Opinion
5:20-CR-131-FL 5:22-CV-328-FL
05-22-2023
DWIGHT ULMER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONESM JR., UNITED STATES MAGISTRATE JUDGE.
This matter comes before the court on Petitioner Dwight Ulmer's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [DE-57, -65], and motion to appoint counsel, [DE-58], and the Government's motion to dismiss, [DE-68]. Petitioner filed a response to the Government's motion, [DE-72], and supplemental evidence in support of his claims, [DE-87], The matter is fully briefed and ripe for decision. For the reasons stated below, the motion to appoint counsel is denied, and it is recommended that the motion to dismiss be allowed and the petition be dismissed.
I. Procedural History
The Grand Jury charged Ulmer in a six-count indictment with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and 924 (Counts 1 and 4); two counts of distribution of a quantity of a mixture and substance containing a detectable amount of heroin and para-fluoroisobutyryl fentanyl, in violation of 21 U.S.C. § 841(a)(1) (Count 2 and 5); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3); and distribution of a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1) (Count 6). [DE-1], Ulmer, represented by court-appointed counsel, pleaded guilty pursuant to a written plea agreement to Counts 2, 4, and 5 of the Indictment. [DE-24, -26]. The court sentenced Ulmer to 168 months' imprisonment and three years' supervised release. [DE-39]. Ulmer, with the assistance of counsel, filed a notice of appeal, [DE-41], and the Court of Appeals dismissed the sentencing issues raised on appeal as barred by the plea agreement's appeal waiver and found no meritorious grounds for appeal outside the scope of the waiver, [DE-52]. Ulmer timely filed the instant § 2255 petition, [DE-57], which he subsequently refiled on the correct form, [DE-65], and sought appointment of counsel, [DE-58]. The Government then moved to dismiss Ulmer's petition. [DE-68].
II. Standard of Review
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence.” United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citations omitted). Where a petitioner seeks relief from a nonconstitutional error, “the scope of review ... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure[.]” Id. (internal quotation marks and citations omitted). “In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence.” Toribio-Ascencio v. United States, No. 7:05-CR-97-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to § 2255 proceedings to the extent such rules are not inconsistent with any statute or the § 2255 rules). However, the “‘[factual allegations must be enough to raise a right to relief above the speculative level' and have ‘enough facts to state a claim to relief that is plausible on its face.'” Wahi v. Charleston Area Med. Ctr, Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. JD. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
III. Analysis
As an initial matter, Ulmer asks the court to appoint counsel because he asserts that he is indigent, he lacks access to the law library and legal resources, his case is complex, and his claims are colorable. [DE-58]. There is no right to appointed counsel in post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Williamson, 706 F.3d 405, 416 (4th Cir. 2013). Appointment of counsel may be authorized if the “court determines that the interests of justice so require ... for any financially eligible person who ... is seeking relief under section 2241, 2254, or 2255 of title 28.” 18 U.S.C. § 3006A(2). Here, the court finds that the interests of justice do not require appointment of counsel in this matter. Ulmer's filings demonstrate that he is capable of presenting his claims, and the case is not complex. Accordingly, the motion to appoint counsel is denied.
Turning to the claims, Ulmer asserts his counsel was ineffective in four ways: (1) failing to advise him of the sentencing guidelines, potential sentencing enhancements, and his potential sentencing exposure under varying defense strategies (e.g., taking a plea or going to trial), and failing to pursue a trial strategy; (2) failing to investigate the case and to present favorable evidence made known to counsel; (3) providing erroneous advice that undermined his ability to make an intelligent decision in the plea process; and (4) failing to challenge the factual basis or object to the career offender enhancement. [DE-57-2]; [DE-65] at 4-8. The Government contends that Ulmer's ineffective assistance claims must be dismissed because the factual allegations underlying the claims are contradicted by Ulmer's sworn statements at his arraignment and plea hearing, the claims are barred by the collateral attack waiver in his plea agreement, and Ulmer was appropriately sentenced as a career offender. Gov't Mem. [DE-69] at 12-21.
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 Sixth Amendment right to effective assistance of counsel “extends to the pleabargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). Counsel has a duty to communicate formal offers from the prosecution to the defendant, Missouri v. Frye, 566 U.S. 134, 145 (2012), and “to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forego,” Libretti v. United States, 516 U.S. 29, 50-51 (1995). The Fourth Circuit has found that counsel may be ineffective where counsel's erroneous advice impacts the defendant's plea decision. See United States v. Mayhew, 995 F.3d 171, 177 (4th Cir. 2021) (grossly erroneous advice regarding sentencing exposure that caused a defendant to forgo a plea and take the case to trial was ineffective); O'Tuel v. Osborne, 706 F.2d 498, 499-501 (4th Cir. 1983) (holding that “gross misinformation” from counsel about parole eligibility, which caused defendant to accept a guilty plea, constituted ineffective assistance of counsel).
1. Claims One through Three
In Claim One, Ulmer asserts that counsel failed to advise him of the sentencing guidelines, potential sentencing enhancements, and his potential sentencing exposure under varying defense strategies (e.g., taking a plea or going to trial), and failed to pursue a trial strategy after Ulmer expressed his interest in going to trial rather than entering into a plea agreement with the Government. [DE-57] at 4; [DE-57-2] at 5-6; [DE-65] at 4. In Claim Two, Ulmer asserts that counsel failed to investigate the case, to file pretrial motions, and to present favorable evidence made known to counsel that contradicted the police version of events. [DE-57] at 4; [DE-57-2] at 6; [DE-65] at 5. In Claim Three, Ulmer asserts that counsel provided erroneous advice that undermined his ability to make an intelligent decision in the plea process and failed to review or discuss evidence with Ulmer. [DE-57] at 4; [DE-57-2] at 7; [DE-65] at 7. These claims are undermined by Ulmer's statements at his Rule 11 plea hearing and barred by his plea waiver.
First, Ulmer was advised of his sentencing exposure at his Rule 11 plea hearing. Ulmer's arraignment and Rule 11 hearing were conducted on January 21, 2021 by the undersigned. [DE-24], Ulmer was placed under oath and asked a series of questions aimed at ensuring he was competent and that his plea was made knowingly and voluntarily. Ulmer affirmed that he had been provided with a copy of the charges against him and that his attorney had fully discussed those charges and his case in general with him, he understood the charges against him and what was happening in court at the hearing, and he was satisfied with his attorney's advice and counsel in the case. Arraignment Tr. [DE-47] at 11-13. Ulmer was also advised of the maximum possible penalties for each count he faced, including that if he was found to be an armed career criminal the penalty was not less than fifteen years' imprisonment, and he acknowledged that he understood the maximum punishment he faced if found guilty of the charges against him. Id. at 14-16. Finally, Ulmer was advised that if the court accepted his guilty plea that he would waive his right to a jury trial and that he may not be able to withdraw his plea and have a trial in his case. Id. at 4, 18.
Ulmer affirmed that he intended to plead guilty to Counts 2, 4, and 5 pursuant to a written plea agreement that he had signed and that he had an opportunity to read and discuss with his attorney before he signed it. Id. at 16-17. Ulmer affirmed that he understood the terms and legal phrases in the agreement, that by entering into the agreement he would waive or give up his right to appeal or collaterally attack all or part of his sentence, and that he was pleading guilty of his own free will because he was, in fact, guilty. Id. at 17. Ulmer declined more time to think about his plea or to further discuss his case with his attorney, and he entered guilty pleas to Counts 2, 4, and 5. Id. at 17-19. Ulmer then admitted to the conduct alleged in the charges. Id. at 19-20.
[A] defendant's solemn declarations in open court. . . carry a strong presumption of verity ... because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. . . . Indeed, because they do carry such a presumption, they present a formidable barrier in any subsequent collateral proceedings. Thus, in the absence of extraordinary circumstances . . . allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always palpably incredible and patently frivolous or false. Thus, in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding
an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements. Otherwise, a primary virtue of Rule 11 colloquies would be eliminated-permitting quick disposition of baseless collateral attacks.United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) (internal citations and quotation marks omitted).
Ulmer's claims that he was not advised regarding sentencing exposure by his counsel prior to entering a plea agreement, that counsel failed to pursue a trial strategy against his wishes, that counsel failed to investigate his case and file pretrial motions, and counsel provided erroneous advice are contradicted by his sworn statements at the plea hearing that he had discussed his case with counsel, understood the charges and penalties he faced, was satisfied with counsel's advice, and wanted to plead guilty pursuant to the plea agreement even though he would be giving up his right to trial. Additionally, at Ulmer's sentencing hearing, after the court noted Ulmer's guideline range was 168 to 210 months, Ulmer did not indicate that he was unaware of his sentencing exposure or that he wanted to withdraw his guilty plea and proceed to trial; instead, he thanked the Government's counsel for allowing him to accept a plea and thanked his counsel for her representation and giving him “110 percent.” Sent. Tr. [DE-46] at 3, 14. Ulmer's claims that counsel's performance in advance of the plea hearing was deficient are baseless because they are contradicted by Ulmer's statements to the court at his plea hearing and at his sentencing. See Beale v. United States, Nos. 4:10-CR-49-FL-3, 4:12-CV-176-FL, 2013 WL 1209620, at *5-6 (E.D. N.C. Jan. 8, 2013) (finding a petitioner's claims of ineffective assistance warranted dismissal because the claims contradicted statements made at the Rule 11 hearing), adopted by 2013 WL 1209939 (E.D. N.C. Mar. 25, 2013); see also Sierro-Pineda v. United States, No. 5:11-CR-22-RLV-1, 2014 WL 5147566, at *4 (W.D. N.C. Oct. 14, 2014) (rejecting claims that counsel was ineffective for failing to explain the alternatives to pleading guilty, advise him of the statutory maximum sentence, discuss the plea agreement, explain the operation of the sentencing guidelines, and discuss the possibility of sentencing enhancements, among other things, where the petitioner's statements at the Rule 11 hearing contradicted the allegations underlying his claims). Ulmer's claims are also barred by his plea agreement in which he agreed to “waive any right to contest the conviction or sentence in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel . . . not known to the Defendant at the time of the Defendant's guilty plea.” [DE-37] at 1 ¶ 2.c. (emphasis added). Ulmer would have known at the time he entered into the plea agreement that counsel had not discussed his sentencing exposure, had not investigated his case, had not fded pretrial motions, had not advised him regarding his case, and was not pursuing a trial strategy, yet he proceeded to plead guilty pursuant to a written plea agreement and in doing so waived his right to bring a § 2255 motion on the grounds he now asserts. See Dickerson v. United States, No. 7:05-CR-131-BO, 2008 WL 11363260, at *2 (E.D. N.C. Oct. 2, 2008) (dismissing claim that counsel was ineffective in failing to advise petitioner as to the application of the sentencing guidelines as barred by his plea waiver and inconsistent with statements made during his Rule 11 hearing). The Fourth Circuit Court of Appeals reviewed the record in this case, including the plea agreement and the Rule 11 hearing transcript, and enforced the valid appeal waiver as to the sentencing issues raised on appeal. [DE-52] at 2. The ineffective assistance of counsel issues Ulmer attempts to raise here are within the scope of a valid appeal waiver because they were “known to the Defendant at the time of the Defendant's guilty plea.” [DE-37] at 1 ¶ 2.c. Accordingly, Claims One, Two, and Three should be dismissed.
According to the Presentence Investigation Report (“PSR”), Ulmer's criminal history category was VI even without the career offender designation, which resulted in the same guideline range whether or not he was a career offender. [DE-31] at 12; [DE-46] at 5.
It is noteworthy that Ulmer faced significant sentencing exposure had he gone to trial. According to the PSR, had Ulmer been found guilty of Counts 1, 3, and 6, which were dismissed pursuant to the plea agreement, he would have to life. [DE-31] at I 8.
2. Claim Four
Ulmer asserts that counsel was ineffective in failing to challenge the factual basis provided by the Government to support his guilty pleas to charges that he possessed a firearm and drugs and in failing to object to the career offender enhancement. [DE-57] at 5; [DE-57-2] at 8; [DE-65] at 8.
At Ulmer's Rule 11 hearing, the Government provided a factual basis to support Ulmer's guilty plea that included the following material information: a confidential informant purchased heroin (later tested and determined to be a mixture of heroin and a fentanyl analog) and a handgun from Ulmer; during the transaction Ulmer indicated he knew he had previously served a sentence exceeding one year because he was previously convicted of fraudulently obtaining Hurricane Katrina funds and served at least eighteen months in prison; and a second controlled purchase of heroin mixed with fentanyl analog was made by a confidential informant. Arraignment Tr. [DE-47] at 20-22. Ulmer's counsel clarified that Ulmer was pleading guilty to the firearm possession charge and not to selling a firearm, id. at 23, and with that clarification Ulmer did not dispute the Government's factual basis, id. at 24.
Ulmer now contends that he did not possess any firearms or drugs and that he was simply a middle man. [DE-57-2] at 8; [DE-72] at 2-3. Thus, Ulmer does not assert that the factual basis was insufficient to support the charges but rather that he did not engage in the conduct alleged in the factual basis and so his attorney should have objected. This claim is flatly contradicted by Ulmer's statements at the Rule 11 hearing. Ulmer pleaded guilty to drug distribution and possession of a firearm by a convicted felon. Arraignment Tr. [DE-47] at 18-20. The court read the charges in Counts 2, 4, and 5 to Ulmer and he affirmatively stated that he did, in fact, engage in the charged conduct. Id. Finally, Ulmer did not dispute the Government's factual basis, which included that a confidential informant purchased drugs and a handgun from Ulmer and that Ulmer knew he was a convicted felon because he had served eighteen months in prison. Id. at 20-24. Ulmer is bound by his sworn statements at the Rule 11 hearing, and his contradictory claim that his counsel should have objected because he did not engage in the charged conduct is meritless. See United States v. Hoke, 442 Fed.Appx. 851, 852 (4th Cir. 2011) (rejecting claim that guilty plea to firearm offenses was invalid because defendant neither used or possessed a firearm, because it was at odds with her statements at the Rule 11 hearing that she was guilty of the offenses and she stipulated that there was a factual basis for the guilty plea); Jordan v. United States, No. 5:11-CR-11-RLV-DSC-l, 2014 WL 5489352, at *8 (W.D. N.C. Oct. 30, 2014) (rejecting claim that defense counsel was ineffective for failing to challenge the sufficiency of the evidence as to a robbery where “Petitioner's self-serving allegation [wa]s contradicted by his sworn statements at the Rule 11 hearing and at the sentencing hearing, where he admitted that he was, in fact, guilty and stipulated to the factual basis set forth in the presentence report.”). Accordingly, this claim lacks merit and should be dismissed.
With regard to Ulmer's assertion that counsel was ineffective in failing to challenge his designation as a career offender, this challenge fails because Ulmer was, in fact, a career offender. A defendant with “at least two prior felony convictions of either a crime of violence or a controlled substance offense” is designated as a career offender under U.S.S.G. § 4Bl.l(a). United States v. Hadden, No. 19-4151, 2023 WL 2770945, at *1 (4th Cir. Apr. 4, 2023). Ulmer asserts that prior convictions from 1994 and 1997 were too old to count as career offender predicates for the instant offenses that occurred in 2018. [DE-65] at 9. In calculating a defendant's criminal history, “[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted.” U.S.S.G. § 4A1.2(e)(1). Additionally, “any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period” is also counted. Id. Counts 2, 4, and 5, to which Ulmer pleaded guilty, alleged conduct occurring on May 3 and 17, 2018. [DE-1]. Therefore, the fifteen year period for counting convictions began on May 3, 2003, under U.S.S.G. § 4A1.2(e)(1). Under the Sentencing Guidelines, both predicate offenses Ulmer challenges were properly counted.
Ulmer was previously charged with possession with intent to sell and deliver cocaine and sell or deliver cocaine based on a March 8, 1994 sale to an undercover officer, and on November 10, 1994 he was found guilty and sentenced to ten years' imprisonment. PSR [DE-31] at 9. He was paroled on October 7, 1996, but his parole was revoked on December 9, 2004. Id. He was paroled again on July 7, 2005, but his parole was again revoked on August 25, 2006. Id. Ulmer was paroled a third time on October 11, 2006 and discharged on January 8, 2007. Id. Due to the revocations of parole, Ulmer was incarcerated during the fifteen year period in 2004, 2005, and 2006. Thus, the 1994 charge was properly considered a predicate for application of the career offender designation. See United States v. Rotnary, 246 F.3d 339, 343 (4th Cir. 2001) (finding a 1987 conviction falling outside the fifteen year period was properly counted as a career offender predicate, because defendant's supervised probation on that conviction was revoked in 1992 and defendant was then incarcerated during the fifteen year period) (citing U.S.S.G. § 4A1.2(e)(1); Johnson v. United States, 529 U.S. 694 (2000)).
Ulmer was also previously charged with distribution of marijuana based on his possession of 41.4 grams of marijuana on May 19, 1997, and on January 28, 1998 he was found guilty and sentenced to fifteen years' custody. PSR [DE-31] at 9-10. Ulmer was paroled on November 17, 2004, but his parole was revoked on October 16, 2008. and he was discharged on March 11, 2016. Id. at 9. Therefore, as with the 1994 charge, although the conduct and conviction on the 1997 charge occurred outside the fifteen year period, the sentence resulted in Ulmer being incarcerated during the fifteen year period-on both his original sentence from which he was paroled in 2004 and on his revocation sentence from October 2008 through March 2016-and, therefore, the 1997 charge was properly counted as a career offender predicate. See Romary, 246 F.3d at 343; United States v. Koonce, No. 3:14-CR-00025-8, 2017 WL 1034794, at *5 (W.D. Va. Mar. 16, 2017). Accordingly, counsel was not ineffective in failing to pursue a meritless objection to Ulmer's career offender designation at sentencing. See Ford v. Polk, No. 5:07-HC-2070-FL, 2008 WL 697462, at *11 (E.D. N.C. Mar. 14, 2008) (“Failure to raise a meritless claim does not fall below ‘an objective standard of reasonableness.'”) (citations omitted).
IV. Conclusion
For the reasons stated above, it is recommended that that the motion to dismiss be allowed, and the petition 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 June 5, 2023 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).