from his house was in 

$100.00 bills. (3T. at 373). $1,000.00 in $100.00 bills was recovered from Smith's 

car. (4T. at 580). 

{¶ 5} Smith was pulled over for a traffic violation on March 16, 2015. The officer 

observed flex ties formed as handcuffs, gloves, and a ski mask in Smith's car. (2T. 

at 257; 263). 

{¶ 6} On March 27, 2015, two individuals again break into Mr. McCourt's home in 

Delaware County, Ohio. This time McCourt is pistol-whipped in his front yard. 

McCourt attempted to shoot his attackers but the gun jammed. McCourt runs to his 

neighbor's home and calls 9–1–1. 

{¶ 7} Smith, Tammy Wright and Dennis Waddell are all caught together moments 

after the second incident, within a mile of the McCourt's home with black ski 
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masks, a Glock handgun with an extended magazine, and zip ties formed as 

handcuffs in a vehicle fitting the description McCourt gave to officers. (3T. at 362; 

390; 412–420; 433–437; 456458). Waddell testified that Smith showed him a black 

revolver on the way to the McCourt's home on March 27, 2015. (4T. at 515). 

{¶ 8} Tammy Wright testified she picked up both Waddell and Smith and drove 

them to McCourt's neighborhood on March 27, 2015. (3T. at 409–415). Wright was 

driving a green Jeep Cherokee. She observed Smith and Waddell get out of a Dodge 

Charger. Both Waddell and Smith were dressed in black from head to toe. (3T. at 

415). 

{¶ 9} Smith and Waddell each called Wright to pick them up after the incident. (3T. 

at 418–419). Smith and Waddell were not at the same location when she picked 

them up. (3T. at 419–420). A .40 caliber Glock with a long magazine was recovered 

from Wright's Jeep Cherokee. (3T. at 442; 452). Waddell admitted that he had a 

Glock handgun with an extend magazine. (4T. at 514). 

{¶ 10} McCourt gave a description of guns used in the first and second robbery. 

That description is similar to the gun that witnesses testified Smith had on him and 

similar to the gun found in the vehicle after the second incident. (2T. at 195–196; 

3T. at 358–359; 1T. at 514–515). 

{¶ 11} Following deliberation, the jury found Smith guilty of all charges and 

specifications in the indictment. 

{¶ 12} The trial court sentenced Smith on count one to eight years in addition to 

the three-year firearm specification. As to count two, Smith was sentenced to five 

years in addition to the three-year gun specification. As to count three, Smith was 

sentenced to a term of three years in prison to be served concurrently with count 

one. As to count five, Smith was sentenced to a term of twelve months in prison. 

This is to be served concurrently with count one. As to count six, Smith was 

sentenced to a term of nine years to be served consecutive to counts one and two as 

well as an additional three-year gun specification. As to count seven, Smith was 

sentenced to a term of six years to be served consecutively to counts one, two, and 

six. He was also sentenced on a firearm specification. 

Assignments of Error 

{¶ 13} Smith raises nine assignments of error, 

{¶ 14} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

HIS REQUEST FOR A CONTINUANCE. 

{¶ 15} “II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO A 

FAIR TRIAL UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE 

FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE OF OHIO 
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BY THE FOURTEENTH AMENDMENT WHEN IT DENIED HIS REQUEST 

FOR A CONTINUANCE. 

{¶ 16} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED 

APPELLANT'S RIGHT TO A FAIR TRIAL UNDER THE FIFTH 

AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE 

TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT WHEN IT 

LIMITED CROSS–EXAMINATION REGARDING GAMBLING OF THE 

PROSECUTING WITNESS. 

{¶ 17} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

ALLOWED TESTIMONY REGARDING BAD ACTS EVIDENCE AGAINST 

THE APPELLANT. 

{¶ 18} “V. THE TRIAL COURT DENIED APPELLANT HIS RIGHT TO DUE 

PROCESS GUARANTEED BY THE FIFTH AMENDMENT MADE 

APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH 

AMENDMENT WHEN IT ALLOWED OTHER ACTS EVIDENCE TO BE 

PRESENTED. 

{¶ 19} “VI. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL GUARANTEED BY THE SIXTH AMENDMENT TO THE 

FEDERAL CONSTITUTION MADE APPLICABLE TO THE STATE OF OHIO 

BY THE FOURTEENTH AMENDMENT. 

{¶ 20} “VII. THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE TO 

CONVICT THE APPELLANT IN VIOLATION OF THE FOURTEENTH 

AMENDMENT AND IN DIRECT VIOLATION OF THE HOLDING OF 

JACKSON V. VIRGINIA. 

{¶ 21} “VIII. THE CONVICTIONS IN THIS MATTER WERE NOT 

SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶ 22} “XI. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO 

CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE 

REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A 

DEFENDANT TO CONSECUTIVE SENTENCES BY FAILING TO FIND 

THAT ANY OF THE THREE FACTORS LISTED IN 2929.14(C)(4)(a)–(c) 

APPLIED.” 

State v. Smith, 76 N.E.3d 551, 558-60 (Ohio App. 5th Dist. 2016). On October 28, 2016, the 

appellate court affirmed the judgment of the trial court. Id. On July 26, 2017, the Ohio Supreme 
5 

Court declined to accept jurisdiction of the appeal. State v. Smith, 150 Ohio St.3d 1408 (Ohio 

2017). 

 On February 28, 2017, Petitioner filed an application to reopen the appeal pursuant to 

Ohio Appellate Rule 26(B). (ECF No. 11, PAGEID # 276.) On March 21, 2017, the appellate 

court denied the Rule 26(B) application for failure to show good cause for the untimely filing. 

(PAGEID # 316.) On June 5, 2017, the appellate court denied Petitioner’s motion for 

reconsideration. (PAGEID # 342.) On June 15, 2017, Petitioner filed a Motion Invoking 

Appellate Court To Revisit Its Jurisdiction By Inherent Power And Vacate And Void Its 

Previous Judgment Affirming The Trial Courts Purported Judgment And Its Entry For Good And 

Sufficient Cause Shown and an Affidavit in support, arguing that the appellate court lacked 

jurisdiction over the appeal because the trial court failed to issue an appropriate final order. 

(PAGEID # 343, 372.) On July 28, 2017, the appellate court denied the motion for lack of 

jurisdiction. (PAGEID # 400.) 

Meanwhile, on August 15, 2016, Petitioner filed a Notice of Pro Se Filings and Self 

Representation as a Matter of Right in the state trial court, invoking his right of self 

representation in regard to the filing of a motion to correct his sentence and for a de novo 

sentencing hearing pursuant to Ohio Criminal Rule 32(C). (PAGEID # 402, 404.) Petitioner 

again argued that the trial court had failed to issue a valid judgment entry of sentence. On 

August 17, 2016, the trial court denied the motion. (PAGEID # 413.) Petitioner apparently did 

not file an appeal. 

On March 21, 2017, through counsel, Petitioner filed a petition to vacate or set aside 

judgment of conviction and sentence in the state trial court pursuant to Ohio Rev. Code § 

2953.21, asserting that he had been denied the effective assistance of counsel based on his 
6 

attorney’s failure to secure a bill of particulars prior to the start of trial, failure to file a notice of 

alibi or present alibi evidence, failure to file a motion to suppress evidence or hire a medical 

expert to refute claims of serious physical harm, and that he was denied a fair trial based on the 

prosecutor’s failure to disclose evidence and misconduct during trial. (PAGEID # 414-433.) On 

April 27, 2017, the trial court denied the petition for post-conviction relief . (PAGEID # 515.) 

On November 28, 2017, the appellate court dismissed the appeal for want of prosecution 

pursuant to Ohio Appellate Rule 18(C), because Petitioner failed to file an appellate brief. (ECF 

No. 11-1, PAGEID # 583.) Petitioner did not file a timely appeal. On March 7, 2018, he filed a 

notice of appeal and motion for a delayed appeal. (PAGEID # 775, 777.) The Ohio Supreme 

Court granted the motion for a delayed appeal. (PAGEID # 785.) However, on August 15, 

2018, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct. 

Prac.R. 7.08(B)(4). (PAGEID # 797.) 

On September 8, 2017, Petitioner filed a pro se motion to correct sentence, arguing that 

the trial court had failed to issue a valid judgment entry of sentence that would qualify as a final 

appealable order (PAGEID # 584), and a motion to correct sentence pursuant to Ohio Criminal 

Rule 36. (PAGEID # 612.) On September 11, 2017, the trial court denied both of those motions. 

(PAGEID # 630, 633.) 

On December 15, 2017, Petitioner filed a motion for leave to file a motion for a new trial. 

(PAGEID # 636.) On February 5, 2018, the trial court denied the motion as untimely. (PAGEID 

# 679.) On that same date, Petitioner filed a motion to supplement his motion for leave to file a 

motion for a new trial. (PAGEID # 683.) The trial court considered the motion as a motion for 

reconsideration, and on February 6, 2018, also denied that motion. (PAGEID # 701.) Petitioner 

filed a timely appeal, asserting that the trial court had denied his right to counsel by failing to 
7 

provide him with an attorney to represent him at the evidentiary hearing on his motion for leave 

to file a motion for new trial and that the trial court had abused its discretion and denied him due 

process by denying his motion. (PAGEID # 712.) Apparently, that action remains pending. 

(See Return of Writ, ECF No. 12, PAGEID # 1782.) 

 On October 2, 2018, Petitioner filed a Motion to Vacate Void Judgment with Affidavit in 

Support. (PAGEID # 798.) On October 29, 2018, the trial court denied the motion. (PAGEID # 

819.) On December 5, 2018, the trial court denied Petitioner’s motion for reconsideration. 

(PAGEID # 837.) Petitioner filed a Notice of Appeal. (PAGEID # 850.) On December 17, 

2018, the appellate court dismissed the appeal as untimely. (PAGEID # 852, 862.) On 

November 30, 2018, Petitioner filed a Motion for the Trial Court to Take Judicial Notice as 

Adjudicative Facts Not Subject to Dispute Pursuant to Evidence Rule 201 in Conjunction with 

Civil Rule 44.1 with Trial Transcripts and DNA Report. (PAGEID # 838.) On December 5, 

2018, the trial court denied the motion. (PAGEID # 849.) On January 9, 2019, the appellate 

court dismissed the appeal as untimely. (PAGEID # 862.) 

 On July 31, 2018, Petitioner filed this Petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. (ECF No. 1.) He asserts that the trial court unconstitutionally denied his request 

for a continuance of trial (claim one); that he was denied a fair trial due to the admission of other 

acts evidence (claim two); that the evidence is constitutionally insufficient to sustain his 

convictions (claim three); that he was denied a fair trial because the trial court improperly limited 

the scope of his cross-examination regarding gambling of the prosecution witness (claim four); 

that he was denied the effective assistance of counsel because his attorney failed to pursue a 

motion to suppress evidence (claim five); and that he was denied a fair trial based on 

prosecutorial misconduct (claim six). Petitioner has amended the Petition to additionally assert 
8 

that he was denied a fair trial based on judicial misconduct and bias (claim seven); his 

convictions violate the Double Jeopardy Clause (claim eight); and that he was denied due 

process because the trial court denied his motion for leave to file a motion for a new trial (claim 

nine). 

 It is the position of the Respondent that Petitioner’s claims are procedurally defaulted or 

otherwise without merit. 

Motion for a Stay 

 Petitioner seeks a stay of proceedings pending resolution of the appeal on the trial court’s 

denial of his motion for a new trial and exhaustion of habeas corpus claim nine. Petitioner also 

indicates that he has an appeal currently pending on the trial court’s denial of his motion to 

vacate void judgment, relating to habeas corpus claims three, seven, and eight. (PAGEID # 34.) 

Respondent has not filed a response to Petitioner’s motions. However, it does not appear from 

the record before this Court that any state court actions currently remain pending regarding 

Petitioner’s claims, with the exception of his appeal on the delayed motion for a new trial, and in 

regard to his allegations in habeas corpus claim nine, in which he asserts that the trial court’s 

denial of his motion for leave to file a motion for a new trial denied him due process. Plainly, 

however, the record does not reflect that a stay of proceedings would be warranted pending 

resolution of that action in the Ohio Court of Appeals. 

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner must 

first exhaust his claims in the state courts before presenting them in federal court. 28 U.S.C. § 

2254(b); see Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). If a habeas petitioner has the 

right under state law to raise a claim by any available procedure, the claim is not exhausted. 28 

U.S.C. § 2254(b), (c). Additionally, a constitutional claim for relief must be presented to the 
9 

state’s highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 

U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A habeas 

petitioner bears the burden of demonstrating that exhaustion of the available state court remedies 

with respect to the claims presented for federal habeas review. Prather v. Rees, 822 F.2d 1418, 

1420 n.3 (6th Cir. 1987). 

A district court has the discretion to stay a “mixed petition,” containing both exhausted 

and unexhausted claims, to permit a petitioner to present his unexhausted claim to the state 

courts, and then to return to federal court for review. Rhines v. Weber, 544 U.S. 269 (2005). 

Nonetheless, stays under these circumstances should be granted sparingly. Id. at 277 

(recognizing that “[s]taying a federal habeas petition frustrates AEDPA’s objective of 

encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings” 

and that it “undermines AEDPA’s goal of streamlining federal habeas proceedings by decreasing 

a petitioner’s incentive to exhaust all his claims in state court prior to filing his federal petition”). 

Stated differently, the Court held that “stay and abeyance should be available only in limited 

circumstances,” and is appropriate only if there is good cause for the Petitioner’s failure to 

exhaust his claims first in state court. Id. at 277. Finally, even if good cause exists, a stay is 

inappropriate where the unexhausted grounds are plainly meritless. Id. Thus, an abuse of 

discretion in denying a stay and dismissing the petition may be found only “if the petitioner had 

good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and 

there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. 

The record does not reflect that Petitioner can meet this standard here. After a hearing, 

the trial court denied Petitioner’s December 2017 motion for leave to file a motion for a new trial 

as untimely because Petitioner had failed to establish that he was unavoidably prevented from 
10 

discovering the new evidence during the 120-day period following the jury’s July 31, 2015 guilty 

verdicts, as required under Ohio Criminal Rule 33(B). (ECF No. 11-1, PAGEID # 679.) 

[The defendant] explained his new-trial claim and presented the testimony of 

Nitoriya Goff. . . . 

[T]he defendant focuses on his “surprise” during his trial about “the explicitness of 

victim David McCourt’s injuries.” He argues that since his trial, he “has been 

relentlessly trying to obtain the funds to hire a medical expert” to challenge the 

evidence that the prosecution presented to the jury at trial. He now has those funds 

and has found that expert, he contends, and he seeks an opportunity to present that 

new expert’s testimony at a retrial. 

I fail to see how the evidence that the defendant wishes to offer can properly be 

described as new. Even if the defendant at his trial was surprised by the testimony 

about his victim’s injuries, the trial was his opportunity to challenge that evidence. 

He could have asked for a recess during the trial and could have requested public 

funds so that he could hire an expert then to challenge the prosecution’s evidence. 

He failed to do so. And certainly he had a full opportunity at the trial to crossexamine the victim and other witnesses about the extent of the victim’s injuries. 

Evidence is not “new” simply because the defendant chose not to present it during 

his trial. . . . 

This is not a case in which the defendant alleges that he has now discovered some 

potentially exculpatory evidence that the prosecution withheld from him during his 

trial. Instead, he simply claims that he would like a new chance to rebut with some 

additional evidence of his own the evidence that he and the jury heard during the 

trial. Yet, with reasonable diligence before or during his trial, he could have 

discovered and could have presented the evidence that he now labels as “new.” 

That kind of evidence cannot rightly be described as evidence that he was 

“unavoidably prevented” from discovering before now. 

And even if he were able to convince me that he was unavoidably prevented from 

discovering the new medical evidence that he now hopes to offer about the victim’s 

injuries, I find that he has waited an unreasonably long time to present his request 

to me. The so-called “unsigned Draft Confidential Work Product --- Expert 

Witness Report” that he offered as Exhibit 1 at the January 22, 2018 evidentiary 

hearing before me on his new-trial request is dated June 28, 2017. With that 

document in hand, the defendant waited another 5 1⁄2 months – until December 15, 

2017 – to file his motion under Criminal Rule 33. That delay in raising his newtrial request is not reasonable. 

*** 
11 

[T]he defendant has not presented clear and convincing proof that he was 

unavoidably prevented from discovering the kind of new evidence that might 

warrant the filing of a new-trial motion 2 1⁄2 years after his trial. His request for 

leave to pursue his untimely Criminal Rule 33(B) motion based on newly 

discovered evidence is denied. 

(ECF No. 11-1, PAGEID # 681-82.) 

 Moreover, Petitioner asserts in habeas corpus claim nine that the trial court 

improperly failed to provide him with an opportunity to present the testimony of a 

medical expert, in view of its denial of his claim of ineffective assistance of counsel as 

barred under Ohio’s doctrine of res judicata. (Doc. 8, PAGEID # 45.) However, this 

claim does not provide a basis for federal habeas corpus relief. “Challenges to the 

discretion of state courts do not show, without more, a ‘violation of the Constitution or 

the laws or treaties of the United States,’ as required by 28 U.S.C. § 2254(a).” Gray v. 

Hudson, No. 1:06CV1308, 2008 WL 1995362, at *20 (N.D. Ohio May 5, 2008) (citing 

Sinistaj v. Burt, 66 F.3d 804, 805 (6th Cir. 1995)). A federal court may review a state 

prisoner’s habeas petition only on the grounds that the challenged confinement is in 

violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). 

A federal court may not issue a writ of habeas corpus “on the basis of a perceived error of 

state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 

738 (6th Cir.1988). A federal habeas court does not function as an additional state 

appellate court reviewing state courts’ decisions on state law or procedure. Allen v.

Morris, 845 F.2d 610, 614 (6th Cir.1988). “‘[F]ederal courts must defer to a state court’s 

interpretation of its own rules of evidence and procedure’” in considering a habeas 

petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). 
12 

Only where the error resulted in the denial of fundamental fairness will habeas relief be 

granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). 

Thus, the record does not indicate that Petitioner has any potentially meritorious 

unexhausted claim, as that term is defined under Rhines, or that he can establish good cause 

for his untimely motion for a new trial. 

For the foregoing reasons, Petitioner’s unopposed motion to amend the Petition (ECF No. 

8) is GRANTED. In addition, it is RECOMMENDED that Petitioner’s motions for a stay 

(ECF Nos. 6, 7) be DENIED and that this action be DISMISSED without prejudice as 

unexhausted. Alternatively, Petitioner may withdraw the unexhausted habeas corpus claim nine 

by notifying the Court within fifteen (15) days of his intent to proceed solely on his remaining 

exhausted claims. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

in part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 
13 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

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

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

IT IS SO ORDERED. 

 /s/ Chelsey M. Vascura_______ 

 CHELSEY M. VASCURA 

 UNITED STATES MAGISTRATE JUDGE