Opinion
CASE NO. 2:07-cv-792, CRIM. NO. 2:05-cr-192.
December 2, 2008
ORDER and REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant motion, Doc. No. 50, respondent's return of writ, Doc. No. 76, petitioner's response, Doc. No. 82, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing, see Doc. No. 82, is DENIED.
Petitioner's response is captioned "Objection to Dismissal of 28 USC § 2255 Petition."
PROCEDURAL HISTORY
On December 14, 2005, petitioner pleaded guilty pursuant to a plea agreement, to possession with intent to distribute more than five grams of cocaine base and carrying a firearm during and in relation to a drug trafficking crime, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 924(c)(1)(A)(i), (ii). See Doc. Nos. 21, 28. On April 27, 2006, the Court sentenced petitioner to 63 months imprisonment plus 87 months imprisonment, such sentences to run consecutively to each other. Doc. No. 37. Petitioner did not appeal.On August 10, 2007, he filed the instant pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He asserts the following claims:
1. The record shows that at the time of the plea, [neither] me nor my counsel nor the Court correctly understood the essential elements of the crime with which I was charged. Count 5 charges me with carry[ing] or brandishing a firearm during and in relation to a drug-trafficking crime, but the Rule 11 hearing only addressed the carry charge and not brandishing. The "Agreed Rule 11 Factual Basis" did not state I brandished a firearm during and [in] relation to a conspiracy to distribute and to possess with the intent to distribute cocaine base.
2. Ineffective counsel.
My lawyer fail[e]d to challenge my indictment. I told him that I am guilty of possession of a firearm and that's what I plan to plea to. He told me, erroneously, that there is no possession statute in federal court. I wanted to appeal but my attorney said there are no grounds to. Plus I have something going on right now.
3. Count 5 sets fo[]rth two separate and distinct crimes in a single count.
I am being charged with two separate crime[s] in a single count
4. The guidelines for crack cocaine ha[ve] been reduced by two levels by the U.S. Sentencing Commission.
Count 4 of my indictment is a crack cocaine offense and I fa[l]l into that cat[e]gory for the two level reduction.
It is the position of the respondent that petitioner's claims are procedurally defaulted or without merit.
CLAIMS ONE AND TWO
Liberally construing petitioner's pleadings, see Martin v. Overtone, 391 F.3d 170, 712 (6th Cir. 2004) ("pleadings of pro se petitioners are held to less stringent standards than those prepared by attorneys") (citations omitted), petitioner appears to assert in claim one that his guilty plea was not knowing, intelligent or voluntary because neither the Court nor his attorney properly advised petitioner of the elements of his conviction on Count 5, which charged him with using and brandishing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). Petitioner also contends that there was an insufficient factual basis for his guilty plea to this charge. In claim two, petitioner asserts that he was denied the effective assistance of counsel because his attorney did not challenge the indictment as fatally defective for failing to allege a nexus with interstate commerce, see Objection to Dismissal of 2255 Petition, Doc. No. 82, advised petitioner he could not plead guilty to possession, rather than brandishing, a firearm and because his attorney advised him that there were no grounds to appeal and refused to file an appeal on petitioner's behalf. Petitioner also contends that the indictment was defective for failing to allege a nexus with interstate commerce and that he was denied the effective assistance of counsel because his attorney failed to challenge the indictment on this basis. See id.
Because a criminal defendant waives numerous constitutional rights when he enters a plea of guilty, a guilty plea must be entered knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). "`The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, the court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976).
A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir. 1988). In order to obtain relief on such a claim, a prisoner challenging the entry of his guilty plea on the basis of counsel ineffectiveness must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
The second, or "prejudice" requirement on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant 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, 474 U.S. at 59; Sparks, 852 F.2d at 884. Petitioner has failed to meet this standard here.
Petitioner stated, at the time of his guilty plea, that he had discussed his guilty plea and the charges against him with counsel and had read the indictment. Transcript, December 14, 2005, at 3-4. Defense counsel had explained the nature of the charges against petitioner as well as possible defenses. Id., at 4. The decision to plead guilty was petitioner's. Id. Petitioner had discussed with his attorney the potential maximum and minimum sentences he faced. Id. He understood the nature and meaning of the charges against him and had told his attorney everything that he knew about the case. Petitioner was satisfied with his attorney's advice and representation. Id., at 8. The Court advised petitioner of the elements of the offenses against him as follows:
COURT: Every criminal offense, Mr. Barber, has certain elements or basic facts that the government must prove by competent evidence beyond a reasonable doubt in order for a jury to find you guilty. In this case the elements for Count 4, the possession with intent to distribute, are as follows:
First, that the defendant possessed with intent to distribute over 5 grams of cocaine base, a Schedule II controlled substance;
Second, that the defendant did so knowingly and intentionally; and
Third, that the acts occurred on or about the date alleged in the indictment in the Southern District of Ohio.Id., at 8-9. Petitioner indicated that he understood. Id., at 9.
COURT: The elements of the firearm charge are as follows:
First, that the defendant did use and brandish a firearm during and in relation to a drug trafficking crime;
Second, that the defendant did so knowingly and intentionally, and
Third, that such acts occurred on or about the dates set forth in the indictment in the Southern District of Ohio.Id. Petitioner indicated that he understood. Id. The Court advised petitioner of the maximum and minimum penalties he faced. Id., at 9-11. Petitioner acknowledged that he had discussed with counsel how the advisory United States Sentencing Guidelines might impact his sentence. Id., at 12. The Court advised petitioner of his right to appeal:
COURT: Do you understand that you and the government have the right to appeal any sentence that I ultimately impose?
DEFENDANT: Yes, sir.Id., at 12. Additionally, the Court thoroughly advised petitioner of all the rights waived by a guilty plea. Id., at 12-13. Petitioner at all times indicated that he understood. The prosecutor recited the terms of petitioner's plea agreement. Petitioner agreed with those terms and indicated that there was no other promise that induced him to plead guilty. No one had forced him to enter his guilty plea. Id., at 16-17. Special Agent Karkoski summarized the facts of the case as follows:
On August 9, 2005, Zecharia Barber met with an ATF confidential informant (CI) at the informant's house in Columbus, Ohio and sold approximately one quarter ounce of cocaine base, commonly referred to as crack cocaine, to the CI.
The Ohio Bureau of Criminal Identification and Investigation's Narcotics Laboratory (BCI) determined this to be 5.69 grams of cocaine base, a Schedule II controlled substance.
Mr. Barber again met with the CI on August 11, 2005 at the CI's residence and again sold a quantity of crack cocaine to the CI. BCI determined this substance to contain 5.93 grams of cocaine base.
On both of these dates, Zecharia Barber did knowingly and intentionally unlawfully distribute more than 5 grams of cocaine base.
On August 16, 2005, Mr. Barber and Reginald Purnell arrived at the residence of this same ATF confidential informant to sell crack cocaine and a firearm to the informant. On this date the informant allowed Mr. Barber and Mr. Purnell into the informant's residence and all three entered the kitchen area. Mr. Barber entered first, followed by the informant and, lastly, Mr. Purnell who produced a semiautomatic firearm from his waistband and positioned it at the back of the informant's head. Mr. Barber and Mr. Purnell immediately removed cash, a wallet and other personal items of the informant's and demanded to know where there was additional money. Mr. Purnell and Mr. Barber did unlawfully take and obtain United States currency to be used to purchase illegal narcotics and a firearm by an individual working as a confidential informant for the ATF against his individual's will by actual and threatened force, violence and fear of injury to this person.
With the firearm now in the center of the informant's back, Mr. Barber and Mr. Purnell ordered the informant upstairs. Mr. Purnell instructed the CI to do as he said or, in Mr. Purnell words, he would cripple the informant for life. Once upstairs, Mr. Barber and Mr. Purnell ordered the informant to lie down on a bed and instructed the informant not to move. The portion of this incident occurring in the kitchen area on this date was recorded on ATF video surveillance equipment.
On this date, Mr. Barber did knowingly and intentionally use and brandish a firearm, a black semi-automatic pistol, during and in relation to a drug trafficking crime. Mr. Barber and Mr. Purnell then exited the residence and returned to their vehicle.
During a short vehicle pursuit conducted by Columbus Division of Police marked units and ATF surveillance units, one of the individuals threw out of the car baggies containing over 5 grams of crack cocaine. After a short foot chase of both defendants, Mr. Barber and Mr. Purnell were arrested and placed in federal custody without further incident.
All of the crack cocaine in this investigation was analyzed and found to be cocaine base, a Schedule II controlled substance.
These violations occurred in the Southern District of Ohio.Id., at 20-21. A little under 20 grams of crack cocaine was involved. Id., at 21. Petitioner admitted the truth of these facts as well as his guilt to the offenses charged. Id. At sentencing, the Court again explicitly advised petitioner of his right to appeal. Petitioner expressly indicated that he did not want a notice of appeal filed on his behalf:
COURT: Mr. Barber, you have the right to appeal this sentence. If you cannot afford the appeal, you have the right to apply for leave to appeal in forma pauperis, which means without prepayment of any cost or expense to you.
If that application is granted, the clerk of court will prepare or file a notice of appeal on your request. Any notice of appeal must be filed within ten days of the time that I enter judgment on your sentence.
Do you wish the Court to direct the clerk's office to file a notice of appeal on your behalf at this time?
***
(Off the record discussion between the defendant and his counsel).
***
DEFENDANT: No sir.Transcript, April 27, 2006, at 26-27.
In an affidavit dated April 4, 2008, Affidavit of David Graeff, Doc. No. 77, defense counsel David Graeff addresses petitioner's allegation that he did not use or brandish a firearm:
In review of th[e] statement of facts, it clearly shows that the co-defendant originally brandished the firearm against the informant . . . and that Mr. Barber actively participated.
. . . Mr. Barber was present and heard those statements of facts.
***Id. Graeff goes on to state:
At the outset of my representation of Mr. Barber . . . I reviewed [the indictment] with Mr. Barber. . . . I would not have filed a motion to challenge the indictment, and would not do so today. . . . With respect to the statement that I told him there was no possession statute in Federal Court, I am quite aware of multiple possession statutes in Federal Court, including the very one that Mr. Barber pled. With respect to the appeal issue in which Mr. Barber states he wanted to appeal, I specifically told Mr. Barber that Judge Marbley asks whether he wanted to appeal or not. At the time of the sentencing, I recommended to Mr. Barber, after the sentence itself, that he say no, because I believed at the time there was nothing to appeal, and have the same opinion today. . . . Mr. Barber and I attended a proffer conference on October 28, 2005. . . . As a result of the conference, Detective Farbacher indicated that he would get back to Mr. Spartis as to the possibility of future assistance, from Mr. Barber.
I represent that at the time of the sentencing, I did not believe there were any grounds for appeal. I have the same opinion today.Id. Graeff met with petitioner multiple times prior to the guilty plea proceedings. Id. He advised petitioner that "the mandatory sentence for brandishing [a firearm] is seven years (84 months) . . . consecutive to the other count dealing with the narcotics." Id.
I distinctly remember reviewing the indictment, the plea agreement, the elements of the offense, and discussing with Mr. Barber at length the fact that his conduct includes possessing, carrying, using, and brandishing the firearm.
Before informing Mr. Barber of the above, I recollect going to the library and researching once again the issue of aiding and abetting under § 924(c).
. . . I explained to Mr. Barber on multiple occasions that his conduct, reflected in the video, constituted the offenses noted in Count 5, including brandishing.
***
[T]his counsel recollects that Mr. Barber asked several times if there was any possibility to "take the gun out". . . . I had several specific conversations with the U.S. Attorney. . . . My notes reflect that Gary Spartis said the seven year brandishing is "non-negotiable". A meeting was set up where Mr. Barber was brought over to personally view the video. . . . Mr. Barber had the opportunity to review the video in detail.
. . . I can represent that I believe Zechariah Barber clearly understood the nature of the charges, the elements, the potential sentence, and with knowledge of many aspects of Federal sentencing and the guidelines. . . . I personally delivered [a copy of the United States Sentencing Guidelines] to Mr. Barber . . . and told him he could keep the book, which he did. He asked this counsel numerous questions with respect to it.
In the presentence investigation report, both the initial and final recommended [sic] that Mr. Barber be sentenced to . . . one hundred ninety four months. In fact . . . Mr. Barber received a total of one hundred fifty months instead. . . .Id.
On November 14, 2005, the government filed a submission of elements and penalties. Doc. No. 22.
Contrary to petitioner's allegations, the record reflects that petitioner was properly advised of the elements of the charges against him as well as the maximum and minimum penalties that he faced. Petitioner's allegations to the contrary are unworthy of credit in view of the transcript of petitioner's guilty plea indicating that the Court reviewed the elements of the offenses, and petitioner's statements that he understood those elements, that he had discussed the charges against him, as well as possible defenses, with counsel, and that he was satisfied with his attorney.
[T]he representations of the defendant, his lawyer, and the prosecutor at [the guilty plea hearing], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. 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. Machibroda, supra, 368 U.S. at 495-496, 82 S.Ct., at 514 (s 2255); Price v. Johnston, supra, at 334 U.S. 266, 286-287, 68 S.Ct. 1049, 1060-1061, 92 L.Ed. 1356 (s 2243).Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Additionally, the record does not reflect that the prosecution would have been unable to prove the charges against petitioner. The indictment charged petitioner in Count 5 with using and brandishing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A), 2. Doc. No. 8. Videotaped evidence apparently depicted petitioner affirmatively aiding and abetting co-defendant Purnell, who had placed a gun against the back of the confidential informant's head, in order to steal money intended to purchase crack cocaine from petitioner and co-defendant Purnell. Contrary to petitioner's allegations, this evidence is sufficient to establish a factual basis for petitioner's guilty plea to this charge regardless of whether it was actually petitioner who brandished the firearm.
[A criminal defendant] can be convicted of using or carrying a firearm, even though he never personally used or carried any weapon during the period charged in the indictment. See Rattigan, 151 F.3d at 557 (defendant may be convicted of aiding and abetting a § 924(c) violation even if the defendant "never had actual possession of a firearm during the course of committing the crime") (citing United States v. Jones, 102 F.3d 804 (6th Cir. 1996)); United States v. Lowery, 60 F.3d 1199 (6th Cir. 1995); Torres v. United States, No. 96-3424, 1997 WL 243422, at *1 (6th Cir. 1997) (noting that such a conviction is no more unusual than similarly convicting a defendant for possession of drugs he never touched); United States v. Giraldo, 80 F.3d 667, 676 (2d Cir. 1996) (holding that if, during the predicate transaction, a firearm was carried by or within defendant A's reach, but not defendant B's, defendant B can be held liable for aiding and abetting provided that defendant B has knowledge of the proposed crime and "performed some affirmative act relating to that firearm"). Although Bailey and Riascos-Suarez narrowed and clarified what actions constitute using or carrying a firearm under § 924(c), those cases did not affect aiding and abetting theories. See United States v. Myers, 102 F.3d 227 (6th Cir. 1996); Grant v. United States, No. 96-1958, 1998 WL 808240, at *2 (6th Cir. 1998) (per curiam) ("courts agree that Bailey did not limit, narrow, or otherwise change the aiding and abetting theory of criminal liability under § 924(c)") (collecting cases). Thus, pursuant to well-established case law in this circuit, [defendant] is criminally liable under § 924(c) as an aider and abettor if the government establishes that he "as the accomplice, associated and participated in the use of the firearm in connection with the underlying drug crime." Rattigan, 151 F.3d at 558; United States v. Morrow, 977 F.2d 222, 231 (6th Cir. 1992) ( en banc) (same). In Rattigan, we expanded on the government's burden in establishing aider and abettor liability under § 2. Specifically, we concluded that
[t]he government must show that the defendant was a participant rather than merely a knowing spectator, that his presence at the scene of the crime was not surplusage, and that the crime would not have transpired without him. This can be satisfied if the accomplice knows that the principal is armed and acts with the intent to assist or influence the commission of the underlying predicate crime.
Rattigan, 151 F.3d at 558 (internal citation omitted).Wright v. United States, 182 F.3d 458, 463-65 (6th Cir. 1999). In any event, unlike Rule 11 of the Federal Rules of Criminal Procedure, the United States Constitution does not require the development of a factual basis for a guilty plea, and the lack of such development will not provide a basis for federal habeas corpus relief. Meyers v. Gillis, 93 F.3d 1147, 1151 (3rd Cir. 1996); see also Dunn v. Bell, 2006 WL 3206125 (E.D. Michigan November 6, 2006) ("There is no federal constitutional requirement that a factual basis be established to support a guilty plea"), citing United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995).
Pursuant to the terms of petitioner's negotiated guilty plea, the prosecution dismissed counts one through three of the indictment, thereby substantially reducing petitioner's potential exposure. The government further agreed not to pursue additional charges against petitioner. Plea Agreement, Doc. No. 21. Petitioner obtained a two point reduction for his acceptance of responsibility and a one point reduction for timely notifying authorities of his intention to plead guilty. See PreSentence Investigation Report, at ¶¶ 45, 46. As discussed, although petitioner's recommended guideline sentence was an aggregate term of 194 months incarceration, the Court sentenced petitioner below that term, to 150 months incarceration. Doc. No. 45. Additionally, the government agreed to file a motion to reduce petitioner's sentence if he provided substantial assistance. Plea Agreement, Doc. No. 21. Under these circumstances, it is unlikely that any competent defense counsel would have advised against accepting the plea agreement.
In short, petitioner has failed to establish that, but for ineffective assistance of counsel, he would not have pleaded guilty and would have proceeded to trial. See Hill v. Lockhart, supra. Further, petitioner has failed to establish that counsel performed in a constitutionally unreasonable manner by advising him that there were no meritorious grounds for appeal. Petitioner has not referred to, and this Court is unable to discern from the record, any arguably meritorious issues for appeal. Moreover, the Court explicitly advised petitioner of his right to appeal, but petitioner indicated that he did not want a notice of appeal filed on his behalf.
Finally, petitioner's contention that the indictment was fatally defective for failing to allege a nexus with interstate commerce, or that he was denied the effective assistance of counsel because his attorney failed to challenge the indictment on this basis, plainly lacks merit.
[I]nterstate commerce is not an element of carrying a firearm during a drug trafficking offense. United States v. Smith, 320 F.3d 647, 655 (6th Cir. 2003) ("Unlike Section 922(g)(1), however, a conviction under 18 U.S.C. § 924(c)(1) does not require proof of an interstate nexus element."), cert. denied, 538 U.S. 1023; Warwick v. United States, 2005 WL 2740869 (E.D.Tenn. Oct. 24, 2005) ("Interstate commerce is not an element of carrying a firearm during a drug trafficking offense . . .").Murray v. United States, 2007 WL 1695377 (E.D. Tenn. June 7, 2007).
To establish the elements of possession with intent to distribute illegal drugs under 21 U.S.C. § 841(a)(1) the government must prove: "(1) the defendant knowingly: (2) possessed a controlled substance; (3) with intent to distribute." United States v. Salgado, 250 F.3d 438, 447 (6th Cir.), cert denied, 534 U.S. 916 and 534 U.S. 936 (2001).
[The] assertion that an effect on interstate commerce is an essential element under 21 U.S.C. § 841(a)(1) has been soundly rejected by the federal courts.Smith v. United States, 2007 WL 160996 (E.D. Tenn. January 16, 2007). Therefore, petitioner has likewise failed to establish the ineffective assistance of counsel based upon his attorney's failure to challenge the indictment on this basis.
Claims one and two are without merit.
CLAIM THREE
In claim three, petitioner asserts that the indictment improperly charged him with possessing as well as brandishing a firearm in Count 5. See Petition. This claim is waived by virtue of his guilty plea.
A valid guilty plea is generally regarded as a waiver of all nonjurisdictional defects or errors. Kowalak v. United States, 645 F.2d 534 (6th Cir. 1981). This rule has been applied to cases where a federal prisoner is challenging the composition of the indicting grand jury.McZeal v. United States, 762 F.2d 1009 (6th Cir. 1985) (unpublished), citing Tollett v. Henderson, 411 U.S. 258 (1973). Petitioner has also waived this claim by failing to raise the issue on direct appeal. United States v. Frady, 456 U.S. 152, 165-68 (1982). To the extent that petitioner asserts the ineffective assistance of counsel as cause for his procedural default, this claim plainly lacks merit.
In United States v. Combs, 369 F.3d 925, 930-31 (6th Cir. 2004), the United States Court of Appeals for the Sixth Circuit held that 18 U.S.C. § 924(c) criminalizes two distinct offenses:
(1) using or carrying a firearm during and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug trafficking crime.Id. The Court of Appeals in Combs went on to reverse the defendant's conviction where the indictment improperly charged the defendant with "one element from each of the two distinct 924(c) offenses," i.e., "`possess[ing] a firearm during and in relation to' a drug trafficking crime." Id., at 934. Such are not the circumstances here. In this case, the indictment in Count 5 properly charged petitioner with knowingly carrying or brandishing a firearm on August 16, 2005, during and in relation to a drug trafficking crime. See Doc. No. 8. This charge does not improperly combine the two distinct offenses of § 924(c), but instead appropriately tracks the "using or carrying" prong of 924(c), not the "possessing . . . in furtherance" prong. See id. Therefore, defense counsel did not perform in a constitutionally unreasonable manner in failing to challenge the indictment on this basis.
Claim three is without merit.
CLAIM FOUR
In claim four, petitioner asserts that his sentence should be reduced by two levels based on amendments to the United States Sentencing Guidelines for the calculation of recommended sentencing guidelines on offenses involving crack cocaine, effective November 1, 2007, and applied retroactively on December 11, 2007, effective March 3, 2008.
Section 2255 authorizes relief because the sentence was imposed in violation of the Constitution or laws of the United States, or because the court lacked jurisdiction to impose the sentence, or because the sentence exceeded the maximum authorized by law, or is otherwise subject to collateral attack. The statute offers no relief on a request for reduction of sentence as a result of the Sentencing Commission's modification of the guidelines dealing with crack cocaine. Doc. No. 83. Therefore, this claim is not appropriately considered in these proceedings.
In any event, on September 30, 2008, the Court granted petitioner's request for a reduction of sentence pursuant to 18 U.S.C. § 3582.
The Magistrate Judge therefore RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED.
If any party objects to this Report and Recommendation, that party may, within ten (10) 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 matt er 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 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).