Opinion
2:23-cv-04657-BHH-MGB
05-15-2024
Tavares Equal Felton, Petitioner, v. Warden Janson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Tavares Equal Felton (“Petitioner”), proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2241. (Dkt. Nos. 1, 7-1.) Currently before the Court is Respondent's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Dkt. No. 11). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion (Dkt. No. 11) be GRANTED.
BACKGROUND
Petitioner is an inmate in the custody of the Federal Bureau of Prisons (“BOP”). He is currently housed at FCI Edgefield, South Carolina. (Dkt. No. 11 at 1.) His projected release date, via First Step Act (“FSA”) Release, is January 12, 2028. (Id.; see also Dkt. No. 11-1 at 1.)
During Petitioner's incarceration, the First Step Act of 2018 became law. Pub. L. No. 115-391, 132 Stat. 5194 (December 21, 2018). The First Step Act requires the BOP to create an incentive system for inmates to complete recidivism reduction programs through, among other things, the award of credits to reduce inmates' sentences. 18 U.S.C. § 3632(d). The law required the system be implemented by January 15, 2022, but during a two-year phase-in of the system that began on January 15, 2020, the BOP could, in its discretion, expand those programs to inmates and award credits under those programs, giving priority to inmates according to their proximity to their release date. 18 U.S.C. § 3621(h).
Petitioner now brings this action alleging that the BOP has failed to properly apply his earned time credits (“ETCs”) for Evidence-Based Recidivism Reduction (“EBRR”) Programming in light of the First Step Act. (Dkt. Nos. 1, 7-1.) More specifically, Petitioner claims that his Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) score is inaccurate, that he is entitled to have additional ETCs applied to his sentence, and that the BOP incorrectly labeled his offense of conviction as a violent crime. (Dkt. Nos. 1, 7-1.)
On December 27, 2023, Respondent filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment, asserting that the instant Petition should be dismissed. (Dkt. No. 11.) On December 28, 2023, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 12.) After Petitioner failed to respond to the motion by the January 29, 2024 deadline, the Court issued an Order directing Petitioner to respond by February 20, 2024, and advising him that his claims would be subject to dismissal if he failed to respond by that date. (Dkt. No. 14.)
On February 1, 2024, Petitioner filed a Motion to Stay, requesting that the Court stay his case and defer its ruling until the United States Supreme Court resolved certain pending cases challenging the Chevron deference doctrine. (Dkt. No. 16.) On February 20, 2024, Petitioner filed a response in opposition to Respondent's Motion to Dismiss or, in the alternative, Motion for Summary Judgment. (Dkt. No. 19.) The Court denied Petitioner's Motion to Stay on March 8, 2024. (Dkt. No. 22.) Out of an abundance of caution, the Court gave Petitioner additional time to supplement his response to Respondent's motion in light of the Court's March 8 ruling. (Dkt. No. 24.) Petitioner filed a supplemental briefing on April 1, 2024. (Dkt. No. 28.) As such, the motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARDS
As matters outside the pleadings have been considered by the Court, Respondent's Motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56....”). Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In determining whether a genuine issue has been raised, this Court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 321 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the Court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
Respondent argues that this Petition should be dismissed because Petitioner's PATTERN score was changed and is now “low,” meaning that Petitioner can apply his ETCs. (Dkt. No. 11 at 4-11.) Respondent contends: “[g]iven that the primary relief [Petitioner] seeks . . . is to have a Low risk level and have his time credits applied, the Petition should be dismissed as moot.” (Id. at 11.)
In response, Petitioner asserts that his Petition is not moot because “although [his] PATTERN score is now Low and his earned FSA Time Credits [] have been applied he is still owed at least ninety (90) more days of FTCs . . . due to the fact that he would have been earning 15 days of FTCs per month . . . if it weren't for him being scored as having a violent offense.” (Dkt. No. 19 at 1.)Petitioner further claims that the BOP's PATTERN scoring system is “flawed” and that some inmates with the same offense of conviction as Petitioner are not considered to have a violent offense for purposes of their PATTERN scores. (Id.) Ultimately, Petitioner asks the Court “to compel the BOP to change his Violent Offense (PATTERN) item to FALSE and to do it retroactively.” (Id. at 3.) Petitioner claims that he will then have “90+ days” of ETCs that he can use towards his transfer to a pre-release residential reentry center (“RRC”) or home confinement (“HC”), “since he has already received the year toward early supervised release.” (Id.)
Petitioner's response also claims that he “brought this petition before this Court not only for his own behalf but for the behalf of others similarly situated. There are thousands of inmates being scored incorrectly for having ‘violent' crimes causing most of them to be unable to apply their earned FTCs.” (Dkt. No. 19 at 1.) However, Petitioner cannot bring this petition on behalf of other inmates. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (explaining the concept of standing and separation of powers); Inmates v. Sheriff Owens, 561 F.2d 560, 562-63 (4th Cir. 1977) (holding one inmate does not have standing to sue on behalf of another inmate); Hummer v. Dalton, 657 F.2d 621, 625-26 (4th Cir. 1981) (stating a prisoner cannot act as a “knight-errant” for others); McPherson v. Mutter, No. 1:23-cv-00057, 2023 WL 4612559, at *2 (S.D. W.Va. May 9, 2023), adopted, 2023 WL 4606965 (S.D. W.Va. July 18, 2023) (noting that petitioner did not having standing to file for habeas relief on behalf of other prisoners where he listed himself as the sole petitioner). As such, the undersigned need not address Petitioner's claims to the extent they relate to other inmates.
For the reasons set forth in greater detail below, Petitioner's contentions lack merit. The undersigned therefore RECOMMENDS that Respondent's Motion (Dkt. No. 11) be GRANTED, and that the Petition be DISMISSED in full.
I. First Step Act
“Federal sentencing law permits federal prison authorities to award prisoners credit against prison time as a reward for good behavior.” Barber v. Thomas, 560 U.S. 474, 476 (2010). “The BOP is vested with the authority by the Attorney General to calculate a federal prisoner's period of incarceration of the sentence imposed. Implicit in this authority is the ability to calculate, and re-calculate, the sentence as changes occur and time is earned and lost, and to correct any inaccurate calculations as they are discovered.” Morgan v. Morgan, No. 5:08-HC-2114-FL, 2010 WL 3239080, at *3 (E.D. N.C. Aug. 16, 2010) (internal citation omitted); see also Newsome v. Williams, No. 3:15-cv-141, 2016 WL 11431790, at *3 (N.D. W.Va. May 26, 2016) (“Following a federal conviction and sentencing, the United States Attorney General, acting through the BOP, is responsible for calculating an inmate's term of confinement.”), adopted, 2016 WL 4153615 (N.D. W.Va. Aug. 5, 2016).
The First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), was enacted on December 21, 2018. Among other things, the First Step Act:
charged the Attorney General with the development and public release of the Risk and Needs Assessment System (the “System”) within 210 days of the enactment
of the statute. 18 U.S.C. § 3632. Following its development and publication, the System is designed to be used to: determine an inmate's recidivism risk; assess the inmate's risk of violent or serious misconduct; determine the appropriate type and amount of evidence-based recidivism reduction (“EBRR”) programming appropriate for each inmate; periodically reassess an inmate's recidivism risk; reassign an inmate to appropriate EBRR programs or productive activities (“PAs”); determine when to provide the inmate with incentives and rewards for successful participation in EBRR and PAs; and determine when the inmate is ready to transfer into prerelease custody or supervised release. 18 U.S.C. § 3632(a). The System provides guidance on the type, amount, and intensity of EBRR programs and PAs to be assigned to each inmate based on the inmate's specific criminogenic needs. 18 U.S.C. § 3632(b). The System is also intended to provide information on the best ways the BOP can tailor programs to the specific criminogenic needs of an inmate so as to effectively lower each inmate's risk of recidivism. 18 U.S.C. § 3632(b). The statute permits an eligible inmate who successfully completes EBRR programming or PAs to earn time credits to be applied toward time in prerelease custody or supervised release. 18 U.S.C. § 3632(d)(4)(A).Hill v. Knight, No. 2:21-cv-00103-SAL-MGB, 2021 WL 5605592, at *3 (D.S.C. Sept. 14, 2021), adopted, 2021 WL 5598954 (D.S.C. Nov. 30, 2021) (quoting Kurti v. White, No. 1:19-cv-2109, 2020 WL 2063871, at *4 (M.D. Pa. Apr. 29, 2020)).
Under the First Step Act, eligible inmates with all recidivism risk scores may earn time credits. See 28 C.F.R. § 523.42 (outlining the earning of First Step Act Time Credits); see also 28 C.F.R. § 523.44(c)(1), (d)(1). However, the amount of time credits an inmate may earn varies according to the inmate's risk level. Indeed, under 18 U.S.C. § 3632(d)(4)(A):
A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as follows:
(i) A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
Although all inmates may earn time credits, only those inmates with “low” and “minimum” risk scores can have the credits applied to prerelease custody or early transfer to supervised release. See 28 C.F.R. § 523.42 (outlining the earning of First Step Act Time Credits); see also 28 C.F.R. § 523.44(c)(1), (d)(1).
Regarding prerelease custody, 28 C.F.R. § 523.44(c) states:
(c) Prerelease custody. The Bureau may apply earned FSA Time Credits toward prerelease custody only when an eligible inmate has, in addition to satisfying the criteria in paragraph (b) of this section:
(1) Maintained a minimum or low recidivism risk through his or her last two risk and needs assessments; or
(2) Had a petition to be transferred to prerelease custody or supervised release approved by the Warden, after the Warden's determination that: (i) The prisoner would not be a danger to society if transferred to prerelease custody or supervised release; (ii) The prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and (iii) The prisoner is unlikely to recidivate.
With respect to early transfer to supervised release, 28 C.F.R. § 523.44(d) explains:
(d) Transfer to supervised release. The Bureau may apply FSA Time Credits toward early transfer to supervised release under 18 U.S.C. 3624(g) only when an eligible inmate has, in addition to satisfying the criteria in paragraphs (b) and (c) of this section:
(1) An eligible inmate has maintained a minimum or low recidivism risk through his or her last risk and needs assessment;
(2) An eligible inmate has a term of supervised release after imprisonment included as part of his or her sentence as imposed by the sentencing court; and
(3) The application of FSA Time Credits would result in transfer to supervised release no earlier than 12 months before the date that transfer to supervised release would otherwise have occurred.
Regardless of eligibility status, all sentenced inmates receive a risk and needs assessment, which indicates their risk of recidivism. See BOP Program Statement 5410.01, available at https://www.bop.gov/mobile/policy/ (search by policy number “5410.01”). PATTERN is the recidivism risk assessment tool. Id. It is part of the BOP's First Step Act approved Risk and Needs Assessment System. Id.
II. Analysis
As noted, Petitioner contends that his Petition is not moot because “although [his] PATTERN score is now Low and his earned FSA Time Credits [] have been applied he is still owed at least ninety (90) more days of FTCs . . . due to the fact that he would have been earning 15 days of FTCs per month . . . if it weren't for him being scored as having a violent offense.” (Dkt. No. 19 at 1.) According to Petitioner, the BOP's PATTERN scoring system is “flawed,” and some inmates with the same offense of conviction as Petitioner are not considered to have a violent offense for purposes of their PATTERN scores. (Id.) The undersigned finds Petitioner's arguments unconvincing.
At the outset, the calculation of Petitioner's risk classification score is a decision entirely within the discretion of the BOP. See 18 U.S.C. §§ 3621, 3624, 3625; United States v. Wilson, 503 U.S. 329, 335 (1992) (explaining that only the Attorney General, acting through the BOP, may administer a federal inmate's sentence, including where an inmate serves his sentence as well as time credit); Hicks v. Heckard, No. 5:23-cv-00581, 2024 WL 833190, at *6 (S.D. W.Va. Feb. 1, 2024) (“[T]he parameters used to determine the PATTERN risk assessment are entirely within the discretion of the BOP and are not reviewable by [a federal district court].”), adopted, 2024 WL 818472 (S.D. W.Va. Feb. 27, 2024). Accordingly, much of the relief Petitioner requests is not within the purview of this Court. (See Dkt. No. 7-1 at 8, requesting that the Court change Petitioner's PATTERN score, require the BOP to update its policies and explain how it determines which offenses are “violent,” and order the BOP to give Petitioner records showing which inmates at FCI Edgefield were convicted of violating § 922(g) but are not scored as “violent” offenders.) Further, judicial review of a BOP decision to deny an inmate early release is precluded by 18 U.S.C. § 3625.
Turning to Petitioner's contention that his § 922(g) conviction should not be considered a “violent offense” for purposes of his PATTERN risk assessment score, this assertion lacks merit. (See generally Dkt. No. 19.) Indeed, the Court of Appeals for the Fourth Circuit has explicitly stated that the BOP's creation of its own definition for a “crime of violence” is within the BOP's authority. See Pelissero v. Thompson, 170 F.3d 442, 447 (4th Cir. 1999); see also Green v. Hudson, No. 23-3115-JWL, 2023 WL 4374013, at *2 (D. Kan. June 29, 2023), aff'd, No. 233141, 2024 WL 960497 (10th Cir. Mar. 6, 2024) (“The BOP has been given discretion to determine a prisoner's risk of recidivism, and its decision to treat petitioner's particular offense in a particular way in its calculation does not run afoul of the governing statutes - which means that petitioner is not entitled to habeas relief on that basis.”). As such, Petitioner has failed to raise a genuine issue of material fact regarding his claims that his § 922(g) conviction should not be considered a “violent offense” for purposes of his PATTERN score, and that he is “owed at least ninety (90) more days of FTCs [because] he would have been earning 15 days of FTCs . . . instead of 10 days . . . if it weren't for him being scored as having a violent offense.” (See generally Dkt. Nos. 7-1, 19.)
Petitioner's Equal Protection claim cannot save his Petition. According to Petitioner, “[t]he PATTERN scoring system is flawed” because “[s]ome inmates with convictions for Felon in Possession are not scored as having a violent offense.” (Dkt. No. 19 at 1.) Petitioner explains:
This appears to be a violation of the Equal Protection Act. If the BOP has a policy stating that inmates convicted of 922(g) will be scored as violent for PATTERN purposes then all inmates should be scored as such. That is not the case. See Exhibits A, B, and C. These inmates who wish to remain anonymous all have
922(g) convictions as can be seen on their J&C or Sentence Monitoring Computation Data sheets. Yet they are not receiving any points toward their PATTERN scores for the Violent Offense (PATTERN) item. To make matters worse, these inmates have multiple charges, not just 922(g). The BOP has refused to divulge how they determine who gets scored as violent and who doesn't. Tavares' replies to his Administrative Remedies all state that it is based on the offense. The Exhibits prove this to be untrue.(Id.)
Essentially, Petitioner contends that he is treated differently from similarly situated inmates because his § 922(g) conviction is treated as a “violent offense” for purposes of his risk assessment, but other inmates' § 922(g) convictions are not considered “violent offenses” on their risk assessments. (Id.) He believes this constitutes disparate treatment which denies him equal protection of the laws guaranteed by the Equal Protection Clause of the Fourteenth Amendment. (Id.) As support for this argument, Petitioner provides his own sentence monitoring computation data and risk assessment sheet, as well as sentence monitoring computation data and risk assessment sheets from other inmates convicted under § 922(g). (See generally Dkt. Nos. 19-2, 19-3, 19-4, 19-7.)
The Fourteenth Amendment states that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. The equal protection clause directs that “all persons similarly circumstanced shall be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). Thus, to establish a valid Equal Protection claim, Petitioner must demonstrate that he was treated differently than “persons similarly circumstanced.” Id; see also Equality in Athletics v. Dep't of Educ., 639 F.3d 91, 108 (4th Cir. 2011) (explaining that a plausible Equal Protection claim requires facts sufficient to show that he or she was treated differently from others who were similarly situated and that the unequal treatment arose from discriminatory animus). Upon review, the undersigned finds that Petitioner cannot make this showing.
The record before the Court reveals that the “similarly circumstanced” inmates Petitioner proffers are not actually similarly situated to Petitioner. (See generally Dkt. Nos. 19-2, 19-3, 194, 19-7.) These inmates were convicted under § 922(g)(1), as Petitioner contends, but were sentenced under § 924(a)(2), which imposes a term of imprisonment of “not more than 10 years.” See 18 U.S.C § 924; (see also Dkt. Nos. 19-2, 19-3, 19-4.) Petitioner, on the other hand, was convicted under § 922(g)(1) and sentenced under § 924(e)(1) and (2), which impose a greater sentence for “a person who violates section 922(g) . . . and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” See 18 U.S.C. § 924; (see also Dkt. No. 19-7.) Accordingly, Petitioner's crime is not equivalent to his alleged comparators; Petitioner's possession of a weapon as a felon with “three previous convictions . . . for a violent felony or a serious drug offense, or both,” is considered more serious than a typical violation of § 922(g)(1), as is evident by the more significant sentence attached to the crime. See 18 U.S.C. § 924(e). Petitioner has asserted no additional facts or evidence that could support his claim that other inmates convicted under § 922(g)(1) have been treated more favorably. See Lawrence v. Wilson, No. 2:18-cv-63, 2018 WL 7078675, at *4 (E.D. Va. Nov. 15, 2018), adopted, 2019 WL 267718 (E.D. Va. Jan. 17, 2019) (denying Equal Protection claim because petitioner failed to demonstrate that he was treated differently from any other inmate convicted under § 922(g) and that disparate treatment was due to intentional or purposeful discrimination). His Equal Protection claim therefore fails.
Even if Petitioner could show that his alleged comparators were, in fact, “similarly circumstanced,” his Equal Protection claim would still fail. Since Petitioner does not allege that he (as a prisoner) is part of a suspect class and does not allege that he was deprived of a fundamental right, the Equal Protection Clause requires only that there is a rational basis-some plausible reason-for treating Petitioner differently from other prisoners. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.”); Moss v. Clark, 886 F.2d 686, 690 (4th Cir. 1989) (“Prisoners are not a suspect class.”) (citation omitted); White v. Warden, Fed. Corr. Inst. - Cumberland, No. CV DKC-22-2371, 2023 WL 4867562, at *10 (D. Md. July 31, 2023) (explaining that petitioner “did not have a liberty interest in the opportunity to earn ETCs”); Smith v. Warden, FCI Beckley, No. 5:23-cv-00360, 2024 WL 832879, at *5 (S.D. W.Va. Feb. 1, 2024) (noting that “numerous federal courts have recently reiterated the fact that there is no protected liberty interest in pre-release custody, such as home confinement or RRC placement”), adopted, 2024 WL 817449 (S.D. W.Va. Feb. 27, 2024); see also Pulte Home Corp. v. Montgomery Cty., Md., 909 F.3d 685, 693 (4th Cir. 2018) (explaining that governmental action “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification”); Doe v. Settle, No. 2:20-cv-190, 2020 WL 5352002, at *3 (E.D. Va. Aug. 17, 2020), aff'd, 24 F.4th 932 (4th Cir. 2022) (“Differential treatment between similarly situated individuals is still permitted if the plaintiff is not a member of a suspect class and the governmental action passes rational basis review.”).
Here, there is certainly a “plausible reason” to consider felons in possession of a firearm who were previously convicted of violent crimes and/or serious drug offenses to be particularly dangerous for purposes of recidivism risk assessments. See, e.g., Goodwin v. Wilson, No. 1:17-cv-269 (AJT/JFA), 2017 WL 2837138, at *2 (E.D. Va. June 30, 2017) (“There can be no doubt there is a link between the potential for violent conduct by persons convicted of possession of a firearm by a felon and the risk to public safety.”). In fact, this treatment aligns with Congress's perspective, as Congress saw fit to impose a heightened sentence for these offenders. See 18 U.S.C. § 924(e). Thus, the BOP's purported decision to penalize a § 922(g)(1) conviction and label it as a “violent offense” for purposes of a recidivism risk assessment where an inmate was previously convicted of other violent crimes and/or was convicted of a serious drug offense survives rational basis review, and Petitioner's Equal Protection claim fails on this basis, as well.
Because Petitioner has failed to set forth a genuine issue of material fact regarding any of his claims, the undersigned RECOMMENDS that Respondent's Motion be GRANTED, and that the Petitioner be DISMISSED in full.
CONCLUSION
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the Court GRANT Respondent's Motion (Dkt. No. 11) and DISMISS this Petition.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).