UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEROME TELLIS,

Petitioner,

CASE NO. 2:09-CV-11530

v. JUDGE NANCY G. EDMUNDS

MAGISTRATE JUDGE PAUL J. KOMIVES

NICK LUDWICK,

Respondent.

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REPORT AND RECOMMENDATION

I. RECOMMENDATION: The Court should deny petitioner’s application for the writ of

habeas corpus.

II. REPORT:

A. Procedural History

1. Petitioner Jerome Tellis is a state prisoner, currently confined at the Mid-Michigan

Correctional Facility in St. Louis, Michigan.

2. On April 27, 2007, petitioner was convicted of carrying a concealed weapon, MICH.

COMP.LAWS § 750.227, pursuant to his guilty plea in the Wayne County Circuit Court. On October

20, 2007, he was sentenced to a term of 3-5 years’ imprisonment.

3. Petitioner filed a delayed application for leave to appeal in the Michigan Court of

Appeals raising the following claims:

I. MR. TELLIS’ PLEA WAS NOT VOLUNTARILY,

UNDERSTANDINGLY, INTELLIGENTLY MADE, AS HE WAS MISADVISED OF THE CONSEQUENCES, WHICH RENDER THE PLEA

ILLUSORY IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTION.
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II. MR. TELLIS’ TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL, AT SENTENCING UNDER THE STATE

AND FEDERAL CONSTITUTION WHEN HE FAILED TO OBJECT TO

THE SCORING OF PRV 1 AND 2.

The court of appeals denied petitioner’s application for leave to appeal in a standard order, “for lack

of merit in the grounds presented.” People v. Tellis, No. 287764 (Mich. Ct. App. Nov. 7, 2008).

4. Petitioner, proceeding pro se, sought leave to appeal these issues to the Michigan

Supreme Court. The Supreme Court denied petitioner’s application for leave to appeal in a standard

order. See People v. Tellis, 483 Mich. 896, 760 N.W.2d 474 (2009).

5. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus

on April 23, 2009. As grounds for the writ of habeas corpus, he raises the two claims that he raised

in the state courts.

6. Respondent filed his answer on October 16, 2009. He contends that petitioner’s

claims are without merit.

B. Factual Background Underlying Petitioner’s Conviction

Petitioner’s conviction arises from a traffic stop, in which he was searched and discovered

to be in possession of a firearm. Following an evidentiary hearing at the conclusion of which

petitioner’s motion to suppress the fruits of the search was denied, petitioner entered a plea of guilty

to the charge of carrying a concealed weapon (CCW). Petitioner was originally charged with CCW,

felon in possession of a firearm, and possession of a firearm during the commission of a felony. In

discussing the charges prior to the plea, the prosecutor noted that the felony-firearm offense was a

second offense, subjecting petitioner to a mandatory consecutive term of five years imprisonment,

and that petitioner had “an extensive criminal record, which would increase his guidelines.” Evid.

Hr’g/Plea Tr., at 33. The prosecutor indicated that if petitioner were convicted after trial, her
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preliminary estimate was that petitioner would “probably do five for the felony firearm and probably

one to five on the other two.” Id. at 34-35. Defense counsel indicated that he thought that

assessment was accurate. See id. at 35. After discussing the matter with counsel, petitioner

executed a plea agreement.

The court read to petitioner the charges against him, and the maximum sentences on each

of the counts. See id. at 37. Under the agreement, the court explained, the prosecution agreed to

dismiss the felon in possession and the felony firearm counts, as well as the habitual offender notice,

in exchange for petitioner’s plea to the CCW charge, with a sentence agreement of 3-5 years. See

id. at 37-38. Petitioner indicated that he understood the agreement, and denied that there had been

any other promises made to him to induce his plea. See id. at 38. The court then explained to

petitioner the rights he was giving up by pleading guilty, and petitioner indicated that he understood

his rights and that he was waiving them by pleading guilty. See id. at 38-39. Petitioner denied that

any threats or promises had been made, and indicated that it was his own decision to plead guilty.

See id. at 39. The prosecutor then questioned petitioner, eliciting a factual basis for the plea. See

id. at 39-40. The court accepted petitioner’s plea as freely and voluntarily entered.

C. Standard of Review

Because petitioner’s application was filed after April 24, 1996, his petition is governed by

the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.

104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).

Amongst other amendments, the AEDPA amended the substantive standards for granting habeas

relief by providing:

(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
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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.

28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “A

state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that contradicts

the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a

result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535

U.S. at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court

to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694.

However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with “clearly established federal law as determined by
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the Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the

Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the

holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court

decision.’ In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing

legal principle or principles set forth by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529

U.S. at 412).

Although “clearly established Federal law as determined by the Supreme Court” is the

benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not

require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements

of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D.

Mich. 2002) (Tarnow, J.).

D. Voluntariness of Plea/Ineffective Assistance at Plea

Petitioner contends that his plea was involuntary because the prosecutor and his trial counsel

grossly exaggerated the penalty he was facing if convicted after trial, thus grossly exaggerating the

benefit of his guilty plea and rendering the bargain illusory. The Court should conclude that

petitioner is not entitled to habeas relief on this claim.
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1. Clearly Established Law

A plea of guilty is valid if it is entered voluntarily and intelligently, as determined under the

totality of the circumstances. See Brady v. United States, 397 U.S. 742, 748-49 (1970); King v.

Dutton, 17 F.3d 151, 153 (6th Cir. 1994). The Constitution requires, for a plea to be valid, that the

defendant be informed of all direct consequences of his plea. See Brady, 397 U.S. at 755; King, 17

F.3d at 153. A solemn declaration of guilt by the defendant carries a presumption of truthfulness.

See Blackledge v. Allison, 431 U.S. 63, 74 (1977); Henderson v. Morgan, 426 U.S. 637, 648 (1976).

“The subsequent presentation of conclusory allegations unsupported by specifics is subject to

summary dismissal, as are contentions that in the face of the record are wholly incredible.”

Blackledge, 431 U.S. at 74. Where the defendant “was fully aware of the likely consequences when

he pleaded guilty[,] it is not unfair to expect him to live with those consequences[.]” Mabry v.

Johnson, 467 U.S. 504, 511 (1984). Thus,

[i]t is well settled that a voluntary and intelligent plea of guilty made by an accused

person, who has been advised by competent counsel, may not be collaterally

attacked. It is also well settled that plea agreements are consistent with the

requirements of voluntariness and intelligence--because each side may obtain

advantages when a guilty plea is exchanged for sentencing concessions, the

agreement is no less voluntary than any other bargained-for exchange.

Id. at 508 (footnotes omitted).

The Sixth Amendment right to counsel and the right to effective assistance of counsel protect

the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish the ineffective assistance of counsel, petitioner must show that: (1) counsel’s errors were

so serious that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment;” and (2) counsel’s deficient performance prejudiced the defense. Id. at 687. These

two components are mixed questions of law and fact. See id. at 698. Further, “[t]here is no reason
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for a court deciding an ineffective assistance claim . . . to address both components of the inquiry

if the defendant makes an insufficient showing on one.” Id. at 697. If “it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed.” Id.

With respect to the performance prong of the Strickland inquiry, a strong presumption exists

that counsel’s behavior lies within the wide range of reasonable professional assistance. See id. at

689; see also O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). “[D]efendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’” Strickland, 466 U.S. at 689 (citation omitted). “[T]he court should recognize that

counsel is strongly presumed to have rendered adequate assistance and made all significant decisions

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

With respect to the prejudice prong, the reviewing court must determine, based on the totality

of the evidence before the factfinder, “whether there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. Where, as

here, a petitioner challenges counsel’s effectiveness with respect to a guilty plea, “in order to satisfy

the ‘prejudice’ requirement, the [petitioner] must show that there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also, O’Hara, 24 F.3d at 828. However, with respect

to the prejudice prong it is not enough for petitioner to merely allege that he would have insisted on

going to trial had counsel properly advised him. As other judges of this Court have explained:

In the guilty plea context the petitioner must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52,

58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Furthermore, this
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determination depends in large part on a prediction of what the outcome of

a trial might have been. Id. at 58-60, 106 S.Ct. 366; Armstead v. Scott, 37

F.3d 202, 206 (5th Cir.1994). In other words, the petitioner must show that,

but for counsel’s errors, he would not have pleaded guilty, because there

would have been at least a reasonable chance he would have been acquitted.

If examination of the totality of the circumstances shows that the petitioner

would in all likelihood have been convicted of the same, or greater, charges

after a trial, he cannot show that the advice to plead guilty prejudiced him.

A petitioner’s conclusory allegation that, but for an alleged attorney act or

omission, he would not have pleaded guilty is not enough to prove such a

claim. Petitioner must show that there is a reasonable probability that the

result of the proceeding would have been different. It is not sufficient to

show that, but for counsel’s alleged errors he would have been convicted

after a trial instead of after entering a guilty plea.

Garrison v. Elo, 156 F. Supp 2d 815, 829 (E.D. Mich. 2001) (O’Meara, J.); see also, Thirkield v.

Pitcher, 199 F. Supp. 2d 637, 655 (E.D. Mich. 2002) (Friedman, J.) (same); Holtgreive v. Curtis,

174 F. Supp. 2d 572, 587 (E.D. Mich. 2001) (Hood, J.) (“If examination of the totality of the

circumstances shows that the petitioner would in all likelihood have been convicted of the same, or

greater, charges after a trial, he cannot show that the advice to plead guilty prejudiced him.”).

2. Analysis

Petitioner does not contend that he was coerced into pleading guilty or that the decision was

not his own, nor could he given that he stated at the plea hearing that he had not been threatened or

coerced into pleading guilty. See Blackledge, 431 U.S. at 74 (“Solemn declarations in open court

carry a strong presumption of verity. The subsequent presentation of conclusory allegations

unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the

record are wholly incredible.”). Likewise, petitioner does not contend, nor could he, that he did not

receive sufficient explanation of various things required to make his plea voluntary. The Supreme

Court cases discussing the validity of guilty pleas under the Due Process Clause establish three

things of which a defendant must be informed before a guilty plea is knowing and voluntary: (1) the
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actual charge against the defendant, see Bousley v. United States, 523 U.S. 614, 618 (1998); (2) the

direct consequences of the plea, see Mabry, 467 U.S. at 509; and (3) the rights that the defendant

is waiving by pleading guilty, see Henderson, 426 U.S. at 645 n.13. The plea transcript clearly

reflects that the trial court adequately informed petitioner of the charges against him, the

consequences of his plea, and the rights he was waiving by pleading no contest.

Rather, petitioner contends that his plea was based on misadvice from the prosecutor and his

defense counsel on the likely sentence if he were convicted after trial, and that the plea bargain was

illusory. This claim is without merit. With respect to counsel’s or the prosecutor’s assessment of

the plea, contrary to petitioner’s argument they did not suggest that he would likely face the

maximum penalty on each of the three counts, subjecting him to a potential 30 year sentence.

Rather, the prosecutor indicated that petitioner would likely face a single term of 1-5 years’

imprisonment on the CCW and felon in possession charges, plus a mandatory consecutive five year

term on the felony-firearm count. Even if petitioner’s ultimate sentence upon conviction after a trial

would have been different, this does not render petitioner’s plea invalid. as the Supreme Court has

explained:

Questions like these cannot be answered with certitude; yet a decision to plead guilty

must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving

trial entails the inherent risk that the good-faith evaluations of a reasonably

competent attorney will turn out to be mistaken either as to the facts or as to what a

court’s judgment might be on given facts.

That a guilty plea must be intelligently made is not a requirement that all

advice offered by the defendant’s lawyer withstand retrospective examination in a

post-conviction hearing.

McMann v. Richardson, 397 U.S. 759, 770 (1970). Thus, counsel’s allegedly erroneous advice

regarding petitioner’s likely sentence does not provide a basis for habeas relief. See Barker v.

United States, 7 F.3d 629, 633 (7th Cir. 1993). Further, a guilty plea is not “compelled and invalid
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under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty

or probability of a lesser penalty rather than face a wider range of possibilities extending from

acquittal to conviction and a higher penalty authorized by law for the crime charged.” Brady v.

United States, 397 U.S. 742, 751 (1970).

Nor can petitioner show that his plea bargain was illusory. Petitioner does not dispute that

he had a prior conviction for felony firearm. Thus, upon conviction of a second felony-firearm

charge, petitioner was subject to a mandatory sentence of five years’ imprisonment, see MICH.

COMP. LAWS § 750.227b(1), which was required by law to be consecutive to any other term of

imprisonment imposed, see id. § 750.227b(2). Thus, if petitioner were convicted after trial on all

three charges, a virtually certainty in light of the fact that the firearm was found on his person, he

faced a bare minimum of five years’ imprisonment, and likely another 1-5 years on top of that. By

pleading guilty, petitioner received a substantial benefit, becoming eligible for parole after three

years and limited to serving no more than the five years which would have been the absolute

minimum had he been convicted at trial. Thus, petitioner received a substantial benefit by pleading

guilty, and his plea was not involuntary for being based on an illusory bargain. Accordingly, the

Court should conclude that petitioner is not entitled to habeas relief on this claim.

E. Ineffective Assistance at Sentencing

Petitioner also contends that trial counsel was ineffective at sentence for failing to object to

court’s scoring of two prior offense variables in the calculation of the sentencing guidelines. The

Court should conclude that petitioner is not entitled to habeas relief on this claim.

Regardless of whether the trial court correctly scored petitioner’s sentencing guidelines, and

therefore regardless of whether counsel should have objected, petitioner cannot show that he was
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prejudiced because he agreed to the precise term of imprisonment to which he was sentenced.

Compare Evid. Hr’g/Plea Tr., at 37-38, with Sentence Tr., at 7. Because petitioner agreed to a

particular sentence as part of his plea agreement, any scoring of the guidelines was irrelevant to

petitioner’s sentence and any deficient performance on the part of counsel in failing to object did

not impact petitioner’s sentence. Cf. United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005)

(alleged Booker error in court scoring sentencing guidelines was irrelevant where defendant agreed

to specific sentence, and thus his sentence arose from the plea itself and not the guidelines); Dorie

v. Phillips, No. 1:07-cv-1195, 2010 WL 1258234, at *7 (W.D. Mich. Mar. 8, 2010) (where petitioner

agreed to applicable guideline range as part of plea agreement, counsel was not ineffective in failing

to object to scoring of the guidelines), magistrate’s report adopted, 2010 WL 1258233 (W.D. Mich.

Mar. 30, 2010). Thus, petitioner is not entitled to habeas relief on this claim. 

F. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 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. See 28 U.S.C. § 2253(c)(1). 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). As the Sixth Circuit has noted, this

language represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S.

880 (1983), and “[t]he AEDPA thus makes no change to the general showing required to obtain a

certificate[.]” Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack

v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a
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“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) (quoting Barefoot, 463 U.S. at 893

n.4)); accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, “[t]he new

Act does, however, require that certificates of appealability, unlike the former certificates of

probable cause, specify which issues are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C.

§ 2253(c)(3)).

Effective December 1, 2009, the newly created 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. The rule tracks § 2253(c)(3)’s requirement that any grant of a

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of

Federal Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not

issue.” FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory

committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either

grant or deny the certificate of appealability at the time of its final adverse order, I include a

recommendation regarding the certificate of appealability issue here.
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2. Analysis

Here, if the Court accepts my recommendation regarding the merits of petitioner’s claims,

the Court should also conclude that petitioner is not entitled to a certificate of appealability. As

explained above, the transcript of the plea hearing shows that petitioner’s plea was knowing and

voluntary, and petitioner received a substantial benefit–the withdrawal of a charge carrying a

mandatory consecutive prison term equal to the maximum petitioner could serve under the plea

agreement–in exchange for his plea. Thus, the Court’s rejection of petitioner’s claims that the plea

was involuntary and based on an illusory agreement is not reasonably debatable. Further, because

petitioner agreed to a specific sentence, rendering the guidelines scoring irrelevant, the resolution

of petitioner’s sentencing related ineffective assistance of counsel claim is not reasonably debatable.

Accordingly, the Court should conclude that petitioner is not entitled to a certificate of appealability.

G. Conclusion

In view of the foregoing, the Court should conclude that the state courts’ resolution of

petitioner’s claims did not result in a decision which was contrary to, or which involved an

unreasonable application of, clearly established federal law. Accordingly, the Court should deny

petitioner’s application for the writ of habeas corpus. If the Court accepts this recommendation, the

Court should also deny petitioner a certificate of appealability.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs.,
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932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 6/11/10

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record and by

electronic means or U.S. Mail on June 11, 2010.

s/Eddrey Butts 

Case Manager