Opinion
CV-21-00014-PHX-GMS (JZB) CR-17-00804-GMS-1
10-06-2022
James Dee Gilmore, Jr., Movant, v. United States of America, Respondent.
HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Movant James Dee Gilmore, Jr. has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, asserting five grounds for relief from the sentences imposed for his conviction on two drug-related offenses in CR-17-00804-GMS-1. (Doc. 1.) Because Ground One was resolved against Movant on direct appeal and the remaining four grounds are without merit, the Court recommends the motion be denied and dismissed with prejudice. The Court notes that Movant states in his Traverse/Reply that he “declines to further argue” Grounds One, Two, Four, and Five. (Doc. 31 at 2.) Movant states that “Ground Three remains the basis” for his habeas claim. (Id.) Notwithstanding, this Report contains a discussion of all claims.
“Doc.” refers to the docket in the instant civil case. “CR Doc.” refers to the docket in the criminal case, No. CR-17-00804-GMS-1 (D. Ariz.). “COA Doc.” refers to the docket in the appellate case, No. 18-10374 (9th Cir.). Page numbers refer to the ECF page numbers.
I. Factual Background & Procedural History.
The Presentence Investigation Report summarized the facts of the case as follows:
On May 16, 2017, [Movant] presented himself and his vehicle for inspection and entry into the United States at the San Luis, Arizona, Port of Entry. [Movant] was the driver and sole occupant of a Chevy Silverado truck, but was not the registered owner. As agents submitted [Movant's] information into their computer system a drug detecting canine alerted to the presence of narcotics in the spare tire located under the bed of the truck. A density machine also gave a high reading suggesting the tire contained matter.
After [Movant] was detained, he told agents he was a hay loader on his way home to Yuma, Arizona. He stated the truck was not his, but belonged to the mechanic who was working on his vehicle because it had been overheating. A plastic baggie containing methamphetamine was found on his person.
Upon inspection of the tire, agents found 46 packages of methamphetamine, weighing 21.5 kilograms, located within the tire located under the bed of the truck. [Movant] stated the methamphetamine found on his person was discovered in the truck when he was searching it for drugs, and planned to smoke the drug once he arrived home. He stated he had heard that drugs were often hidden in the doors or tires of the vehicles crossing into the United States. [Movant] denied the drugs belonged to him or that he was being paid to transport the drugs.
[Movant] also told agents that he did not ask to borrow the truck, the truck had been given to him because his truck was not where he had left it in Somerton, Arizona, and he needed to file a police report. He stated on April 16, 2017, his truck and trailer broke down in Somerton, and he had to leave it. [Movant] could not explain why computer records documented him crossing into the United States from Mexico in his personal truck on May 6, 2017.
[Movant] later admitted Rafa Caesar Gonzalez allowed him to borrow the truck as long as he would drive the truck to Phoenix. [Movant] was to deliver the truck to Gonzalez's uncle, who would then buy a bus ticket for [Movant] to return to Yuma, Arizona. He also said one time he was offered $3,000 to cross drugs into the United States and would be paid $5,000 for longer trips. [Movant] stated he had declined the offer to transport drugs for pay. He denied having knowledge of the drugs found in the truck or agreeing to cross drugs into the United States.
While [Movant] was being transported to the detention facility, he stated he was recruited by a drug trafficker known as Zanny Elizabeth Castro. Castro told [Movant] she would buy him a
vehicle that would need to be placed into his name. [Movant] would then need to cross the vehicle to create a normal crossing pattern, before he could transport drugs. Castro stated she would pay him $500 for every trip. [Movant] stated after he discussed this with Castro, he declined her offer. [Movant] indicated Castro lives in Mexico but works as an agricultural foreman in Arizona and uses a yellow bus to transport drugs.(CR Doc. 166 at 3-4.)
On June 13, 2017, Movant was indicted with importation of 500 or more grams of methamphetamine (Count I) and possession of the same with intent to distribute (Count II). (CR Doc. 9 (Indictment).) Movant was convicted on both counts at the conclusion of a three-day trial and sentenced to concurrent prison terms of 151 months and 60 months of supervised release. (CR Docs. 84 (Verdicts); 171 (Judgment); see CR Docs. 108 (Transcript, Trial - Day 1), 109 (Transcript, Trial - Day 2), 110 (Transcript, Trial - Day 3).)
On April 29, 2020, the Ninth Circuit Court of Appeals affirmed the judgment on direct appeal. (COA Doc. 57 (Memo. Decision); see COA Docs. 21 (Opening Brief); 31 (Response); 48 (Reply).)
United States v. Gilmore, 811 Fed.Appx. 997 (9th Cir. 2020).
On November 16, 2020, the United States Supreme Court denied certiorari. (COA Docs. 64 (Petition), 65 (Denial).)
II. Motion to Vacate, Set Aside, or Correct Sentence.
On January 4, 2021, Movant timely filed the instant motion under 28 U.S.C. § 2255, asserting five grounds for a new trial. (Doc. 1; see id. at 12.) Ground One claims the government violated Movant's due process and Sixth Amendment rights by failing to provide him an attorney after his arrest and allowing statements he made to law enforcement to be admitted at trial. (Id. at 4.) The remaining four grounds claim Movant's trial counsel, Assistant Federal Public Defender (“AFPD”) Susan Anderson, was ineffective because she did not: (a) object to or file a motion to suppress the testimony of the “DTO agent” (the government's expert witness on drug-trafficking organizations) (Ground Two); (b) request a continuance so that a psychiatrist could assess Movant's competency (Ground Three); (c) communicate with Movant about “discovery” (Ground Four); and (d) challenge text messages between Movant and “D-Rafa” introduced at trial. (Ground Five). (Id. at 5-9.)
The motion is timely because it was filed within one year of the denial of certiorari on November 16, 2020. See 28 U.S.C. § 2255(f)(1) (requiring § 2255 motions to be filed within one year of thejudgment becoming “final” (subject to exceptions not applicable here)); Clay v. United States, 537 U.S. 522, 527 (2003) (stating a judgment is “final” upon the denial of certiorari).
According to Movant, “D-Rafa” refers to the daughter of Rafa Casear Gonzalez, the owner of the truck the methamphetamine was found in. (Doc. 1 at 9.)
The claim of Ground Five was asserted in paragraph 13 of the Motion (“Is there any ground in this motion that you have not previously presented in some federal court?”). (Doc. 1 at 9.) The Court construes this claim as a fifth ground for relief, notwithstanding that it was not expressly designated as such in the Motion. See United States v. Jackson, 21 F.4th 1205, 1216 (9th Cir. 2022) (“Pro se [§ 2255] motions from prisoners are to be liberally construed.”). Both parties address the claim in their briefs. (See Doc. 28 at 1-2, 12; Doc. 31 at 2.)
In response, the government argues the Motion should be dismissed because Ground One was resolved in favor of the government on direct appeal and therefore may not serve as a ground for relief in a motion under § 2255, and Grounds Two through Five are meritless under Stricklandv. Washington, 466 U.S. 668 (1984). (Doc. 28.)
In reply, Movant appears to concede all but Ground Three to the government. (See Doc. 31 at 2.) Movant states he “declines to further argue Ground One and Ground Two because these issues were raised on direct appeal and thus cannot be raised in a 2255 motion” and “declines to further argue Ground Four and Ground Five because [he] is unable to prove a negative [and] in order to prevail in a 2255 motion, actual evidence supporting a petitioner's motion must be presented.” (Id.) “Ground Three remains the basis for [his] claim that he is being held in violation of the Constitution.” (Id.; see id. at 2-12 (Arguments); id. at 14-22 & Docs. 31-1, -2, -3 (Exhibits).) Notwithstanding the above, the Court will address the merits of Grounds Two through Five.
III. Law.
A. Standard for Relief.
“A federal prisoner may collaterally attack the legality of his conviction or sentence through a motion to vacate, set aside, or correct his sentence under § 2255.” United States v. Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022); see also Daniels v. United States, 532 U.S. 374, 377 (2001) (explaining § 2255 is “a postconviction remedy for federal prisoners”). A federal prisoner may seek relief on the ground that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). If the court finds the prisoner is entitled to relief, it must vacate and set aside the judgment and “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).
B. Claims Precluded.
In general, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.”). Claims of ineffective assistance of counsel, however, may be raised on collateral review, regardless of whether they were raised on direct appeal. Massaro, 538 U.S. at 504 (“[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.”); see also Jackson, 21 F.4th at 1212 (“Ineffective assistance of counsel claims may be brought in collateral proceedings under § 2255.”).
C. Law of the Case.
“Under the ‘law of the case' doctrine, ‘a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.'” United States. v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997); see Musachhio v. United States, 577 U.S. 237, 244-45 (2016) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (internal quotation marks and citations omitted)). Thus, a claim “expressly rejected” on direct appeal “cannot be the basis of a § 2255 motion.” United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985); see Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975) (“Issues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255.”); United States v. Ramirez, 327 Fed. App'x 751, 752 (2009) (holding defendant was “barred from using a § 2255 motion to relitigate issues decided on direct appeal” (citing Redd, 759 F.2d at 701)); Loyal v. United States, No. CV-14-02208-PHX-GMS, 2016 WL 4473065, at *3 (D. Ariz. Aug. 25, 2016) (“‘Issues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255.'” (quoting Egger, 509 F.2d at 748)). See also Askins v. U.S. Dep 't of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018) (“The doctrine applies most clearly where an issue has been decided by a higher court.”). A deviation from the law of the case is an abuse of discretion unless the court finds:
(1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result.United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999) (citation omitted).
IV. Analysis.
A. Ground One was decided against Movant on direct appeal and therefore cannot be asserted as a basis for relief in the present § 2255 motion.
In Ground One, Movant claims his due process and Sixth Amendment rights were violated because (1) he was not provided an attorney when he requested counsel during his initial interrogation by law enforcement and (2) statements he made during a second interrogation that had allegedly been procured through “deceiving tactics” and “psychological coercion” (i.e., Movant being told by law enforcement that he “needed” to waive his Miranda rights so they could “ask him questions for the booking sheets”) were found to be admissible at trial. (Doc. 1 at 4.) Additionally, Movant asserts counsel “failed to argue that just because Movant prolonged [the] 2nd interview [did not mean] that [he] was guilty.” (Id.) Movant concedes that the “issues [in Ground One] were raised on direct appeal and thus cannot be raised in a 2255 motion.” (Doc. 31 at 2.) The trial record confirms Petitioner's claim was raised on direct appeal.
Miranda v. Arizona, 384 U.S. 436 (1966).
1. Factual Background & Procedural History.
On August 11, 2017, the defense filed a pre-trial Motion to Suppress Statements and Request for Voluntariness Hearing. (CR Doc. 20.) Therein, the defense sought suppression of statements Movant made to law enforcement while in custody shortly after his arrest on the grounds that “they were custodial statements elicited after [he] had invoked his right to counsel” and “any subsequent, purported waiver of his Fifth Amendment and Miranda rights after his invocation of his right to counsel was not valid.” (Id. at 1.) At a hearing on the motion on September 7, 2017, the District Court heard testimony from Customs & Border Patrol (“CBP”) Officer Francisco Soto and Homeland Security Investigations (“HSI”) Special Agents Patrick Sheridan and Tracey Crawford, among others. (CR Doc. 85.) On September 11, 2017, the District Court issued an order denying the motion in part and granting it in part. (CR Doc. 67.) Therein, it found Movant had made “incriminating statements to law enforcement in three separate circumstances”: (1) an initial interrogation by Agents Sheridan and Crawford, (2) a second interrogation by Agents Sheridan and Crawford, and (3) during his transport to the Yuma County Jail by Agent Sheridan. (Id. at 4-9.) The District Court summarized these encounters and other relevant facts as follows:
[ Arrest & Detention ]
On May 16, 2017 at 2:35pm, Defendant James Gilmore drove a truck into the United States through the San Luiz, Arizona Port of Entry. Customs and Border Protection (CBP) officers found evidence of contraband in the spare tire of the truck. CBP officers handcuffed Mr. Gilmore and escorted him to the secondary inspection area. Mr. Gilmore told the CBP officer that he worked as a hay loader and was driving to Yuma. Mr. Gilmore said that the truck was owned by a mechanic in Mexico. The CBP officers found a plastic bag with methamphetamine in Mr. Gilmore's pocket, after which they escorted Mr. Gilmore to a holding cell. Meanwhile, other officers confirmed that the spare tire in Mr. Gilmore's truck contained forty-seven pounds of Methamphetamine.
At some point, CBP Officer Soto visited the cell to take Mr. Gilmore's intake photo. Soto recognized Mr. Gilmore from a previous encounter at the border. Mr. Gilmore claims in his briefing that Officer Soto told him that he should “work with the Feds-that if he worked with them he would probably go home.” Mr. Gilmore also claims that Officer Soto later returned to the cell and encouraged Mr. Gilmore to work with the special agents before his
transfer to the county jail. Officer Soto said that they had found a lot of drugs in the spare tire and that other people were released to go home after they spoke with agents and told them truth. Mr. Gilmore claims that Special Agent Sheridan then came to the holding room and said that he heard from Officer Soto that Mr. Gilmore wanted to talk. Mr. Gilmore said, “I guess.” Special Agent Sheridan said that it could take a few days to get an attorney, and that they might be able to clear up the problem now if Mr. Gilmore revoked the invocation of his rights.
At hearing, Officer Soto testified that he took Mr. Gilmore's photo and asked if Mr. Gilmore remembered their previous encounter. He further said, “well you just got to be honest.” He then asked Mr. Gilmore what he did for work, but that there was no other interchange between them.
[ First Interrogation ]
At 5:40pm, Mr. Gilmore was escorted to an office for questioning with Homeland Security Investigations Special Agents Crawford and Sheridan. After brief introductions, Agent Crawford asked “Do you have an idea of why you're here?” and Mr. Gilmore responded, “Somewhat. I mean, I knew I was - that thing I was supposed to throw away in my pocket but I - I didn't Set it thrown away, like, I supposed to. I forgot about it.” The special agents ien advised Mr. Gilmore of his Miranda rights. When they asked, “Would you like to speak with us or would you rather speak with an attorney?” Mr. Gilmore asked whether he was beingheld for the bag in his pocket, and when the special agents stated that the CBP officers discovered Methamphetamine in the spare tire, he said, “I think I . . . wanna speak with attorney I think.” As the special agents ended the interrogation, Mr. Gilmore made several unsolicited statements about his truck and his intended destination. Agent Sheridan then asked standard booking questions and escorted Mr. Gilmore to a holding cell. During questioning, Mr. Gilmore noted that he was experiencing stomach pain and asked for Tylenol and to see a doctor. The special agents told him that he could see a doctor when they transferred him to the county jail. The facts of the first interrogation are undisputed.
The videotapes taken of persons accessing Mr. Gilmore's holding cell show no interaction between Mr. Gilmore and Mr. Soto after he was removed from his holding cell and invoked his right to an attorney. But, according to testimony, at 6:27pm, someone called Agent Crawford and told her thatMr. Gilmore wanted to speak with her and Agent Sheridan. After deliberating about whether a suspect could revoke their right to have an attorney, the special agents determined that Mr. Gilmore could speak with them, and they escorted Mr. Gilmore back to their office.
[ Second Interrogation ]
The parties do not dispute the details of the second interview. At 6:47pm, Special Agent Crawford said to Mr. Gilmore, “you asked to speak with us again and to un-invoke your rights and you wanted to talk to us.” Mr. Gilmore responded, “Mm-hm” and nodded his head in agreement. The special agent then read the Miranda warnings. Mr. Gilmore said, “Yeah I'll wave my rights.” He took a written document listing his rights, initialed each right that he was waving, and then signed and dated the document. The special agents then conducted an interrogation for one hour.
[ Transport to County Detention Center ]
After the interrogation, Special Agent Sheridan escorted Mr. Gilmore to the Yuma County detention center. Agent Sheridan testified that Mr. Gilmore made several unsolicited statements during the drive, including information about a drug trafficker who recruited him and the process and price to traffic drugs. Mr. Gilmore stated that he rejected this offer.(Id. at 1-3.)
A copy of the Statement of Rights Movant signed is in the record. (Doc. 31-2 at 61.)
The District Court suppressed Movant's statement during the first interrogation that he was in custody because of the methamphetamine (the “thing”) found in his pocket because this statement was not preceded by any Miranda warnings. (Id. at 4-5.) However, the District Court found that Movant's other statements during the first interrogation, as well as his statements during transport to the county jail, were unsolicited and therefore denied Movant's request to suppress them. (Id. at 5, 9.) The Court also denied Movant's request to suppress his statements made during the second interrogation, finding that he had knowingly and intelligently waived his rights before making them. (Id. at 9.) Additionally, it found that Movant's statements were voluntary, noting he was “in custody for a relatively short amount of time with water and snacks” and, “[a]lthough he was in some pain, he was offered immediate medical attention and declined it.” (Id. at 10.) It further noted his “demeanor in the videotaped interview did not suggest that he was in sufficient pain to render his statements involuntary” and that he “independently chose to speak with special agents and delayed an opportunity to receive medical attention.” (Id.)
On direct appeal, Movant claimed that the District Court erred in denying his motion to suppress, alleging there had been no valid Miranda waiver and that his statements were involuntary. (COA Doc. 21 at 33-41.) The Court of Appeals disagreed, finding no clear error or abuse of discretion in the denial of Movant's motion to suppress. Gilmore, 811 Fed. App'x at 999. It concluded that “[a]fter reinitiating contact with border patrol agents, [Movant] knowingly, intelligently, and voluntarily waived his previously invoked Miranda rights, orally and in writing.” Id. Additionally, noting the absence of a “showing of coercive conduct or indication of a ‘severe intellectual impairment,'” it concluded “the agents' references to lenience and admonishments to be truthful did not render [Movant's] statements involuntary” and that Movant's “claim of coercion due to stomach pain [was] undermined by [his] refusal of offers to obtain medical assistance.” Id.
2. Discussion.
Because the issues underlying Ground One were resolved against Movant on direct appeal, the law-of-the-case doctrine bars Movant from obtaining relief on Ground One in the present collateral proceeding. Here, Movant claims his right to counsel was violated because he had “requested an attorney during the initial interview” but was not provided one. (Doc. 1 at 4.) However, the Court of Appeals found that Movant had subsequently waived his “previously invoked Miranda rights.” Id. Movant also claims his due process rights were violated because his statements during the second interrogation were admitted at trial. (Id.) However, the Court of Appeals found “no clear error or abuse of discretion in the district court's decision to deny suppression of [Movant's] post-arrest statements.” Id. Movant does not show, much less allege, any circumstance justifying a departure from the law of the case. Thus, Movant may not assert Ground One as a basis for relief in the present proceeding. See Redd, 759 F.2d at 701; Egger, 509 F.2d at 748; see also United States v. Moses, 642 F.Supp.2d 1216, 1223 (D. Idaho 2009) (“The fact that a litigant may state an issue in different terms in his § 2255 proceeding from the manner in which it was presented on appeal does not allow collateral review.”). Accordingly, the Court recommends Ground One be denied and dismissed with prejudice.
Movant writes that counsel “also failed to argue that just because Movant prolonged [the] 2nd interview [it] was not a sign or indication] that Movant was guilty. Movant's excit[ed] utterance was only a way for Movant to attempt to deal with his emotional stress, not an act of guilt.” (Doc. 1 at 4.) Liberally construed, Movant appears to assert counsel should have modified closing argument regarding Movant's motives for talking with agents. Movant fails to allege, much less demonstrate, that there is a substantial likelihood that the outcome of trial would have been different had counsel raised this argumente.g., a substantial likelihood that the persuasive power of this particular argument would have overcome other evidence of guilt that had been presented at trial-and therefore fails to demonstrate ineffectiveness. See Section IV.B.1, infra (setting forth the standard for assessing ineffective-assistance claims); United States v. Self, 100 F.Supp.3d (D. Ariz. 2015) (‘“Because it is unlikely that the outcome would have been different, trial counsel was not ineffective for failing to make the arguments identified by Movant.”); Moore v. Chrones, 687 F.Supp.2d 1005, 1035 (C.D. Cal. 2010) (“Petitioner's allegations are too vague, conclusory, and lacking in factual support to establish ineffectiveness by either of his trial counsel.”); see also United States v. Rabanales-Casia, Nos. CV-15-01678-PHX-DGC (ESW), CR-11-01622-PHX-DGC, 2017 WL 1629137, at *5 (D. Ariz. Mar. 21, 2017) (rejecting § 2255 movant's ineffective-assistance claim where claim was not “sufficiently developed” for movant's failure to show a “reasonable attorney” would have pursued the course of action proposed by movant and a “‘substantial, not just conceivable' likelihood of a different result” had the attorney done so), adopted by 2017 WL 1550438 (D. Ariz. May 1, 2017).
B. Grounds Two through Five are meritless under Strickland.
Movant claims that his trial counsel, AFPD Susan Anderson, was ineffective because she did not: (a) object to or file a motion to suppress the testimony of the “DTO agent” (the government's expert witness on drug-trafficking organizations) (Ground Two); (b) request a continuance so that a psychiatrist could assess Movant's competency (Ground Three); (c) communicate with Movant about “discovery” (Ground Four); and (d) challenge text messages between Movant and “D-Rafa” introduced at trial. (Ground Five). The Court addresses the merits of each ground in turn below.
Ms. Anderson and co-counsel, AFPD Benjamin Good, represented Movant at trial. (See CR Docs. 108 at 2, 109 at 2, 110 at 2.) (See also CR Docs. 5, 29 (notices of appearance).) At sentencing, Movant was represented by CJA Attorney Michael Bresnehan. (See CR Doc. 169.) (See also CR Doc. 92 (minute entry appointing Mr. Bresnehan).)
1. Law.
“[T]he right to counsel is the right to the effective assistance of counsel.” Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a violation of this right, a movant must show: (1) that counsel's performance “fell below an objective standard of reasonableness” as measured by “prevailing professional norms” and (2) prejudice, i.e., “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Thus, to establish deficient performance, the movant “must rebut this presumption by proving that his attorney's representation 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 establish prejudice, the movant must show “a substantial, not just conceivable, likelihood of a different result.” Kayer v. Shinn, 141 S.Ct. 517, 523 (2020) (internal quotation marks and citations omitted).
“Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. Vague or conclusory allegations unsupported by specific factual allegations to support them are insufficient to establish ineffectiveness. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (“Greenway's cursory and vague [ineffective-assistance] claim cannot support habeas relief.”); Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (“Jones's conclusory suggestions that his trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation.”); Moore v. Chrones, 687 F.Supp.2d 1005, 1035 (C.D. Cal. 2010) (“Petitioner's allegations are too vague, conclusory, and lacking in factual support to establish ineffectiveness by either of his trial counsel.”); United States v. Quintero-Araujo, 343 F.Supp.2d 935, 946 (D. Idaho 2004) (rejecting ineffective-assistance claim where § 2255 motion was “devoid of any facts from which the court can conclude that she suffered ineffective assistance of counsel”).
2. Ground Two.
Movant claims Ms. Anderson was ineffective because she did not object to or file a motion to suppress the testimony of the government's expert witness, HSI Special Agent Francisco Gonzalez, who testified on the structure and operations of drug-trafficking organizations. (Doc. 1 at 5; see CR Doc. 108 at 123-164.) Movant asserts that Agent Gonzalez's testimony consisted of “mere opinion,” “theor[ies],” and “his belief,” and did not regard “facts about Movant's case.” (Doc. 1 at 5.) Movant further asserts that the “only thing [Agent Gonzalez] accomplished] was influencing] the jur[y's] mind about Movant.” (Id.) Movant claims that but for Ms. Anderson's “unprofessional errors [in] not challenging the testimony of [Agent Gonzalez],” there is a “reasonable probability” that the “result of the proceeding would have been different.” (Id.)
a. Procedural History.
On August 28, 2017, Ms. Anderson filed a Motion in Limine to Preclude or Limit Expert Testimony Re: Drug Trafficking Organizations, arguing such testimony lacked probative value and was unfairly prejudicial. (CR Doc. 39.) At a Daubert hearing on September 11, 2017, Agent Gonzalez testified to his qualifications and knowledge of drugtrafficking organizations. (CR Doc. 87 at 16-38.) The Court concluded Agent Gonzalez had “sufficient experience to testify as to opinions about what happens at the port of entry.” (Id. at 38.) However, the Court limited his testimony to opinions regarding the “transport of contraband over the border.” (Id. at 40.) On appeal, Movant claimed the Court abused its discretion in permitting Agent Gonzalez's testimony. (COA Doc. 21 at 47-50.) The Court of Appeals disagreed, finding “no abuse of discretion in allowing [Agent Gonzalez] to testify, within limitations, on the structure and operation of drug trafficking organizations, including use of ‘blind mules.'” Gilmore, 811 Fed. App'x at 999.
b. Analysis & Conclusion.
Movant fails to show both deficient performance and prejudice with respect to Ms. Anderson's handling of Agent Gonzalez's testimony.
First, Movant's allegation that Ms. Anderson raised no challenge to Agent Gonzalez's testimony is false. As noted, Ms. Anderson sought to have this testimony excluded in her pre-trial motion in limine. (CR. Doc. 39.) Movant does not allege, much less demonstrate, that the motion in limine or the arguments therein fell below objective standards of reasonableness. Given the lack of specific factual allegations to support such findings, Movant fails to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy'” and that it was “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; see Greenway, 653 F.3d at 804; Jones, 66 F.3d at 205l; Moore, 687 F.Supp.2d at 1035; Quintero-Araujo, 343 F.Supp.2d at 946.
Moreover, because the Court of Appeals concluded Agent Gonzalez's testimony was admissible-a determination that is binding here as the law of the case, see Musachhio, 577 U.S. at 244-45; Alexander, 106 F.3d at 877-Movant cannot show prejudice from any allegedly deficient performance by Ms. Anderson in failing to challenge its admissibility. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”); Ramirez, 327 Fed. App'x at 752 (“[E]ven assuming the failure of Ramirez's attorney to object to the admission of this testimony is deficient performance, Ramirez cannot show prejudice because the . . . testimony was admissible.”). What is more, although Ms. Anderson did not personally raise any objections to Agent Gonzalez's testimony during trial, her co-counsel, Mr. Good raised four; however, each was overruled. (See CR Doc. 108 at 132, 138-39, 163.) Movant does not allege or show a substantial likelihood that the objections would have been sustained had Ms. Anderson raised them herself, nor does Movant proffer any likely meritorious objections that could have been raised. Cf. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (rejecting ineffectiveassistance claim where petitioner “d[id] not identify what evidence counsel should have presented which would have [supported his defense]”). Therefore, Movant fails to allege sufficient facts to support his claim that there is “reasonable probability” that but for Ms. Anderson's alleged “errors [in] not challenging the testimony of [Agent Gonzalez] the result of the proceeding would have been different” (doc. 1 at 5). See Greenway, 653 F.3d at 804; Jones, 66 F.3d at 205l; Moore, 687 F.Supp.2d at 1035; Quintero-Araujo, 343 F.Supp.2d at 946.
Accordingly, because Movant fails to make a sufficient showing on either prong of Strickland in Ground Two, the Court recommends Ground Two be denied and dismissed with prejudice for lack of merit.
2. Ground Three.
Movant claims Ms. Anderson was ineffective because she “failed to request a continuance so [he] could [be] evaluated by a[n] independent psychiatrist, not a medical doctor.” (Doc. 1 at 7.) Movant alleges that Ms. Anderson was “aware” that he had been evaluated and diagnosed as “incompetent” by a medical doctor and that he suffered from early stages of dementia. (Id.) Movant further alleges Ms. Anderson's “knowledge [of such] went as far as telling [him] that she didn't think [he] should testify because he was incompetent and would lose his case.” (Id.) Movant expands these arguments in his reply, asserting that Ms. Anderson (1) “was concerned about [his] competency before, during, and after she received a competency evaluation, yet at no time did she ask the Court for a competency hearing,” and (2) “abdicated her responsibility as the defendant's advocate when she declined to seek a competency hearing.” (Doc. 31 at 6-7.) He further asserts her “performance violated Supreme Court rules and prejudiced [him].” (Id. at 10-11.)
a. Ms. Anderson's Responses to Interrogatories.
With its Response, the government submits Ms. Anderson's responses to interrogatories regarding Ground Three. (Doc. 28-1.) Ms. Anderson confirmed she was “aware” that Movant “may be suffering from the early stages of dementia,” noting that he had shared with her on August 25, 2017 “that his father had passed away from dementia and that he himself had been diagnosed by a doctor in Yuma with a possible chance of dementia.” (Id. at 5.) She states that the defense team “sought to obtain those medical records but was not able to.” (Id.) She does not state why. During subsequent interviews with members of Movant's family, Ms. Anderson learned that several of them had “witnesses cognitive decline and episodes of confusion and believed [Movant] may have early dementia,” which, according to Ms. Anderson, “raised a concern as to [Movant's] competency.” (Id.; see Doc. 31-2 at 60, 62 (summary of interviews).)
Thereafter, Ms. Anderson retained a neuropsychologist, Dr. Marc Walter, Ph.D., to evaluate Movant and opine on his competency to stand trial and testify at trial, as well as any other relevant “deficits and impairments.” (Id.) Dr. Walter evaluated Movant on September 1, 2017, less than two weeks before trial. (Id.; see Doc. 31-2 at 1-5.) Dr. Walter noted Movant had various cognitive deficits, including mild neurocognitive disorder, which he opined was partially due to “the delayed effects of methamphetamine addiction and probable cerebrovascular insufficiency,” as well as “impaired” memory and various deficits in speech and language. (Id. at 1-5.) Despite these limitations, Dr. Walter ultimately concluded that Movant was “competent to stand trial or to plead guilty if he so chooses.” (Id. at 1.) He further concluded Movant could “understand the nature and consequences of the proceedings against him and to assist properly in his defense” and that he “has a rational and factual understanding of the consequences of pleading guilty.” (Id.) According to Ms. Anderson, Movant “did not express disagreement with Dr. Walter's conclusion as to competency before trial or express a concern that he was not competent.” (Id. at 6.)
b. Law.
Due process prohibits a defendant from being tried or convicted while he is incompetent to stand trial. See Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966). A defendant is “competent to stand trial if he has a rational and factual ‘understand of the proceedings' and can communicate with counsel ‘with a reasonable degree of rational understanding.'” Rogovich v. Ryan, 694 F.3d 1094, 1104 (9th Cir. 2012) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). “Trial counsel has a duty to investigate a defendant's mental state if there is evidence to suggest that the defendant is impaired.” Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003). “Counsel's failure to move for a competency hearing violates the defendant's right to effective assistance of counsel when ‘there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.'” Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)); see also Dixon v. Ryan, 932 F.3d 789, 802 (9th Cir. 2019) (“[T]o succeed on a claim that counsel was ineffective for failing to move for a competency hearing, there must be ‘sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt defendant's competency' and ‘a reasonable probability that the defendant would have been found incompetent.'” (quoting Hibbler v. Benedetti, 693 F.3d 1140, 1149-50 (9th Cir. 2012)).
c. Analysis & Conclusion.
When Ms. Anderson became aware that Movant may have a condition affecting his competency, she exercised reasonable diligence by retaining a professional who could properly assess Movant's competency. Dr. Walter did so at her request and ultimately found Movant was competent, notwithstanding that Movant did exhibit some level of cognitive dysfunction. Given this evidence of competency, Ms. Anderson did not perform deficiently in failing to pursue the matter further. See Stanley, 633 F.3d at 863 (concluding there was “insufficient evidence” of defendant's incompetence where there was no opinion from a psychiatrist that the defendant was incompetent, notwithstanding that the defendant had some “mental difficulties”); Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997) (“A reasonable tactical choice based on an adequate inquiry is immune from attack under Strickland.”).
Movant also fails to establish prejudice, which is “a reasonable probability that the defendant would have been found incompetent.” Dixon, 932 F.3d at 802. In the Traverse, Movant argues that counsel should have requested a competency hearing when she had concerns regarding Movant's competency. (Doc. 31 at 6-10.) But Movant was also examined by a second provider (Dr. John J. Toma) after trial. During a motion to determine counsel hearing, Movant's trial counsel (Michael Bresnehan) advised the Court that “I'll just say [Dr. Toma's report] doesn't help us at this point, and so I'm - I'm leaning toward withdrawing the earlier - the other motion to have him taken to Butner because I'm not sure I have grounds at this point to press that.” (CR Doc. 178 at 7-8.) The Court spoke with Movant regarding Movant's request for a new attorney prior to sentencing. Movant advised that he did not understand why counsel continued to ask him to sign a “sentencing agreement.” (Id. at 9.) Movant advised that he had “irreconcilable differences” with his attorney regarding a potential “20 to life” sentence. (Id. at 12.) Movant told the Court he did not want to delay his sentencing and stated “I'll stick with Bresnehan as an attorney, and we'll go ahead and go through sentencing.” (Id. at 13.) When the Court denied the motion for new counsel, the Court stated:
This hearing was conducted on July 30, 2018, which was after the verdict of September 19, 2017 (CRDoc. 77), but prior to sentencing on October 2, 2018 (CR Doc. 171.)
And you are apparently, for all practical purposes, you have been determined prior to trial to be competent, you're determined apparently recently to be competent. You don't offer me any reason why it is that you can't communicate with Mr. Bresnehan, other than you say you don't understand him, and you don't explain any current thing that makes any sense why you don't understand him.(Id. at 10-11.)
Here, the Court was aware of two separate reports by different medical providers. The first, by Dr. Walter, found Movant competent. The second, by Dr. Toma, very likely found Movant competent. The Court spoke with Movant prior to sentencing, which the Court may consider. See United States v. Lewis, 991 F.2d 524, 528 (9th Cir. 1993) (noting a court may consider its own interactions with a defendant, including whether “the defendant is alert,” able to testify coherently, and participating in colloquies with the court). All of the information before the Court prior to sentencing led the Court to believe Movant was competent. Movant fails to demonstrate a reasonable probability he would have been found incompetent if counsel had requested a competency hearing. See also United States v. Garza, 751 F.3d 1130, 1135-37 (9th Cir. 2014) (finding no genuine doubt about competency when there was “no clear connection between Garza's putative dementia and any negative impact on his ability to understand the proceedings or assist in his defense”).
The Court also spoke with Movant at the first motion to determine counsel hearing on July 24, 2017, where Movant requested Ms. Anderson remain his counsel. (CR. Doc. 106 at 3-4.) The Court likely addressed Movant at the second motion to determine counsel hearing on October 4, 2017. (CR. Doc. 111.) Movant declined to make a statement at sentencing. (CR Doc. 179 at 17.) Nothing from these interactions caused the Court to sua sponte conduct a competency hearing the case.
Moreover, given that Movant was adamantly against any continuances, Ms. Anderson was not ineffective for failing to request further continuances. Early in the case, on June 29, 2017, Ms. Anderson had moved for a 60-day continuance in order to have more time to prepare for trial, which the Court granted on July 10, 2017. (CR Docs. 14, 15.) Three days later, Ms. Anderson moved for a hearing on whether new counsel should be appointed and for an accelerated trial date, noting that Movant was “dissatisfied” with the continuance and desired new counsel. (CR Doc. 16.) At a hearing on July 24, 2017, Movant withdrew his request for new counsel after the Court granted his request to accelerate the trial date. (CR Doc. 18.) Ms. Anderson properly considered Movant's requests when she did not request a further continuance in the case.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.Strickland, 466 U.S. at 691.
Under the circumstances, and considering Movant's own conduct and statements, Ms. Anderson's “failure” to seek a competency hearing, a continuance for one, or another competency evaluation was not objectively unreasonable. Given that Movant adamantly opposed a later trial date, as evidenced by his immediate reaction to terminate Ms. Anderson for seeking one and his request to accelerate his trial, it was not objectively unreasonable for Ms. Anderson to not seek a further continuance. See Strickland, 466 U.S. at 691 (“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”).
Accordingly, the Court recommends Ground Three be denied and dismissed with prejudice for failure to demonstrate deficient performance by Ms. Anderson.
3. Ground Four.
In Ground Four, Movant claims Ms. Anderson was ineffective for “not communicating with [him] about his discovery.” (Doc. 1 at 8.) Movant asserts that Mr. Bresnehan, who took over the representation after trial (see supra n.9), showed Movant his “discovery.” (Doc. 1 at 8.) Movant claims that if he “would've known what his discovery pertained, he would [have] requested a continuance to seek a different avenue to support his defense.” (Id.)
Movant fails to demonstrate prejudice, i.e., a substantial likelihood that the result at trial would have been different had he known what Ms. Anderson obtained during discovery before proceeding to trial. Critically, Movant does not state what he allegedly learned from Mr. Bresnehan that he was allegedly unaware of while Ms. Anderson represented him, and why his knowledge of whatever he learned from Mr. Bresnehan would have changed the outcome at trial or in any way further his defense. Without any insight what new information Movant allegedly learned from Mr. Bresnehan, the Court has no basis to find a substantial likelihood that the jury would have reached a different verdict had Movant had this information earlier. Movant's conclusory allegations-without more specific factual allegations to support them-are insufficient to establish that Ms. Anderson's alleged failure to inform Movant on what had been obtained during discovery constituted ineffective assistance under Strickland. See Greenway, 653 F.3d at 804; Jones, 66 F.3d at 205; Moore v. Chrones, 687 F.Supp.2d 1005, 1035 (C.D. Cal. 2010) (“Petitioner's allegations are too vague, conclusory, and lacking in factual support to establish ineffectiveness by either of his trial counsel.”); United States v. Quintero-Araujo, 343 F.Supp.2d 935, 946 (D. Idaho 2004) (rejecting ineffective-assistance claim where § 2255 motion was “devoid of any facts from which the court can conclude that she suffered ineffective assistance of counsel”); United States v. Aguero, 534 F.Supp. 486, 487-88 (N.D. Cal. 1982) (“While the Court does not require allegations in minute detail in post-conviction petitions, purely conclusory allegations will not suffice.”); cf. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (rejecting ineffective-assistance claim where petitioner “d[id] not identify what evidence counsel should have presented which would have [supported the defense]”).
Mr. Bresnehan asserted that the discovery Movant indicated he was seeing for the first time consisted of laboratory reports regarding the seized methamphetamine, but that Movant did not explain how he would have used those reports to support or advance his defense. (Doc. 28-1, Ex. B, at 2-3.) Mr. Bresnehan could not recall whether Movant indicated he was seeing any other evidence for the first time. (Id.)
Moreover, Ms. Anderson states that she did in fact send copies of written discovery to Movant throughout the representation and that she discussed the evidence with him, including his recorded interviews with law enforcement. (Doc. 28-1 at 2, 6.) Ms. Anderson does not know what allegedly undisclosed discovery Movant is referring to in Ground Four. (Id. at 7.) Movant does not dispute Ms. Anderson's statements. (See Doc. 31.) As noted earlier, he concedes that he is unable to prove that Ms. Anderson did not communicate with him. (See Doc. 31 at 2 (“Defendant declines to further argue Ground Four . . . because [he] is unable to prove a negative.”).) Accordingly, the Court recommends Ground Four be denied and dismissed with prejudice for lack of merit.
4. Ground Five.
In Ground Five, Movant claims Ms. Anderson was ineffective for “not challenging or attacking the text messages that Movant had in his cell phone,” in particular, text messages from “D-Rafa,” who, according to Movant, is the daughter of Rafa Caesar Gonzalez, the owner of the truck. (Doc. 1 at 9.) Movant alleges these text messages did not “indicate any kind of drug transaction or agreement to transport any drugs” and that he “explained to agents that the owner of the truck owed [him] money for a transmission he (mechanic/owner of truck) couldn't fix.” (Id.)
Movant fails to demonstrate that Ms. Anderson's performance with respect to these text messages was objectively unreasonable. The government filed a notice of intent to admit other-act evidence, including text messages from Movant's phone. (CR Doc. 19.) Contrary to Movant's assertions, Ms. Anderson did in fact challenge the admissibility of the text messages. In response to the government's notice of intent, Ms. Anderson filed a Motion in Limine to Exclude Other-Act Evidence, including the text messages from Movant's phone. (CR Doc. 30.) In particular, Ms. Anderson sought to exclude text messages referencing “glass” (a code word for methamphetamine as alleged by the government) and “a load being ready.” (Id. at 8-10.) The Court denied the motion as to the methamphetamine that had been found in Movant's pocket and deferred ruling on the evidence. (CR Doc. 61.) At trial, the text messages were ultimately admitted through HSI Special Agent Jeffrey Hexel, who had extracted them from Movant's phone. (CR Doc. 109 at 53-71.) Ms. Anderson objected to the admission of the entire phone but was overruled. (Id. at 55.) Among the data Agent Hexel had extracted from the phone were 19 text messages between “D Rafa” and Movant on May 16, 2017 and call logs showing a total of 50 calls between them between May 10, 2017 and May 16, 2017. (Id. at 58-66.)
Since the motion in limine had not been granted, any attempts by Ms. Anderson to challenge the admissibility of the text messages during trial would have been futile; therefore, her failure to object to their admission at trial was not deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”). Ms. Anderson cross-examined Agent Hexel, albeit briefly, and confirmed that he did not actually possess the content of the phone calls, only the call logs. (Id. at 71-72.) In her closing argument, Ms. Anderson asked the jurors to presume innocence and to view the text messages from “D Rafa” in a light favorable to Movant, specifically, from the perspective of “an unknowing courier who is being used without his knowledge to drive drugs across the border.” (CR Doc. 110 at 82.)
Under the circumstances, Ms. Anderson's actions fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Movant fails his burden of demonstrating otherwise. Ms. Anderson first sought to exclude the other-act evidence altogether. When that failed, despite her well-articulated motion in limine, she did what any other reasonable attorney would do-cast the evidence in a light most favorable to her client. On this record, the Court cannot conclude Ms. Anderson's action were objectively unreasonable. Cf. Harrington v. Richter, 562 U.S. 86, 110 (2011) (“Strickland does not guarantee perfect representation, only a ‘reasonably competent attorney.'” (quoting Strickland, 466 U.S. at 687)). Accordingly, the Court recommends that Ground Five be denied and dismissed for lack of merit.
VI. Evidentiary Hearing.
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). However, the court may dismiss a § 2255 motion without a hearing “if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief.” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011). Because Movant's allegations, viewed against the record, do not give rise to a claim for relief, the Court need not hold an evidentiary hearing on the Motion. See id.
Movant did not request a hearing, but requested that he be appointed counsel should the Court decide to hold one. (Doc. 31 at 12.) Because the Court concludes an evidentiary hearing is not necessary, it need not address Movant's request.
VII. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2255 Proceedings, 28 U.S.C. § 2255. However, the district court may issue a certificate of appealability only when the movant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A [movant] satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Movant has not made either showing here. Accordingly, the Court will recommend that a certificate of appealability be denied.
VIII. Conclusion.
Because Movant is not entitled to relief on any of the asserted grounds for relief, IT IS RECOMMENDED that the Motion to Vacate, Set Aside, or Correct Sentence (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied as to all of Petitioner's claims.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.