Opinion
5:17-CR-210-D-1 5:20-CV-428-D
10-04-2022
STANLEY JAMAR RAGIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter comes before the court on referral for evidentiary hearing and memorandum and recommendation on Petitioner Stanley Jamar Ragin's claim, pursuant to 28 U.S.C. § 2255, that his counsel did not comply with his express instruction to file an appeal and to assess Ragin's credibility at the hearing. [DE-121] at 5-6, 13; 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P 59(b)(1). An evidentiary hearing was held on August 24, 2022. [DE-133, -134]. For the reasons stated below, it is recommended that Ragin's claim be dismissed.
I. PROCEDURAL HISTORY
On July 6, 2017, Ragin was indicted by the Grand Jury on two counts of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). [DE-1]. Ragin was initially represented by court-appointed counsel, but later retained Nardine Guirguis, who entered an appearance on May 1, 2018, [DE-30]. On May 2, 2018, Ragin was charged in a superseding indictment with conspiracy to distribute and possess with intent to distribute one hundred (100) grams or more of heroin, in violation of 21 U.S.C. § 846, and two counts of distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). [DE-34]. On January 7, 2019, Ragin pleaded guilty pursuant to a written plea agreement to the conspiracy count and to one count of distribution of a quantity of heroin. [DE-59, -60]. On August 8, 2019, the court sentenced Ragin to 96 months' imprisonment. [DE-79]. Ragin did not appeal his conviction or sentence.
On August 4, 2020, Ragin moved pro se to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [DE-85]. Ragin alleged that counsel was constitutionally ineffective by failing to file a timely notice of appeal when instructed. Id. at 4. On September 24, 2021, the Government filed a motion for summary judgment, [DE-95], and Ragin opposed the motion, [DE-115]. The court concluded a genuine issue of material fact existed concerning the substance of Ragin's consultations with counsel about filing a notice of appeal and referred the matter to the undersigned to conduct an evidentiary hearing, to assess Ragin's credibility, and to issue a memorandum and recommendation. [DE-121] at 5-6. The court appointed counsel to represent Ragin at the evidentiary hearing. [DE-125].
II. HEARING TESTIMONY
At the August 24, 2022 evidentiary hearing, the court heard testimony from Ragin and Guirguis.
A. Ragin's Testimony
Ragin testified that he wanted to file an appeal because he was dissatisfied with a two-point enhancement he received at sentencing. Hr'g Tr. [DE-134] at 2:19-3:3. Ragin stated that prior to his arraignment he met with Guirguis in the jail. Id. at 4:5-6. He explained to her that he did not want to plead guilty to the conspiracy count because the superseding indictment charged that the conspiracy started in 2011, and he was in a North Carolina prison in 2011 and was not released until November 2014. Id. at 3:20-4:22. Ragin claims that Guirguis told him that it did not matter because he had a stipulated plea for 70-87 months, so he decided to take the plea. Id. at 4:1-4.
At Ragin's arraignment, Guirguis told him that the Government would move the timeframe of the conspiracy from 2011 to 2016, which made a difference to Ragin because he was worried about receiving a two-point enhancement for being in prison at the time of the conspiracy offense. Id. at 5:20-6:14. Ragin had complained about the conspiracy charge to Guirguis many times and was prepared to go to trial on that charge, but he reluctantly took the plea after being told the timeframe for the conspiracy would change from 2011 to 2016. Id. at 6:15-7:5.
Prior to sentencing, Guirguis met with Ragin over video to review his presentence report (“PSR”), but the monitor went black, he did not get a chance to see the PSR for himself, and he never received a physical copy. Id. at 8:7-17. Guirguis told him there was an enhancement for obstruction of justice and a two-point enhancement for being in prison during the time of the conspiracy charge. Id. at 8:18-20. At sentencing, Guirguis objected to both enhancements, and the court sustained the objection to the obstruction enhancement. Id. at 11:5-12. With respect to the enhancement related to the conspiracy charge, Ragin recalled Judge Dever asking Guirguis if Ragin had pleaded guilty to the conspiracy, and Guirguis did not pursue the objection further. Id. at 9:14-19. Ragin was distraught because he thought he would be getting 70-87 months but his guideline range increased to 100-125 months with the enhancement, and he received 96 months. Id. at 9:20-10:5.
Ragin recalled Judge Dever advising him of his right to appeal his sentence, and after sentencing, Guirguis came to the holding cell to speak with Ragin. Id. at 11:20-12:4. Guirguis initially said that she knew he wanted to appeal and explained how his appeal waiver could affect an appeal. Id. at 12:5-13. Then, as he was thinking about an appeal, he told Guirguis he would inform her of his decision later because he was distraught by his sentence and had a lot to think about. Id. at 12:13-17. Guirguis also presented him with a document to sign that he believed was a plea waiver. Id. at 12:18-25. Ragin stated that he was still “undecisive” and “wrote a few things” on the form. Id. at 13:19-22. He first wrote that he did want to file an appeal, then he wrote he was thinking about it and would inform Guirguis later of his decision, and finally, after Guirguis talked to him about why she thought he should not appeal, he wrote that there was no need to appeal. Id. at 13:22-14:17. Guirguis then said that since Ragin seemed to still be confused, he could call or write her within the fourteen-day appeal time to let her know what he wanted to do. Id. at 14:17-22. Ragin explained that Guirguis could be persuasive and she obviously did not want him to appeal, so Ragin did not want to tell her to her face-to-face that he wanted to appeal. Id. at 15:2-14.
About a week after his sentencing hearing, Ragin placed a call through a third party to Guirguis's office and spoke to a paralegal whom he directed to tell Guirguis that he wanted to appeal. Id. at 15:23-16:22. The paralegal had been present when Guirguis met with Ragin postsentencing and, when Ragin called and said he wanted to appeal, the paralegal responded that she thought he did not want to appeal, so he told her that he did want to appeal. Id. at 16:23-18:16. Approximately sixty days after he was sentenced, Ragin was transferred to FCC Butner, and he was concerned because he had not received anything about his appeal, so he filed his 2255 petition claiming Guirguis was ineffective for failing to file an appeal as directed. Id. at 20:5-21.
Ragin also detailed other ways in which he believed Guirguis was ineffective, but the court determined they were outside the scope of the claim raised in the § 2255 petition and the referral order.
On cross-examination, Ragin testified that he had pleaded guilty to other crimes, perhaps as many as three times. Id. at 28:15-19. Ragin agreed that in the instant case he signed a plea agreement and that the court explained that he was pleading guilty, walked him through the charges and potential sentences, and explained his rights at his plea hearing. Id. at 29:12-30:18. Ragin also acknowledged that Guirguis successfully objected to the obstruction enhancement, and Ragin could have been sentenced to more time than he received. Id. at 30:23-31:5. Ragin believed from Guirguis that his sentencing exposure was 70 months, but he did not recall whether Judge Dever ever mentioned 70 months as a potential sentence. Id. at 31:6-17. Ragin conceded that he wrote “no need to appeal” on the form provided by Guirguis post-sentencing, but claimed that Guirguis told him to write it. Id. at 32:6-20. He explained that he told her he was thinking about an appeal and wrote that he would inform her of his decision, but after further conversation he determined he would not appeal and wrote “no need to appeal.” Id. at 32:21-33:14. However, Ragin said he was still conflicted about filing an appeal, and Guirguis told him he still had fourteen days and to call or write her if he changed his mind. Id. at 34:1-17. Ragin also clarified that during his case he worked with a paralegal at Guirguis's firm named Cynthia but that Guirguis let her go around the time his PSR came out, and he did not remember the name of the new paralegal to whom he spoke when he called Guirguis's office post-sentencing about filing an appeal. Id. at 35:2-13.
B. Guirguis's Testimony
Guirguis has been a lawyer since 2006 and primarily practices in the areas of federal criminal and immigration law. Id. at 37:10-17. As a general matter, in preparing to represent a client, Guirguis gets to know the client very well through a number of visits, reviews the discovery, considers whether pretrial motions are warranted, and analyzes the case by way of how much evidence there is and the likelihood of a guilty verdict if the case goes to trial. Id. at 38:2-15. With respect to Ragin's case in particular, Guirguis recalled that the Government had proceeded on a § 851 enhancement that was withdrawn by the prosecutor, and plea negotiations started around that time. Id. at 38:25-39:9. Ragin was interested in pursuing a guilty plea, and Guirguis recalled Ragin discussing other individuals at the jail who had gone to trial with negative outcomes. Id. at 39:10-18. Guirguis did not believe Ragin would have fared well had he gone to trial. Id. at 40:2- 40:5.
At the sentencing phase of the case, Guirguis identified two issues for objection. Id. at 40:10-11. The first was related to an obstruction of justice enhancement, and the court sustained that objection. Id. at 40:11-25. The second had to do with a two-point enhancement based on a co-conspirator's statement that he sold something, presumably drugs, on behalf of Ragin in 2011, and that objection was overruled. Id. at 41:1-9. Guirguis denied having a conversation with Ragin regarding moving the dates of the conspiracy, denied telling Ragin that there was a stipulated plea for 70-87 months, and denied that the video screen went dark while she was reviewing the PRS with Ragin. Id. at 41:13-42:2.
After sentencing, consistent with Guirguis's usual practice, she met with Ragin to discuss his right to appeal. Id. at 42:12-23. Guirguis was accompanied by her federal paralegal and a second paralegal she employed who belonged to a community group that would support Ragin's future reentry into society. Id. at 43:5-44:15. Guirguis recalled that initially Ragin was thinking about appealing so she discussed with him the fourteen-day deadline as well as his appeal waiver, and after some discussion he said he did not want to appeal because he had an appeal waiver and so it would not make sense. Id. at 43:5-8, 44:16-18. Guirguis made certain Ragin understood that, regardless of the appeal waiver, he still had a right to appeal, and Ragin responded that it was not necessary, and he crossed out his writing on the form indicating that he was thinking about an appeal. Id. at 44:19-25. When Guirguis stood up, she noticed through the mesh screen that Ragin had marked on the form that he did wish to appeal but he was verbally indicating that he did not. Id. at 45:1-5. Guirguis told him if he did not wish to appeal he needed to cross out the checkmark, but Ragin was confused about where on the form Guirguis was referencing. Id. at 45:6-15. After a few back-and-forth exchanges, she told him to just write on the bottom what he wished to do, and he proceeded to indicate in writing that there was no need to appeal, which Guirguis verbally confirmed. Id. at 45:17-46:1.
Ragin did not contact Guirguis during the fourteen-day appeal window, and no one in Guirguis's office communicated to her that they had spoken with Ragin regarding filing an appeal or any other matter during that timeframe. Id. at 46:23-47:3. Guirguis maintains an “action log” for every case where she and her staff document what transpires with the client, and she explained that something that monumental would have been highlighted in bold print on the action log, and it would have been communicated in an email that the notice of appeal needed to be filed. Id. at 47:6-12. Guirguis explained that she keeps the activity log as a matter of common practice to ensure they proceed in a manner precisely consistent not just with the law, but within the scope of their ability with the Rules of Professional Conduct in regard to what the clients want and what is in the best interest of the clients, and she utilizes the appeal waiver form to ensure what transpires is documented and to uplift the truth. Id. at 47:18-48:4. Additionally, Guirguis's federal paralegal would have been able to file the notice of appeal right away because she is trained to do so, they have a template for that purpose, and they have filed many appeals on behalf of other clients. Id. at 47:12-17.
Guirguis wrote a letter to Ragin while he was at Butner regarding his faith because she cares about her clients, but this was prior to Ragin filing the 2255 petition. Id. at 48:5-49:3. After Ragin filed his 2255 petition, he contacted Guirguis's office and told a staff member that if Guirguis would file a compassionate release motion for Ragin, then he would withdraw the 2255 petition. Id. at 46:5-13. Guirguis instructed her staff that she would not proceed in that manner, she did not return Ragin's call, and she did not engage in additional discussions with Ragin thereafter. Id. at 46:13-16.
On cross-examination, Guirguis acknowledged having conversations with Ragin about the conspiracy and alleged co-conspirators not being truthful, and some of those statements had to do with when Ragin joined the conspiracy. Id. at 49:15-23. Guirguis did not recall whether she made a written objection to the two-point enhancement for committing the current offense while on a criminal justice sentence, but she knew it was discussed at sentencing and that Judge Dever entertained and overruled the argument. Id. at 49:24-50:20. Guirguis believed Ragin was happy with the 96-month sentence because he was “flabbergasted” they won on the obstruction objection, and Ragin was looking at a much higher sentence than 96 months. Id. at 50:21-51:6. As a matter of practice, Guirguis conducts an analysis of each client's potential sentencing exposure, and with respect to Ragin, her notes indicated his exposure could be more than 120 months. Id. at 51:7-22.
At the post-sentencing meeting between Guirguis and Ragin, she could not recall how much time passed between Ragin writing that he was thinking about appealing and then crossing that out and writing no need to appeal. Id. at 52:12-18. Guirguis did not believe it was anything she said that caused him to change his mind but rather she believed he was actually thinking about it then ultimately came to the conclusion that he did not want to appeal. Id. at 52:19-23. Guirguis also disputed that after Ragin wrote “no need to appeal,” she told him he could still change his mind and appeal if he wanted to, because she believed he had very clearly indicated he did not want to appeal. Id. at 53:21-25. However, she did believe she may have asked him a couple of times, “Are you sure?” and he said yes. Id. at 53:25-54:3. Guirguis denied that anyone ever told her Ragin called her office and said he wanted to appeal, and she confirmed that her office records contained no such information. Id. at 54:4-10.
III. ANALYSIS
The Sixth Amendment guarantees criminal defendants effective assistance of counsel. United States v. Murillo, 927 F.3d 808, 815 (4th Cir. 2019) (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's representation was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish deficient performance, the petitioner must overcome a “‘strong presumption' that counsel's strategy and tactics fall ‘within the wide range of reasonable professional assistance.'” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to the prejudice component, a petitioner must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697 (explaining “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies” or “to address both components of the inquiry if the defendant makes an insufficient showing on one”).
The Constitution imposes upon counsel a duty to consult with the defendant about an appeal “when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Counsel's duty in this regard contemplates “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes.” Id. at 478. In determining whether counsel has a constitutional duty to consult, the Supreme Court provided the following guidance:
Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.Id. at 480. “If counsel has consulted with the defendant, the failure to file an appeal is deficient only if it contradicts the defendant's instruction to appeal.” Hudson v. Hunt, 235 F.3d 892, 896 (4th Cir. 2000). Furthermore, in United States v. Peak, the Fourth Circuit held that if a client instructs his attorney to file an appeal and the attorney fails to do so, the attorney's actions constitute ineffective assistance notwithstanding the likelihood of success on appeal. 992 F.2d 39, 42 (4th Cir. 1993). Finally, the defendant must show prejudice, i.e., “a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.” Roe, 528 U.S. at 484.
Here, there is no dispute that both Judge Dever and Guirguis informed Ragin that he had the right to appeal, and Ragin testified that Guirguis discussed his appeal rights, including the appeal waiver, with him after sentencing. Hr'g Tr. [DE-134] at 11:20-12:17. Guirguis consulted with Ragin immediately after sentencing in the holding area regarding his appeal rights and at the close of their conversation determined that Ragin did not want to appeal. Id. at 31:24-33:25, 42:15-18, 43:5-8, 44:16-46:4. The testimony of Ragin and Guirguis is largely consistent up to this point. Ragin initially was considering appealing his sentence, the two discussed his options as he indicated he was still thinking about it, and finally he indicated he did not want to appeal. See Appeal Waiver Form [DE-97-1] at 6. Although Ragin claims that he was still conflicted about filing an appeal at the conclusion of the post-sentencing meeting with Guirguis and was told he could call her if he changed his mind, he does not dispute that he left the conversation with Guirguis indicating that he did not want to file an appeal. Hr'g Tr. [DE-134] at 14:10-15:14, 33:15-25. What happened after Guirguis left Ragin is a material point of contention.
Ragin testified that he told Guirguis on August 8 that he did not want to appeal, but approximately a week later he called Guirguis's office through a third party and told a paralegal that he did want to appeal. Id. at 15:23-19:8. Guirguis testified that she never received that instruction and that there was no documentation that anyone in her office received Ragin's call. Id. at 54:4-10. Ragin's testimony is not credible where it is inconsistent with statements in his 2255 petition and supporting documents.
First, in his 2255 petition Ragin stated that on August 8, 2019, he “directly told/instructed counsel to file a ‘Notice of Appeal' on his behalf,” and counsel agreed to file said appeal, but through neglect she deliberately failed to do so.” Pet. [DE-85] at 4. However, at the evidentiary hearing he testified that he left the conversation with Guirguis indicating that he did not want to file an appeal but about a week later changed his mind, called her, and directed her paralegal to tell Guirguis to file an appeal. Hr'g Tr. [DE-134] at 15:23-16:22, 33:15-25.
Second, after the Government filed a motion for summary judgment, supported by a copy of the Appeal Waiver Form signed by Ragin during his post-sentencing meeting with Guirguis on August 8 that indicated he did not want to appeal his case, [DE-97-1] at 6, Ragin filed a declaration in response that is inconsistent with his hearing testimony, [DE-115-3]. Ragin again stated in the declaration that on August 8, he told Guirguis that he thought he should file an appeal and she said she would immediately file an appeal but did not, and Ragin also stated that he called Guirguis's office “several times reminding her to file an appeal, because the 14-day period was moving very fast.” Id. Ragin's petition makes no mention of calling Guirguis, and he testified at the hearing to calling her once because he changed his mind about wanting to file an appeal. He did not testify that he called her several times to remind her to file an appeal, which would have been inconsistent with his hearing testimony that he initially told Guirguis he did not want to file an appeal.
Third, the letter from Robin Owens, filed along with Ragin's response to the Government's motion, stating that Owens placed a third party call for Ragin to Guirguis and that the conversation was about Ragin wanting to appeal, [DE-115-4], is insufficient to corroborate Ragin's testimony. The third party phone call was not mentioned in the initial petition, the letter and story about the phone call only appeared after the Government filed the Appeal Waiver Form where Ragin indicated that he did not want to appeal, which contradicted the facts in his petition, and Owens did not testify at the hearing nor is her written statement made under penalty of perjury.
Ragin's hearing testimony that, after equivocating, he told Guirguis he did not want to file an appeal on August 8, directly contradicts the statements in Ragin's petition and declaration, both made under penalty of perjury, that Ragin told Guirguis on August 8 to file a notice of appeal and she failed to do so. Compare Hr'g Tr. [DE-134] at Id. at 33:15-33:25, with Pet. [DE-85] at 4, and Ragin Decl. [DE-115-3]; see Patrick v. United States, No. 7:17-CR-28-M, 2022 WL 3337149, at *4 (E.D. N.C. Mar. 30, 2022) (finding the petitioner's credibility was undermined by the fact that the basis for relief stated in his motion contradicted his own testimony, where the petitioner stated in his motion that counsel failed to file a notice of appeal despite the petitioner having told Mr. counsel to do so but in court the petitioner denied telling counsel to file a notice of appeal on the day of sentencing), report and recommendation adopted, 2022 WL 2817603 (E.D. N.C. July 19, 2022). Ragin's initial petition makes no mention of any phone calls placed to Guirguis, his declaration states he called her office several times to remind her to file the appeal, and he testified that he called her one time to let her know that he had changed his mind and wanted to file an appeal. The shifting nature of Ragin's story diminishes his credibility. See Rahman v. United States, No. 7:08-CR-126-D, 2013 WL 5222160, at *5 (E.D. N.C. Aug. 27, 2013) (explaining that when evaluating witness credibility “‘[d]ocuments or objective evidence may contradict the witness's story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.'”) (citing United States v. Marcavage, 609 F.3d 264, 281 (3d Cir. 2010)), adopted by 2013 WL 5230610 (E.D. N.C. Sept. 16, 2013).
The court finds that Guirguis credibly testified that she met with Ragin, advised him of his appeal rights, after some discussion Ragin decided he did not want to appeal, and Guirguis did not receive a call or have any documentation indicating Ragin wanted to appeal his case. Guirguis's credibility is bolstered by her specific recollection of the events, her experience as a federal criminal defense attorney, and her office procedures whereby such a call from Ragin would have been documented and a notice of appeal filed. Guirguis consulted with her client about an appeal and determined his wishes, which satisfied her constitutional obligations in light of Roe. See Cephus v. United States, No. 2:11-CR-27-D, 2013 WL 6859274, at *2 (E.D. N.C. Dec. 30, 2013) (finding counsel performed reasonably and satisfied his Sixth Amendment obligations where he discussed the petitioner's appellate rights, including the advantages and disadvantages of filing an appeal, and determined his client did not want to appeal). Accordingly, it is recommended that the claim be dismissed.
Finally, consistent with the court's directive, the undersigned has assessed the credibility of Ragin at the evidentiary hearing. A person commits perjury if “having taken an oath before a competent tribunal . . . in any case in which a law of the United States authorizes an oath to be administered, that he will testify . . . truly . . . willfully and contrary to such oath states . . . any material matter which he does not believe to be true.” 18 U.S.C. § 1621. Thus, the issue presented is whether or not Ragin believed his testimony regarding the material events in question to be true. See Sanderson v. United States, No. 7:10-CR-144-D-1, 2020 WL 3979686, at *7 (E.D. N.C. June 2, 2020), report and recommendation adopted, 2020 WL 3979657 (E.D. N.C. July 14, 2020). While Ragin's testimony at the evidentiary hearing was, on certain material points, inconsistent with statements made in his court filings, the events at issue took place roughly three years ago and much of his testimony was consistent with that of Guirguis. Accordingly, undersigned does not find that Ragin committed perjury at the hearing.
IV. CONCLUSION
For the reasons stated above, it is recommended that Ragin's § 2255 claim of ineffective assistance of counsel be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until October 18, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).