Opinion
5:19-cr-00030-MTT-CHW-2 5:21- cv-00370-MTT-CHW
08-08-2023
JOSEPH WILLIAMS, Movant, v. UNITED STATES OF AMERICA, Respondent.
Proceedings under 28 U.S.C. § 2255 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge
Pending before the Court is Movant Joseph Williams' motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Docs. 149, 153, 162). For the reasons stated below, it is recommended that Williams' motion to vacate be DENIED.
BACKGROUND
On August 20, 2020, a superseding information charged Movant with one count of conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and in connection with 21 U.S.C. § 841(a)(1), (b)(1)(C). (Superseding Information 1, Doc. 122.) Movant waived his right to an indictment and pleaded guilty to the superseding information on the same day. (Docs. 123, 126).
During Movant's plea hearing, the Assistant United States Attorney (“AUSA”) recited the stipulated facts of the plea agreement to establish a factual basis for the plea. (Doc. 156, pp. 14-17). The plea agreement stipulated the following factual basis for the plea:
On October 7th, 2018, an officer with the Byron, Georgia, Police Department conducted a traffic stop on a vehicle driven by Demarcus Bell. Bell consented to a search of the vehicle, and officers found what was later confirmed to be 993 grams of d-methamphetamine hydrochloride with a purity of 89 percent; 1,017.1 grams of d-methamphetamine hydrochloride with a purity of 82 percent; and 58.27 grams of methamphetamine hydrochloride.
Bell waived his Miranda rights and agreed to talk to officers about the methamphetamine found in his vehicle. Bell told officers he was expected to make a delivery of methamphetamine to a man from Virginia that same day. He stated his contact in Virginia was a person known to him as "Lex Willie," who was later identified as Defendant.
Defendant made arrangements to purchase 2 kilograms of methamphetamine from Bell. Bell and Defendant agreed that Bell would meet with Defendant's driver at a gas station in Byron, Georgia. Defendant told Bell that his driver would be in a brown Hyundai Santa Fe. Defendant also told Bell that there would be a bag with $15,800 cash hidden in the rear of the SUV to purchase the 2 kilograms of methamphetamine.
Later that day, on October 7th, 2018, an officer with the Byron Police Department observed a brown Hyundai Santa Fe with a Virginia license plate being driven by Joseph Whitlock. Whitlock was seen holding a cell phone in his hand, which was in violation of Georgia law. Officers conducted a traffic stop of Whitlock's vehicle and obtained consent to search the vehicle wherein they found $15,800 inside a natural void in the trunk of the vehicle.
Whitlock was arrested that day and later waived his Miranda rights and acknowledged that a person known to him as "Little L" had paid him to transport the $15,000 cash from Virginia to Georgia and return with a package. Whitlock indicated that he did not know exactly what would be in the package, but knew that it would be illegal in nature.
Following Whitlock's arrest, Bell continued to cooperate with law enforcement and called Defendant to tell him that Whitlock had been arrested. Defendant responded that he would "get his bread together" and would come down himself in a few days to pick up the methamphetamine.
Bell and Defendant then made arrangements for Defendant to purchase 1 kilogram of methamphetamine from Bell on October 9th, 2018. The day of their agreed-upon meeting, agents placed 1 kilogram of methamphetamine in the trunk of Bell's vehicle in a hotel parking lot in Byron, Georgia.
Defendant arrived in a Land Rover and was observed by agents getting out of his vehicle with a brown paper bag and walking to Bell's vehicle. Defendant called Bell to get into the trunk, and agents then used Bell's key fob to open the trunk. Defendant was then seen placing the brown paper bag into Bell's trunk and retrieving the package of methamphetamine from Bell's trunk. Defendant then returned to his Land Rover and was seen placing the methamphetamine in the air filter compartment near the engine before reentering the vehicle.
Agents approached and placed Defendant under arrest. Inside that air filter compartment agents located the roughly 1 kilogram of methamphetamine that had been left in Bell's trunk. They also obtained a brown paper bag that they saw Defendant place in Bell's trunk and recovered $7,877.
On October 12th, 2018, Defendant was advised of and waived his Miranda rights. Defendant acknowledged that he had sent Whitlock to pick up 2 kilograms of methamphetamine and was paying him to do so. He also acknowledged that he had traveled to Georgia to pick up 1 kilogram of methamphetamine for $7,000 when he was arrested.
Defendant now admits and agrees that between October 7th, 2018, and October 9th, 2018, he, Demarcus Bell, and Joseph Whitlock agreed to
try to accomplish a shared and unlawful plan to possess with the intent to distribute methamphetamine. Defendant admits that he knew the unlawful purpose of the plan was to distribute a controlled substance and that he willfully joined in it.
The parties agree that for purposes of relevant conduct under the sentencing guidelines, the amount of drugs attributable to Defendant is no more than 3 kilograms of "ice."(Doc. 156, pp. 14-17; Doc. 125, ¶ 7).
Following this recitation of facts, the Court asked Movant if he agreed that these facts are true and accurate, to which Movant replied, “Yes, your honor.” (Doc. 156, p. 18). Movant also signed the written plea agreement and initialed each page, including the stipulation of facts. (Doc. 125).
Following Movant's guilty plea, the United States Probation Office prepared a pre-sentence report (“PSR”) (Doc. 141) using the United States Sentencing Guidelines. In calculating the offense level, the PSR assigned an adjusted level of 36. (Id., ¶ 27). After a three-level reduction for acceptance of responsibility and entering the plea in a timely manner, the final total offense level was 33. (Id. ¶¶ 29-31). The PSR calculated a criminal history category of II and determined that Movant's Guidelines imprisonment range was 151-188 months. (Id. ¶ 67). On November 10, 2020, the Court sentenced Movant to 151 months' imprisonment using the advisory guideline range calculated in the PSR. (Doc. 142). The Court further sentenced Movant to three years of supervised release following his imprisonment and imposed a $100 mandatory assessment.
On October 21, 2021, Movant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Doc. 149). Movant filed an amended motion to vacate his sentence on November 29, 2021. (Doc. 153). The Government responded to Movant's amended motion on March 17, 2022. (Doc. 158). Movant filed a second amended motion to vacate his sentence on May 10, 2022. (Doc. 162). The Government notified the Court on May 31, 2022, of its choice to not to respond to Movant's second amended motion. (Doc. 164). Movant's motion to vacate is ripe for review.
DISCUSSION
Movant claims he is entitled to relief under 28 U.S.C. § 2255 based on (1) his entitlement to a two-level downward departure; (2) constitutional issues related to his arrest and imprisonment; and (3) ineffective assistance of counsel. (Doc. 153, pp. 4-6; Doc. 1531, pp. 2-8). None of these grounds warrants relief under § 2255.
I. Two-Level Downward Departure
Movant first seeks to vacate his sentence based on his alleged entitlement to a two-level downward departure, claiming that the COVID-19 pandemic created an “atypical” situation which the Court failed to consider during sentencing. Specifically, Movant argues that the global pandemic constitutes an “aggravating or mitigating circumstance” warranting a downward departure under section 5K2.0 of the sentencing guidelines. (Doc. 153-1, pp. 2-3).
Movant's claim that the sentencing guidelines were misapplied is procedurally defaulted. Section 2255 is not a substitute for appeal (Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)), and claims not raised on appeal generally are procedurally defaulted, meaning they “may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). If a criminal defendant does not challenge his conviction or sentence through a direct appeal, the defendant is generally barred from bringing the claim under 28 U.S.C. § 2255. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (finding a petitioner's claim he was “erroneously sentenced as a career offender” procedurally barred when he did not directly appeal his sentence).
This procedural default is subject to two exceptions: (1) for cause and prejudice; and (2) for a constitutional violation resulting in the miscarriage of justice. Id. (citing Lynn v. United States, 365 F.3d 1125, 1234 (11th Cir. 2004)). The “cause and prejudice” exception applies when the petition shows good “cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” McKay, 657 F.3d at 1196 (internal quotations omitted). The “miscarriage of justice” exception applies when the alleged error results in the conviction or sentencing of a petitioner who is actually innocent. Id. Movant has not challenged his sentence through direct appeal and has failed to show how either exception applies to his case. Therefore, Movant is procedurally barred from challenging his sentence under 28 U.S.C. § 2255.
Even if Movant had avoided procedural default by challenging his sentence through direct appeal, 28 U.S.C. § 2255 is not the proper vehicle to grant relief for Movant's claim. Relief under 28 U.S.C. § 2255 is reserved for “error[s] of constitutional magnitude.” Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014). A district court may only review a non-constitutional claim when its alleged error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428 (1962). Movant's claim is not of constitutional magnitude, nor does it constitute a “fundamental defect . . . result[ing] in a complete miscarriage of justice.” Id. Instead, Movant's sentence was lawfully decided. The Court sentenced Movant below the statutory maximum and within the calculated guidelines in the absence of a motion for a downward departure. Therefore, the Court has no authority to grant Movant relief under 28 U.S.C. § 2255 for his claim. See United States v. Brumlik, 947 F.2d 912, 913-14 (11th Cir. 1991) (finding “[a] sentencing judge's refusal to make a downward departure” not reviewable when the petitioner was sentenced “within the applicable guideline in the absence of a . . . motion for a downward departure”); see also United States v. Addonizio, 442 U.S. 178, 185 (1979) (finding a “lawful” sentence did not constitute a “complete miscarriage of justice”); see also Spencer, 773 F.3d at 1138-39 (stating a petitioner “sentenced below the statutory maximum” cannot show a “complete miscarriage of justice” through a sentencing error without proving “either actual innocence of his crime or the vacatur of a prior conviction”).
II. Issues Pertaining to Williams' Arrest and Detention
Movant seeks to vacate his sentence based on constitutional issues revolving around his arrest and pretrial detention. Specifically, Movant claims he was a victim of “excessive force, racial bias, prejudice, fear and apprehension, police brutality, emotional distress, cruel and unusual punishment, injury, aggravating existing injury and assault and battery” by the arresting officers. (Doc. 153, p. 5). These claims are typically not cognizable under 28 U.S.C. § 2255.
Relief is granted under 28 U.S.C. § 2255 for issues pertaining to the legality of an individual's conviction or sentence. 28 U.S.C. § 2255(a); see also Spencer, 773 F.3d at 1138-41 (referencing 18 U.S.C. § 2255 as a vehicle for contesting a conviction or sentence). Movant asserts issues related to his arrest and detention that have no bearing on his conviction or sentence. Instead, it appears Movant seeks civil relief for his injuries, which must be settled through a claim under 42 U.S.C. § 1983. Absent an allegation tying these acts of excessive force to the legality of Movant's conviction or sentence, the Court has no authority to grant Movant relief under 28 U.S.C. § 2255. See Alston v. United States, Nos. 3:16-cv-867-J-32PDB, 3:12-cr-118-J-32PDB, 2019 WL 2411197, at *8 (N.D. Fla. June 7, 2019) (finding movant's claim of excessive force not cognizable under 28 U.S.C. § 2255 because it did “not implicate the legality of his conviction and sentence”).
Movant attempts to tie the alleged acts to the legality of his conviction by raising the issue of “selective enforcement of law.” (Doc. 153-1, p. 6). In making a claim of selective enforcement, the petitioner bears the burden of showing intentional discrimination. See E & T Realty v. Strickland, 830 F.2d 1107, 1112 (11th Cir. 1978) (quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)) (“The unlawful administration by state officers . . . resulting in unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.”). Movant attempts to show intentional discrimination through racial bias, but he has failed to show “that similarly situated individuals of a different race were not prosecuted.” See United States v. Armstrong, 517 U.S. 456, 465 (1996) (requiring a movant to “show that similarly situated individuals of a different race were not prosecuted” in order “to establish discriminatory effect in a race case”). Therefore, Movant has failed to meet his burden to show his entitlement to relief on this ground. See Wright v. United States, No. 8:03-cr-343-T-30MSS, 2007 WL 1625893, at *2-3 (M.D. Fla. June 5, 2007) (finding an allegation of racially motivated selective prosecution “weak, if not meritless” when the movant failed to show “racial disparity” and “discriminatory motivation”).
Even if Movant had a meritorious argument that the circumstances of his arrest and detention somehow called into question the validity of his conviction and sentence, that claim would be procedurally defaulted, as Movant could have raised this clam on direct appeal and failed to do so.
III. Ineffective Assistance of Counsel
In his third ground, Movant seeks to vacate his sentence based on ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must establish, by a preponderance of the evidence, (1) that his attorney's performance was deficient, and (2) that he was prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Chandler v. U.S., 218 F.3d 1305,1312-13 (11th Cir. 2000).
To establish deficient performance, a movant must prove that his counsel's performance “was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To show counsel's performance was unreasonable, a movant must establish that no competent counsel would have taken the action in question. Van Poyck v. Fla. Dep't of Corrs., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam). There is a strong presumption that the challenged action constituted sound trial strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996). As for prejudice, a movant must show there is a reasonable probability that, but for counsel's inadequate representation, “the result of the proceeding would have been different.” Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 694). If a movant fails to establish that he was prejudiced by the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
When challenging guilty pleas based on ineffective assistance of counsel, a movant must still satisfy the two-part Strickland test. Hill v. Lockhart, 474 U.S. 52, 58 (1985). In doing so, a movant may only attack the “voluntary and intelligent character of the guilty plea.” Id. at 56-57. A movant may establish deficient performance by demonstrating that counsel's advice was not within the “range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970). A movant must satisfy the prejudice prong by demonstrating “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Martin v. United States, 949 F.3d 662, 667 (11th Cir. 2020). Further, a movant must also “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see Diveroli v. United States, 803 F.3d 1258, 1265 (11th Cir. 2015) (affirming denial of motion to vacate because “it would not have been rational for [the petitioner] to reject his plea bargain”).
Movant alleges his counsel's assistance was ineffective in three ways: (1) counsel failed to pursue a two-level departure under section 5K2.0 of the sentencing guidelines; (2) counsel misled Movant about the possible length of his imprisonment; and (3) counsel did not seek relief based on the alleged issues related to Movant's arrest and pretrial detention. (Doc. 153, p. 6; Doc. 153-1, pp. 7-8). As explained below, Movant has failed to show that any of these acts satisfies the Strickland test and therefore has not met his burden to show counsel's performance was deficient.
A. Two-Level Departure
Movant claims he was prejudiced by counsel's failure to pursue a two-level downward departure under section 5K2.0 of the sentencing guidelines, contending that it was common practice for courts to award lesser sentences in light of the harsher conditions presented through the COVID-19 pandemic and that “it was common practice at the time of this Movant's sentencing that the United States Attorney's Office in Movant's District was freely offering a 2 point reduction to any defendant that entered a guilty plea agreement at the height of the pandemic.” (Doc. 162, p. 3).
In this argument, Movant may be referring to a policy adopted by the United States Attorney in the Middle District of Georgia during the height of the COVID-19 pandemic. Although it is not in the record of the case and is not part of any public record, on November 10, 2020, the date of Movant's sentencing in this case, the U.S. Attorney's Office for the Middle District of Georgia sent an email to the Court announcing that in certain cases, in a written plea agreement, the Government would recommend a two-level downward departure under U.S.S.G. § 5K2.0(a)(2)(B), titled “Unidentified Circumstances.” The purpose of the policy was to reduce a backlog of cases created by a trial moratorium that had already lasted several months and was set to continue indefinitely. It was not based on a concern that COVID-19 restrictions created harsher conditions within prisons. Under the policy, prosecutors in this District were authorized to exercise their discretion to make a non-binding recommendation to the Court, depending on the facts and circumstances of each individual case. Although the Government has alluded to this policy in its response brief (Doc. 198, p. 7), neither party has submitted evidence of the policy, and it is not clear that the Court can take judicial notice of this policy under Rule 201 of the Federal Rules of Evidence.
Petitioner has not shown how counsel's failure to request a downward departure was unreasonable in light of the circumstances. Petitioner was sentenced in November 2020, some eight months after the beginning of the COVID-19 pandemic. At that time, practices related to sentencing in light of the pandemic were not established and the application of U.S.S.G. § 5K2.0 to concerns created by the pandemic was uncertain. In section 5K2.0(a)(2)(B), titled “Unidentified Circumstances,” the Guidelines authorize a departure “in the exceptional case in which there is present a circumstance that the Commission has not identified in the guidelines but that nevertheless is relevant to determining the appropriate sentence.” The COVID-19 pandemic was not an exceptional circumstance, however, but was a circumstance that applied to every single convicted defendant facing sentence, indeed a circumstance faced by everyone in prison and out of prison. Movant has neither identified any specific health concerns that made him more susceptible to the virus than any other defendant nor demonstrated that a downward departure, reducing the length of his sentence, would have addressed any short-term concerns related to the pandemic.
Courts have often rejected arguments that the pandemic would constitute grounds for a downward departure under this provision. See United States v. Hernandez-Alavez, 836 Fed.Appx. 159, 160 (4th Cir. 2021) (finding the district court's decision to not grant a downward departure based on the COVID-19 pandemic reasonable); United States v. Piper, No. 20-1867, 2021 WL 5088709, at *4 (6th Cir. Nov. 2, 2021) (finding that defendant had not shown that his health conditions were extraordinary even in light of the pandemic); Finley-Sanders v. United States, No. 1:20-cr-263-MLB-JKL, 2022 WL 2783842, at *8-9 (N.D.Ga. Mar. 23, 2022) (finding counsel's failure to request a downward departure based on the COVID-19 pandemic did not constitute ineffective assistance after petitioner failed to show counsel's actions were unreasonable and failed demonstrate the pandemic constituted an “extraordinary issue” warranting a downward departure); see also, cf., United States v. Olawoye, 477 F.Supp.3d 1159, 1163-64 (D. Or. 2020) (finding the COVID-19 crisis an “extraordinary and compelling” reason that must be taken into account within federal sentencing guidelines).
In light of these considerations, Petitioner is unable show that no competent attorney would have failed to request a downward departure based on the COVD-19 pandemic. See Van Poyck v. Fla. Dep't of Corrs., 290 F.3d at 1322 (requiring a petitioner to show counsel's deficiency by showing no competent attorney would have acted in counsel's manner).
B. Sentence Estimate
Movant next argues that his counsel was ineffective in misleading Movant about the possible length of his sentence, although he has given no detail about what estimate his counsel gave or how he was misled by that estimate. Aside from this blanket assertion, Movant fails to make a specific showing of prejudice. As such, Movant has failed to meet his burden of showing that counsel was ineffective. However, even if Movant attempted to show prejudice by stating he would not have pleaded guilty but for counsel's predicted sentence length, Movant's claim would be meritless.
During the change of plea hearing, the Court notified Movant that the Court's sentence could be different from any estimate that someone may have given him and that Movant should not plead guilty based on any estimate as to what the guideline range might be. (Doc. 156, p. 20). Movant was informed that the statutory maximum sentence was twenty years. (Id. at 12). Movant acknowledged under oath that he was not pleading guilty based on any sentence estimate provided by his attorney. (Id. at 20). Because Movant was informed of the possible maximum sentence and advised that counsel's estimate would not necessarily be indicative of his actual sentence, Movant is unable to show his reliance on counsel's advice and its prejudicial effect. Courts have routinely held that an attorney's inaccurate prediction about a sentencing range does not constitute ineffective assistance of counsel. See, e.g., Addison v. United States, No. 2:15-cr-8, 2018 WL 1630960, *14 (S.D. Ga. Feb. 21, 2018) (citing cases from the 11th, 10th, 2nd, 3rd, and 7th Circuits).
Moreover, Movant has provided no evidence or argument to indicate that he would not have pleaded guilty and would have gone to trial had his lawyer not incorrectly estimated his possible sentence. In cases challenging a guilty plea based on ineffective assistance of counsel, the prejudice inquiry under Strickland “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. There is nothing in the record of this case or in Movant's arguments to suggest that any erroneous sentence estimate by counsel affected Movant's decision to enter a guilty plea rather than go to trial.
C. Issues Related to Movant's Arrest and Detention
Movant finally contends that his counsel was ineffective for failing to raise issues relating to Movant's arrest and detention. As noted above, Movant claims that during his arrest and detention he suffered “excessive force, racial bias, prejudice, fear and apprehension, police brutality, emotional distress, cruel and unusual punishment, injury, aggravating existing injury and assault and battery.” (Doc. 153, p. 5). Aside from this blanket assertion, Movant fails to show specifically how counsel's inaction on the issue resulted in prejudice because he has not shown that any of these conditions affect the validity of his conviction or sentence. While Movant may have received civil relief for these claims, counsel's inaction on Movant's excessive force claims would ordinarily have no effect on Movant's conviction or sentence. See Strickland, 466 U.S. at 687 (requiring counsel's deficient performance to affect the hearing's outcome in order to prevail on an ineffective assistance claim).
Even if Movant attempted to show prejudice by associating his claim of “selective law enforcement” to his conviction or sentence, Movant would still be unable to show ineffective assistance because he has failed to show that he had a meritorious claim of selective enforcement. Without such showing, Movant is unable to prove counsel's actions ineffective. See Boldender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (finding no ineffective assistance when counsel failed to raise “nonmeritorious issues”).
IV. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Movant cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is recommended that Movant's motion to vacate his sentence (Docs. 149, 153, 162) under 28 U.S.C. § 2255 be DENIED. Additionally, a certificate of appealability should be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.