Opinion
CV-22-01933-PHX-SPL (JZB)
06-26-2023
Terrell Maurice Mars, Petitioners, v. Russell Heisner, Respondent.
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Petitioner Terrell Maurice Mars has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.)
I. Summary of Conclusion.
Petitioner has filed a Petition for Writ of Habeas Corpus, challenging the Bureau of Prison's (BOP's) calculation of his earned time credits (FTCs) under the First Step Act of 2018 (the FSA). (Id.) Specifically, Petitioner alleges that the BOP is “[r]efusing to apply [Petitioner's FTCs] towards Pre-release/Halfway House Placement, or any other methods that that the BOP has in place, pursuant to [the FSA].” (Id. at 4.) Because the Court does not have subject matter jurisdiction to review the BOP's FSA FTC determinations, and because Petitioner's sentence has been properly calculated by BOP, the Court will recommend that the Petition be denied and dismissed with prejudice.
II. Background.
A. The FSA and Time Credits.
As an initial matter, because Petitioner's eligibility to earn and apply FTCs earned under the FSA sits at the heart of the issues raised in the Petition, the Court will provide a brief summary of the relevant statutory framework governing the earning and application of those FTCs.
On December 21, 2018, the FSA (P.L. 115-391) was enacted into law. The FSA addresses the reentry of incarcerated individuals into society. As part of the FSA, Congress directed the BOP to implement reentry initiatives, including programming and programming incentives, good-time credit, and compassionate release opportunities. Congress further directed the Attorney General to develop a risk and needs assessment system, to appropriately direct programming and programming incentives by “determining] the recidivism risk of each prisoner” and classifying “each prisoner as having minimum, low, medium, or high risk for recidivism.” 18 U.S.C. § 3632(a).
An eligible prisoner can earn 10 days (plus an additional five days if he meets the criteria for minimum or low risk of recidivism) of FSA time credits “for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A); 28 C.F.R. § 523.42(c).
Petitioner agrees he is currently a medium risk for recidivism. (Doc 1 at 4.) Petitioner is eligible to earn 10 days of FSA time credits for successful participation in recidivism programming. But, as required under 18 U.S.C. § 3632(d), he must be a “minimum or low risk” to apply those credits. See Section B(4).
Time credits earned under 18 U.S.C. § 3632(d)(4) “shall be applied toward time in prerelease custody or supervised release” and “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Under 28 U.S.C. § 3624(g), an “eligible prisoner” for the application of FTCs to prerelease custody or supervised release is defined as one who meets the following four criteria:
(A) the prisoner must have earned FTCs;
(B) the prisoner must have demonstrated “recidivism risk reduction or has
maintained a minimum or low recidivism risk during their term of imprisonment”;
(C) the prisoner “has had the remainder of their imposed term of imprisonment computed under applicable law”; and
(D) the prisoner has either (I) “been determined under the System to be a minimum or low risk to recidivate pursuant to the last two reassessments of the prisoner,” or (II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden after the warden has determined the prisoner meets certain criteria.See 28 U.S.C. § 3624(g)(A)-(D). See also LaPuente v. Derr, No. CV 22-00119 LEK-WRP, 2023 WL 3821136, at *5 (D. Haw. June 5, 2023) (finding that an inmate who had reduced his recidivism risk level from high to medium was still ineligible to apply earned FTCs under § 3624 because the inmate had not maintained a minimum or low recidivism risk level or received approval for prerelease custody from the warden).
Specifically, the Warden must have determined that:
(aa) the prisoner would not be a danger to society if transferred to prerelease custody or supervised release;
(bb) the prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and
(cc) the prisoner is unlikely to recidivate[.]28 U.S.C. § 3624(g)(D)(II).
B. Petitioner.
On May 27, 2010, Petitioner Mars, BOP federal register number 07254-003, was sentenced in the Middle District of Georgia to serve a 240-month aggregate term for Bank Robbery, Armed Bank Robbery, and a Supervised Release Violation. (Doc. 1 at 19; Doc. 9-1, Ex. A, at 3.) Petitioner is currently incarcerated at the Federal Correctional Institution, Phoenix, Arizona (FCI Phoenix). (Doc. 9-1, Ex. A, at 3.)
C. Petitioner's Classification Hearings and Appeals.
On December 1, 2019, the BOP reviewed Petitioner's eligibility for FTCs under the FSA, and found Petitioner to be eligible. (See Doc. 9-1, Ex. A, at 3, 13.)
On April 27, 2022, Petitioner submitted a Request for Administrative Remedy Informal Resolution to his Unit Manager, asserting that he had earned “a combined total of 690 Days [in FTCs], that has not been calculated and credited towards my Pre-Release/Halfway House, or Home Confinement Placement by any BOP's Pima-A Unit Team nor by the Director of the BOP.” (See Doc. 1 at 11.) Petitioner requested for his “[e]arned [FTCs] to be applied towards Pre-Release/Halfway House or Home Confinement Placement.” (Id.) On May 20, 2022, the Unit Manager responded to Plaintiff's Request for Administrative Remedy, explaining:
A review into this matter reveals that you are a Medium Risk Level of recidivism. Per the guidance from the Regional Office, inmates who are eligible to earn credits, and those can be applied to RRC or Home Confinement if your recidivism rate is Low or Minimum. Although you are eligible to earn FTC, you cannot apply them to additional RRC or home confinement. You will, however, be able to use your FTC's for other incentives.(Id. at 12.)
On May 26, 2022, Petitioner submitted a second Request for Administrative Remedy, again asserting that the FSA permits him to apply his earned FTCs to RRC or home confinement, and requesting that his FTCs be applied toward that end. (Id. at 13.) On June 24, 2022, Warden R.A. Heisner, responded to Plaintiff's second Request for Administrative Remedy, explaining:
A review of this matter indicates that your current risk of recidivism level is Medium, as stated in the request. Therefore, earned time credits cannot be applied towards RRC or Home Confinement as a Medium risk of recidivism.
You will continue to earn time credits, just not apply them towards RRC or Home Confinement. At your next regularly scheduled progress review, your Case Manager will reassess your recidivism level based on completion of EBRR programs and/or Productive Activities. After review, if your recidivism risk level becomes Minimum or Low risk, ORE will begin to calculate your earned credit time towards application towards pre-release.(Id. at 16 (typos in original).)
On June 28, 2022, Petitioner filed an appeal of Warden Heisner's response to the Regional Director, again asserting that “inmate Mars[] should be credited with the [FTCs] of 690 days (23 months) towards RRC or Home Confinement, whether his recidivism risk level is High, Medium, Low, or Minimum, according to the First Step Act of Dec. 21, 2018[.]” (Doc. 1 at 17.) On August 8, 2022, Regional Director M. Rios responded to Petitioner's appeal, stating:
An investigation concludes that on May 27, 2010, you were sentenced by the Honorable Land in the Middle District of Georgia to serve a 240-month aggregate term for 18:2113, Bank Robbery and 18:2113 (A)(D), Armed Bank Robbery and a Supervised Release Violation. You have a release date of October 31, 2025, via Good Conduct Time release. You are currently FTC eligible based on your instant offense and FSA ineligible due to your Medium PATTERN score and thus ineligible to apply FTCs to your sentence. You have FSA needs in Anger/Hostility, Antisocial Peers, Cognitions, Substance Abuse and Trauma. An inmate is eligible to earn FTC if that inmate is sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or is in the custody of the BOP, unless the inmate is serving a term of imprisonment for a disqualifying offense specified in 18 U.S.C. § 3632(d)(4)(D). Thus, because you have a Medium PATTERN score you cannot apply FTCs at this time. However, you will receive 54 days per year of Good Conduct Time (GCT), which has already been applied to your current Projected Release Date (PRD) and sentence computation.
Although the Bureau does not have the authority to award FSA Time Credits to inmates who are ineligible under the FSA, such inmates may still earn other benefits for successfully participating in the many other types of programming offered by the Bureau of Prisons.
Inmates' ineligible for applying FSA Time Credits may still receive incentives such as increased privileges (commissary, visiting, and telephone) for participation in Evidence-Based Recidivism Reduction (EBRR) and Productive Activity (PA) Programs. As such, your Unit Team will continue to assess your programming needs during your regularly scheduled Program Review meetings and recommend pertinent classes so that you can address your FSA needs. Moreover, as you get 17-19 months to release, institution staff will utilize Program Statement 7310.04, Community Corrections Center (CCC) Utilization and Transfer Procedure, and the criteria set forth in the Second Chance Act of 2007 in making' an RRC decision. Pre-release placement in an RRC is a privilege and not a right and is recommended at the discretion of staff.
Your request for administrative remedy has been denied.(Doc. 1 at 19.)
On August 24, 2022, Petitioner submitted a Central Office Administrative Remedy Appeal of the Regional Director's decision. (Id. at 20.) Therein, Petitioner argued that, under the FSA,
an inmate only has to be ELIGIBLE to Earned and Apply [FTCs] towards
RRC or HOME CONFINEMENT. The [FSA] does not state that an inmate has to be classified as a Minimum or Low Risk Recidivism level to earned and apply[FTCs] to RRC or Home Confinement, but only has to be qualified as ‘ELIGIBLE'. . . Thus, the BOP, should apply inmate Mars's [earned FTCs] ¶ 690 days (23 months) towards RRC, Home Confinement, or any Other Methods the BOP may have in place, due to his Eligibility in Accordance with the FSA of Dec. 21, 2018.(Id.) On October 12, 2022, Petitioner's Central Office Administrative Remedy Appeal was denied, reasoning:
We have reviewed documentation relevant to your appeal and, based on the information gathered, concur with the manner in which the Warden and Regional Director addressed your concerns at the time of your Request for Administrative Remedy and subsequent appeal. As such, our succeeding review reveals no reason to reverse the decisions rendered or elaborate further with similar conclusions as those which have already been provided in the previous levels of this appeal.(Doc. 1 at 23.)
On September 28, 2022, the BOP conducted Petitioner's most recent Program Review, and again determined Petitioner to be a medium risk for recidivism. (Doc. 9-1, Ex. A, at 3, 14.)
III. Petition.
On November 14, 2022, Petitioner initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Therein, Petitioner alleges just one claim: that the BOP is “[r]efusing to apply [Petitioner's FTCs] towards Pre-release/Halfway House Placement, or any other methods that that the BOP has in placed, pursuant to [the FSA].” (Id. at 4.)
On December 12, 2022, Respondent filed an Answer and Motion to Dismiss the Petition. (Doc. 9.) Specifically, Respondent argues that the Court lacks subject matter jurisdiction over this dispute and that Petitioner has failed to state a valid claim for relief because his sentence has been properly calculated by the BOP. (See id. at 4-9.)
Petitioner did not reply to Respondent's Answer and the deadline to do so has passed. Thus, the Petition is fully briefed. (Docs. 1, 9.) After review of the Petition, the Answer, and the associated record, the Court issues this Report and Recommendation that the Petition be denied and dismissed with prejudice.
A. Legal Standards
“Review of the execution of a sentence may be had through petition for a writ of habeas corpus under 28 U.S.C. § 2241.” United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). Section 2241 allows “the Supreme Court, any justice thereof, the district courts and any circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 28 U.S.C. § 2241(a). A district court must “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.
B. Discussion.
Respondent argues that the Court should dismiss the Petition for four reasons: (1) the Court does not have subject matter jurisdiction to review the BOP's FSA FTC determinations; (2) Section 2241 does not confer authority on the Court to compel discretionary action by the BOP; (3) Petitioner does not have a liberty interest in the application of his FSA FTCs to gain early release; and (4) Petitioner's sentence has been properly calculated. (See Doc. 9 at 4-9.) The Court will address each argument.
1. Subject Matter Jurisdiction.
Respondents first argue that the Court lacks subject matter jurisdiction to review the BOP's FSA FTC determinations. The Court agrees.
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction[.]'” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “[A] federal court may not entertain an action over which it has no jurisdiction.” Hernandez, 204 F.3d at 865 (citing Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982)). See also Magana v. Commonwealth of N. Mariana Islands, 107 F.3d 1436, 1443 (9th Cir. 1997).
[A] habeas corpus petition under 28 U.S.C. § 2241 is the appropriate mechanism by which a federal prisoner challenges
the manner, location or conditions of the execution of his sentence. The distinction between a motion to vacate, set aside or correct a sentence under Section 2255 and a habeas corpus petition under Section 2241 affects not only the type of relief fenerally available, but also whether a particular district court as jurisdiction to hear the request. Section 2255 motions must be heard in the district court in which the federal prisoner was convicted and sentenced, whereas habeas corpus petitions under Section 2241 may be heard in the district court in which the federal prisoner is confined.Perez v. Dulgov, No. CV-22-00405-TUC-JGZ (BGM), 2022 WL 18395980, at *2 (D. Ariz. Dec. 5, 2022), report and recommendation adopted, No. CV-22-00405-TUC-JGZ, 2023 WL 315307 (D. Ariz. Jan. 19, 2023) (quoting Crayton, 622 F.Supp.2d at 978 (citing Hernandez, 204 F.3d at 865)).
Here, Petitioner challenges the BOP's determination that he is currently ineligible to apply his FTCs earned under the FSA towards prerelease custody or home confinement. (See Doc. 1.) It is undisputed that Petitioner's eligibility for application of his FSA FTCs toward prerelease custody is governed by 18 U.S.C. § 3624(g). And although an individual is typically authorized to seek judicial review of an agency decision under Section 702 of Title 5 of the United States Code (See 5 U.S.C. § 702), and Courts will review those decisions to determine whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S.C. § 706(2)(A)), review of the FSA FTC determinations at issue here is not permitted because congress has exempted the relevant statute from review (See 18 U.S.C. § 3625).
Specifically, in 18 U.S.C. § 3625, Congress stated that “[t]he provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter.” The Ninth Circuit has confirmed that review of the BOP's decisions under the relevant subchapter is improper, stating “[t]here is no ambiguity in the meaning of 18 U.S.C. § 3625. The plain language of this statute specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-706, do not apply to ‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). The Court in Reeb further explained that the nature of a petitioner's specific challenge was critical.
Although judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority, Reeb's habeas petition alleges only that the BOP erred in his particular case. Because the district court lacked jurisdiction to adjudicate the merits of Reeb's habeas petition, we vacate its judgment and remand with instructions to dismiss for lack of jurisdiction.Reeb, 636 F.3d at 1228-29.
Importantly, like the petitioner in Reeb, Petitioner does not assert that the BOP's decision not to apply his FTCs toward prerelease custody is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. (See generally Doc. 1.) Instead, Petitioner challenges only that the BOP “refusing” to apply his FTC credits toward Petitioner's prerelease custody. (Id.)
Because Petitioner's claim that the BOP has errantly “refus[ed] to apply [Petitioner's] Earned Time Credits [FTCs] towards pre-release/Halfway house Placement” necessarily challenges the BOP's decisions made under § 3624(g), and review of those decisions are precluded under § 3625, the Court lacks jurisdiction to review Petitioner's claim and the Petition must be dismissed.
2. Lack of Authority to Compel Discretionary BOP Action.
Respondent next argues that “the Court should dismiss the petition for failure to state a claim because there is a lack of statutory authority under § 2241 to compel Bureau discretionary (sentence end-phase programming) action via declaratory and advisory opinions.” (Doc. 9 at 5.) The Court agrees.
Whether to permit an inmate to complete the end-phase of their sentence outside of formal prison custody is a matter of discretion left to the BOP. See Smallwood v. Thompson, 2021 WL 5112663 (E.D. Cal. Nov. 3, 2021) (finding “whether or not to grant Petitioner early release” pursuant to the FSA is “a matter within the BOP's discretion.”). And although application of an inmates FSA FTCs may effectively move up the date that inmate is eligible to be considered for prerelease custody, application of those FTCs do not compel the BOP to allow that inmate to participate in prerelease custody. Id. “District courts interpreting this provision have uniformly held that designation and placement decisions made by the BOP, including whether an inmate is granted home confinement, are not reviewable by the district court.” Arreola v. von Blanckensee, No. CV-20-00351-TUC-DCB (JR), 2022 WL 18865120, at *4 (D. Ariz. Oct. 3, 2022), report and recommendation adopted, No. CV-20-00351-TUC-DCB, 2023 WL 2242853 (D. Ariz. Feb. 27, 2023). See also Wilcox v. Merlak, No. 1:19-cv-01410-NONE-SKO (HC), 2020 WL 996630, at *3 (E.D. Cal. Mar. 2, 2020) (“Thus, Petitioner's challenge to the BOP's discretionary decision with respect to whether and when he is eligible for home confinement placement . . . is not reviewable by this Court.”); United States v. Robledo, No. 18-CR-2190-AJB, 2020 WL 2542641, at *7 (S.D. Cal. May 19, 2020) (“the decision to grant or deny home confinement is within the discretion of BOP and not subject to judicial review.”).
Here, Petitioner is only challenging the BOP's decision to “refuse” to apply his FSA FTCs toward accelerating his eligibility for prerelease custody. (See Doc. 1.) But even if the Court were to direct the BOP to immediately apply Petitioner's FSA FTCs and accelerate his prerelease custody eligibility, the BOP would be under no obligation to grant Petitioner the prerelease custody assignment he ultimately seeks. See Matthews v. Segal, 2023 WL 3605481, at *1 n.2 (D. Minn. May 9, 2023) (“. . . habeas corpus may be invoked only to challenge the legality of the fact or duration of a prisoner's custody, not the location in which the prisoner is held in custody. See Spencer v. Haynes, 774 F.3d 467, 469-71 (8th Cir. 2014). Petitioner therefore cannot claim in this proceeding that he is entitled to apply any earned time credits towards accelerating the date that he is placed in prerelease custody.”).
Therefore, because § 2241 does not convey authority to the Court to compel the BOP to grant prerelease custody to Petitioner, any relief Petitioner ultimately obtains would be purely advisory, and thus improper. See Habeas Corpus Res. Ctr. v. U.S. Dep't of Just., 816 F.3d 1241, 1247 (9th Cir. 2016) (“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases' and ‘Controversies.' U.S. Const. art. III, § 2. . . . At the core of the Article III case-or-controversy requirement is the doctrine of standing. . . . It requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction, so that there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party.”).
3. Lack of Liberty Interest.
Respondent next argues that Petitioner does not have a liberty interest in the application of his FSA FTCs towards prerelease custody, because 18 U.S.C. § 3624(g) allows the BOP discretion as to whether Petitioner will receive prerelease custody. (Doc. 9 at 7-8.) The Court agrees.
As discussed above, 18 U.S.C. § 3624(g) affords the BOP discretion on whether to place Petitioner in prerelease custody or onto supervised release. When a statute confers discretion on government action, no liberty interest is created. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (“If the decisionmaker is not ‘required to base its decisions on objective and defined criteria,' but instead ‘can deny the requested relief for any constitutionally permissible reason or for no reason at all,' ibid., the State has not created a constitutionally protected liberty interest.”). Nor does Petitioner have a constitutional right to “apply” his FSA FTCs in a specific manner, such as demanding that he be granted prerelease custody or home confinement. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”); Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002) (noting that relief under § 2241 is not available to challenge purely discretionary decisions), amended, 337 F.3d 1023 (9th Cir. 2003).
4. Petitioner's Sentence is Properly Calculated.
Lastly, Respondent argues that the Petition should be dismissed because his sentence has been properly calculated, and he is statutorily precluded from applying his FSA FTCs towards prerelease custody. (Doc. 9 at 8-9.)
Section 3624(g) sets forth the process for how FSA time credits are applied to create an earlier release date for eligible prisoners. Section 3624(g) requires, for placement in prerelease custody, that the prisoner “has been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner” or has specific approval by the warden. 18 U.S.C. § 3624(g)(1)(D)(i). For early transfer to supervised release, § 3624(g) requires that the inmate “has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner.” Id. § 3624(g)(1)(D)(ii). The clear language of 18 U.S.C. § 3624(g) precludes application of time credits until an inmate has lowered his recidivism risk level to a low or minimum classification.
Here, it is undisputed that Petitioner is classified as a Medium risk for recidivism, and that the Warden has not provided specific approval for Petitioner to be moved to prerelease custody. (See Doc. 1; Doc. 9.) Thus, Petitioner is not eligible for application of his FSA FTCs until his recidivism level has been lowered. See 18 U.S.C. § 3624(g). See also LaPuente, 2023 WL 3821136, at *5 (D. Haw. June 5, 2023) (“Because [Petitioner's] risk level was never lowered to minimum or low risk, he is ineligible to apply any earned FSA credits.”).
Petitioner is not entitled to the relief he seeks and the Court will recommend that the Petition be denied.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.