Opinion
2:18-cv-00461-YY
03-24-2021
JOHN JAY MATECKI, III, Petitioner, v. BRIGITTE AMSBERRY, Respondent.
Thomas J. Hester Assistant Federal Public Defender Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent
Thomas J. Hester Assistant Federal Public Defender Attorney for Petitioner
Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
Youlee Yim You, United States Magistrate Judge
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Marion County convictions from 2008. For the reasons that follow, the Second Amended Petition for Writ of Habeas Corpus (#23) should be denied.
BACKGROUND
On March 30, 2007, Petitioner demanded that Catherine Smith, whom he had known for approximately four years, allow him entry into her apartment. When she refused, Petitioner kicked the door open, threw Smith down on the couch, screamed in her ear, smashed food in her hair, and hit her in the face and head. Respondent's Exhibit 119, p. 13-14. The assault lasted approximately 30-45 minutes. Id.
On or about April 28, Petitioner visited Smith again at which time she voluntarily allowed him to enter her apartment. When she later asked him to leave, Petitioner became angry and started screaming at her. He pointed a gun at Smith, struck her in the head with it, refused to let her leave the apartment, and threatened to kill her. Id. at 19-22, 26.
These two events, and Petitioner's subsequent failure to appear, led to a somewhat complicated procedural history. In all, Petitioner was the subject of four different criminal actions in Marion County. In Case #0751205 (“Case #1”), Petitioner was arraigned on May 1, 2007, on seven crimes pursuant to the District Attorney's information: Burglary, Coercion, Unlawful Use of a Weapon, Felon in Possession of a Firearm, Driving While Suspended, and two counts of Harassment. Respondent's Exhibit 106. Shortly thereafter, the Marion County Grand Jury issued an indictment charging Petitioner with Felon in Possession of a Firearm and Driving While Suspended. Respondent's Exhibit 107, pp. 1-2. On May 9, 2007, the prosecutor dismissed the information and its five remaining charges that the Grand Jury had not included in the indictment.
Petitioner pleaded not guilty in Case #1 and the Circuit Court released him pending trial, which was scheduled to begin on August 29, 2007. When Petitioner failed to show up for a pretrial check-in, Marion County issued a warrant for his arrest. Respondent's Exhibit 170, p. 4.
In Case #07C51714 (“Case #2”), the prosecutor filed an information on November 16, 2007 charging Petitioner with one count of Driving While Suspended. Respondent's Exhibit 108.
In Case #07C55520 (“Case #3”), the Marion County Grand Jury indicted Petitioner on January 15, 2008, for Failure to Appear in relation to Case #1. Respondent's Exhibit 109.
On April 23, 2008, the Marion County Grand Jury issued a secret indictment in Case #08C43360 (“Case #4”) charging Petitioner with the seven crimes from the information in Case #1 as well as one additional count of Burglary in the First Degree. Respondent's Exhibit 110. As a result, the State dismissed Case #1.
In the meantime, on February 27, 2008, Petitioner executed plea petitions in which he admitted his guilt to the misdemeanor count of Driving While Suspended from Case #2 and the felony Failure to Appear charge from Case #3. Respondent's Exhibit 112. The parties agreed that sentencing as to those counts would be continued until after Petitioner's upcoming trial in Case #4. Respondent's Exhibit 117, pp. 5-6.
On October 1, 2018, Case #4 proceeded to a bench trial where, with the exception of one count of Burglary in the First Degree, the trial court found Petitioner guilty on all charges.Respondent's Exhibit 119, p. 144. At sentencing, the court found Petitioner had an extensive criminal history justifying multiple upward departure factors, and imposed sentences totaling 200 months in prison. Respondent's Exhibit 120, pp. 12-13.
The trial judge found Petitioner not guilty of Burglary as to the April 28 incident because Smith voluntarily allowed him to enter the apartment. Respondent's Exhibit 119, p. 144.
Petitioner filed a direct appeal, in which his appointed attorney filed a Balfour brief. The Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Matecki, 249 Or.App. 179, 276 P.3d 1126 (2012), rev. denied, 352 Or. 170, 285 P.3d 720 (2012).
Oregon's Balfour procedure provides that counsel need not ethically withdraw when faced with only frivolous issues. Rather, the attorney may file Section A of an appellant's brief containing a statement of the case sufficient to "apprise the appellate court of the jurisdictional basis for the appeal." State v. Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991) . The defendant may then file the Section B segment of the brief containing any assignments of error he wishes. Id. at 452.
Following two additional state court actions not relevant to this proceeding, Petitioner filed for post-conviction relief (“PCR”) in Umatilla County. The PCR court amended his sentence to allow him to accrue earned time credits as to one of his convictions, but otherwise denied relief. Respondent's Exhibits 150, 192. The Oregon Court of Appeals affirmed the lower court's decision without opinion, and the Oregon Supreme Court denied review. Matecki v. Coursey, 259 Or.App. 306, 315 P.3d 447 (2013), rev. denied, 354 Or. 699, 319 P.3d 696 (2014).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on March 15, 2018. With the assistance of appointed counsel, Petitioner filed his Second Amended Petition in which he raises eight grounds for relief:
(1) The prosecutor threatened to re-indict Petitioner on charges to which he had already pleaded guilty in violation of his right to due process of law;
(2) The trial court deprived Petitioner of his right to due process and the right to confront his accusers when it permitted the introduction of double hearsay;
(3) Trial counsel was ineffective for failing to object to testimony by the State's criminalist regarding whether Petitioner's firearm was, indeed, operable;
(4) Trial counsel was also ineffective for failing to: (a) object to joinder or seek severance of certain charges; and (b) seek dismissal of two counts of Harassment and two counts of Burglary in Case #4;
(5) Direct appellate counsel was ineffective when she filed a Balfour brief, thereby failing to appeal the Harassment and Burglary convictions referenced in Ground Four(b);
(6) Petitioner was denied his right to effective assistance of counsel at sentencing when counsel permitted multiple legal errors to occur resulting in an excessive sentence not supported by the trial court's findings;
(7) The prosecutor committed misconduct when she: (a) knowingly introduced false evidence; (b) failed to demonstrate the falsity of that evidence; (c) affirmatively misrepresented the evidence to support her argument for consecutive sentences; and
(8) the cumulative effect of these errors deprived Petitioner of a fair trial in violation of his Sixth and Fourteenth Amendment rights.
As an alternative Ground Three, Petitioner asserts that if counsel was not ineffective, then the admission of the evidence violated his right to due process.
Respondent asks the Court to deny relief on the Second Amended Petition because: (1) Petitioner failed to fairly present Grounds One, Two, Three, and Seven to Oregon's state courts, leaving them procedurally defaulted; (2) the state court decisions denying relief on Grounds Four, Five, and Six were not objectively unreasonable; and (3) Petitioner's Ground Eight claim of cumulative error lacks merit.
DISCUSSION
I. Unargued Claims
Petitioner chooses to provide the Court with argument in support of various claims contained within Grounds One, Four, Five, Six, and Eight of his Second Amended Petition. He does not, however, argue the merits of his remaining claims nor does he address any of Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, the Court has examined them based upon the existing record and determined that they do not entitle him to relief.
II. Exhaustion and Procedural Default
In Ground One, Petitioner asserts that the State breached its plea agreement with him when it threatened to re-indict him on charges to which he had already pleaded guilty. Respondent counters that Petitioner failed to fairly present this due process claim to Oregon's state courts, leaving it ineligible for federal habeas corpus review.
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In this respect, a petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
During Petitioner's direct review, he filed a lengthy and rambling pro se brief in which he raised a variety of issues, often intermixed with each other. Respondent's Exhibit 123. It appears that in a portion of his pro se direct appellate briefing, Petitioner might have attempted to raise the vindictive prosecution claim he argues in this habeas corpus case, but he interspersed references to a breached plea deal among speedy trial, double jeopardy, and jurisdictional claims. Respondent's Exhibit 123, pp. 20-32. In this respect, it is difficult to discern how Petitioner adequately put the Oregon Court of Appeals on notice of the vindictive prosecution claim he argues here as Ground One.
In addition, Petitioner not only failed to comply with Oregon's procedural rules that required him to establish how he preserved Ground One in the trial court as required by ORAP 5.45(4) (a), but he specifically conceded the claim was unpreserved when he stated, “defendant's appeal is not impaired by the fact he did not preserve this issue below” because “subject matter jurisdiction may be raised at any time[.]” Id. at 31. Where Petitioner presented a claim that was largely unrecognizable and unpreserved, he failed to raise the issue in a context in which the Oregon Court of Appeals considered its merits. See Castille, 489 U.S. at 351.
Even assuming Petitioner had clearly and properly presented his Ground One claim to the Oregon Court of Appeals on direct review, the only issue he presented to the Oregon Supreme Court in his Petition for Review was whether his convictions were void because the Marion County Circuit Court failed to provide him with a preliminary hearing to advise him of his rights pursuant to ORS 135.070. Respondent's Exhibit 125, p. 11. His Petition for Review lacked any reference to a due process claim arising from the vindictive prosecution he now describes. He therefore failed to fairly present his due process claim during direct review.
With respect to his PCR case, Petitioner pursued a claim that his trial attorney was ineffective for not moving to dismiss the charges in Case #4 on the basis that the prosecutor filed them in retaliation for Petitioner's decision to reject a plea offer. Respondent's Exhibit 177, p. 12. It appears he attempted to pursue this in his supplemental pro se Appellant's Brief and pro se Petition for Review as well. Respondent's Exhibit 196, pp. ii, 15-16; Respondent's Exhibit 200. However, this was not the due process claim Petitioner now brings as Ground One. Moreover, even if Petitioner had raised the issue as a due process claim during his PCR proceedings, Oregon's state courts would not have considered it because he could have raised the due process issue during his direct review. See Verduzco v. State of Oregon, 357 Or. 553, 565 (2015).
Where Petitioner failed to allow the Oregon Supreme Court an opportunity to pass upon the merits of Ground One during either his direct or PCR review, he failed to fairly present the claim. Because the time for doing so passed long ago, Ground One is procedurally defaulted.
Petitioner summarily asserts that if this Court concludes that his Ground One due process claim is procedurally defaulted, it should excuse the default because trial counsel was ineffective for failing to preserve it. While the Supreme Court has held that constitutionally ineffective assistance of counsel may be cause sufficient to excuse a procedural default, Petitioner cannot rely on such a claim to excuse his default where his ineffective assistance of counsel claim, itself, is not only absent from his Second Amended Petition, but is also procedurally defaulted. See Murray, 477 U.S. at 488-89; see also Respondent's Exhibits 197 & 200 (Petitions for Review omitting any claim of ineffective assistance of counsel for failure to preserve Petitioner's Ground One claim).
III. The Merits
A. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "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). A state court's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
B. Analysis
1. Grounds Four(b) & Five: Re-indictment of Misdemeanors
According to Petitioner, Oregon law provided an automatic mechanism for his trial attorney to seek permanent dismissal of the two misdemeanor Harassment charges the prosecutor initially brought in the information in Case #1. He claims that when the trial court granted the prosecutor's motion to dismiss those charges from Case #1, ORS 135.753(2) barred the State from reprosecuting him for those same crimes in Case #4. As Grounds Four(b) and Five, he faults trial counsel for not moving to dismiss the Harassment charges, and appellate counsel for not pursuing the issue on appeal. He believes that such a motion would not only have been successful as to the Harassment charges, but would have made it more difficult for the State to convict him of Burglary in the First Degree.
ORS 135.753(2) provides that “[a]n order for the dismissal of a charge or action, as provided in ORS 135.703 to 135.709 and 135.745 to 135.757, is a bar to another prosecution for the same crime if the crime is a Class B or C misdemeanor; but it is not a bar if the crime charged is a Class A misdemeanor or a felony.”
The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id. at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. at 696. In proving prejudice with respect to the performance of appellate counsel, a petitioner must demonstrate a reasonable probability that but for appellate counsel's failure, "he would have prevailed on his appeal." Smith v. Robbins, 528 U.S. 259, 285-286 (2000). When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
The PCR court specifically concluded that, under Oregon law, it was proper to re-charge the Harassment counts in Petitioner's case. It reasoned that Oregon's statutes do not bar re-prosecution of dismissed charges where, as here, the dismissal is due to the victim's failure to show up to testify in front of the Grand Jury. Respondent's Exhibit 188, pp. 86-89. This state-court determination regarding an issue of Oregon state law is not subject to review by this Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Because a defense motion to dismiss the Harassment charges would not have been meritorious, trial counsel was under no duty to make such a motion and appellate counsel cannot be faulted for not pursuing the issue during direct review. Consequently, the PCR court's decision to deny relief on this claim did not involve an unreasonable application of clearly established federal law.
2. Ground Four(a): Joinder of March 30 and April 28 Incidents
According to Petitioner, he wished to testify as to the March 30 incident, but not the April 28 incident. He asserts that when the trial court joined these incidents for trial in Case #4, it forced him to make an all-or-nothing decision as to whether to testify. He believes it was incumbent upon trial counsel to move to sever the incidents so as to avoid prejudice to the defense. See ORS 132.560(3) (criminal defendants shall not be substantially prejudiced by joinder).
The PCR judge concluded that the March 30 and April 28 incidents “were properly joined, in my opinion, because the primary crimes there were a violent occurrence with a domestic associate that occurred on March 30th and another alleged occurrence that occurred on April [28th].” Respondent's Exhibit 188, p. 85. The PCR judge viewed these as “same or similar type of transactions.” Id. at 95. For this reason, the PCR judge determined that the trial court would not have separated the incidents. Id. at 95-96. He also concluded that Petitioner failed to demonstrate any prejudice. Id.
As an initial matter, joinder was proper in this case because both incidents involved similar conduct, i.e., domestic assaults Petitioner committed against the same victim. See ORS 132.560(1)(b) (joinder proper if offenses committed by the same person and of similar character). But even if this was not the case, Petitioner cannot demonstrate prejudice. He asserted in his trial memorandum during his PCR proceedings that he suffered prejudice because the joinder prevented him from testifying as to the March 30 incident. Respondent's Exhibit 178, p. 25. However, as the PCR court observed, Petitioner did testify as to the March 30 incident. Respondent's Exhibit 119, pp. 129-30; Respondent's Exhibit 188, p. 95.
During his PCR appeal, Petitioner argued prejudice differently in his pro se brief. He claimed that he felt compelled to testify regarding the April 28th incident, and that during his purportedly compelled testimony, he admitted to possessing a weapon. Respondent's Exhibit 194, p. 6. However, before Petitioner testified, the State offered other evidence that he had possessed a firearm. First, it offered Smith's testimony that Petitioner assaulted her with a firearm. Respondent's Exhibit 119, pp. 19-21. In addition, an eyewitness testified that two teenage boys who attempted to help Smith exclaimed, “He's got a gun, ” and “took off running down the stairs and shot down as quick as they could and kept on running.” Id. at 43. Moreover, a law enforcement officer testified that when he arrested Petitioner on April 28th as he left Smith's apartment complex in his automobile, he found a handgun matching the description Smith provided. Respondent's Exhibit 119, pp. 60-65. Given the cumulative nature of this evidence, Petitioner suffered no prejudice from the joinder of offenses for trial when he, too, testified that he possessed a firearm. Where Petitioner is unable to demonstrate that joinder was improper or that he suffered prejudice, the PCR court's decision was not unreasonable.
3. Ground Six: Upward Departure Sentence
As a portion of Ground Six, Petitioner alleges that trial counsel was ineffective for allowing the trial court to impose an allegedly illegal upward departure sentence. He claims that although counsel objected to the imposition of an upward departure sentence on his Burglary conviction, counsel failed to correct misleading information about Petitioner's criminal record or introduce mitigating evidence at sentencing. He acknowledges that his criminal record contains many convictions, but points out that most of them involve misdemeanors and his few prior felonies did not involve burglaries such that there was no persistent involvement in similar offenses. Had counsel put his criminal history into perspective, Petitioner claims, the trial court would not have made a finding of persistent involvement in similar offenses that led to his upward departure sentence.
Petitioner tangentially asserts that the prosecutor misrepresented his criminal history, but this goes to Ground Seven(c), a claim Petitioner procedurally defaulted when he failed to provide the Oregon Supreme Court with an opportunity to pass upon its merits.
In its notice of intent to rely on enhancement facts during sentencing, the State sought an upward departure sentence not only based on Petitioner's persistent involvement in similar offenses, but also for “threat of violence, ” “lack of remorse, ” “prior sanctions have not deterred him, ” “demonstrated disregard for laws, ” and “incarceration necessary for public safety.” Respondent's Exhibit 173, p. 1. As the following exchange illustrates, the sentencing judge was not receptive to the idea of a lesser sentence given Petitioner's criminal history:
Court: Excluding these crimes, you have 37 prior crimes.
Pet'r: Yes, sir.
Court: Not even including your juvenile record.
Pet'r: Yes, sir.
Court: That's about two a year from being an adult. Including these crimes, you're up to 40.
Pet'r: Yes, sir.
Court: Plus whatever you got in juvenile. Mr. Matecki, there's nothing really redeemable about you. You're a career criminal. You don't need to be punished. You need to be warehoused to protect the public from all this crime. I'm adopting the District Attorney's recommendation to 200 months. Thank you.Respondent's Exhibit 120, pp. 12-13. When defense counsel asked the judge whether he intended to identify a departure factor, the judge responded, “considering the nature of the crimes and 37 prior convictions, there are a few departure reasons in its extreme.” Id. at 13.
On this record, the PCR court concluded that “if defense counsel would have objected . . . the Court would have said, ‘Okay, I'm going to make another finding.' He found all of those other things.” Respondent's Exhibit 188, p. 104. Where the sentencing judge concluded that Petitioner met upward departure factors beyond persistent involvement, and felt strongly that Petitioner deserved a severe sentence, even a successful objection to the persistent involvement factor would not have changed the outcome of the sentencing proceeding. Accordingly, the PCR court's decision to deny relief on this claim was a reasonable one.
Although Petitioner argues that his sentence might have been different if defense counsel had offered Petitioner's work and educational history in mitigation, for the same reasons discussed above this would have had no impact on Petitioner's ultimate sentence. ---------
4. Ground Eight: Cumulative Error
Petitioner asserts that even if, individually, the errors he identifies in this case do not entitle him to relief, the cumulative effect of the errors entitles him to relief. While a series of errors might rise to a constitutional violation even where no single error is of a constitutional dimension, Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004), Petitioner's claims are not sufficiently meritorious to meet the threshold for cumulative error.
5. Unpled Claim Regarding Earned Time
As noted in the Background of this Findings and Recommendation, the PCR court ruled in Petitioner's favor with respect to an issue of earned time sentencing credit. In his Sur-Reply filed at the conclusion of all briefing in this case, Petitioner attempts to raise a new claim. Specifically, he asks the Court to intervene to ensure that the Oregon Department of Corrections recalculates his sentence in accordance with the PCR court's Judgment. Petitioner's Sur-Reply is not the appropriate place to raise new claims for the Court's consideration; therefore, it should not be considered. See Rule 2(c), Rules Governing Section 2254 Proceedings, 28 U.S.C. foll. § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner"); Greene v. Henry, 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) (a court need not consider claims not raised in the petition).
RECOMMENDATION
For the reasons identified above, the Second Amended Petition for Writ of Habeas Corpus (#23) should be denied, the Court should enter a judgment dismissing this case with prejudice, and the Court should decline to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
See Respondent's Exhibit 197.