WALLACE CAPEL, Jr., Magistrate Judge.
This cause is before the court on a 28 U.S.C. § 2254 petition for writ of habeas corpus filed by Randy Allen Sasser ["Sasser"], a former state inmate, on June 10, 2009. In this petition, Sasser challenges a conviction for third degree escape imposed upon him by the Circuit Court of Houston County, Alabama on June 20, 2007.
Sasser filed a direct appeal of his escape conviction in which he raised the following claims for relief: (1) The State did not establish the requisite elements of the charged offense as it failed to prove the petitioner was in custody or under lawful arrest at the time of the alleged escape;
On February 22, 2008, the Alabama Court of Criminal Appeals affirmed Sasser's conviction for third degree escape in an unpublished memorandum opinion. Resp'ts' Ex. D — Doc. No. 11-4. The appellate court's opinion, in relevant part, reads as follows:
Resp'ts' Ex. D — Doc. No. 11-4 at 1-7 (footnotes omitted).
Sasser filed an application for rehearing which the Alabama Court of Criminal Appeals overruled on March 14, 2008. Resp'ts' Ex. F — Doc. No. 11-6. Sasser then filed a petition for writ of certiorari with the Alabama Supreme Court in which he argued the Alabama Court of Criminal Appeals erred in finding the State established the "in custody" element of the escape statute and as a consequence thereof improperly determined his actions constituted an escape. Resp'ts' Ex. G — Doc. No. 11-7 at 8-10. The Alabama Supreme Court denied the petition for writ of certiorari on June 13, 2008 and the certificate of judgment issued on this same date. Resp'ts' Ex. H — Doc. No. 11-8.
Sasser initiated this 28 U.S.C. § 2254 action on June 10, 2009 in which he asserts the following claims for relief:
In their answers to the petition, the respondents argue the claims pending before this court entitle Sasser to no relief. Specifically, the respondents contend all of Sasser's claims for federal habeas relief, with the exception of his challenge to the sufficiency of the evidence, are procedurally barred from review because Sasser failed to present these claims to the state courts as required by the State's procedural rules either at trial, on direct appeal or in a Rule 32 petition. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process," including review by the state's court of last resort, even if review in that court is discretionary.); Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003) ("Nothing in Boerckel's reasoning suggests that a different rule should apply in state post-conviction appeals as opposed to direct appeals."); Smith v. Jones, 256 F.3d 1135, 1140 (11th Cir. 2001), cert. denied, 534 U.S. 1136 (2002) ("Alabama's discretionary direct review procedures bring Alabama prisoner habeas petitions within the scope of the Boerckel rule."); Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002) ("Under the procedural default doctrine, we will not consider on federal habeas corpus review a claim that was not adequately presented to the state court in compliance with the state's procedural requirements."); Collier v. Jones, 910 F.2d 770, 772 (11th Cir. 1990) ("[W]hen a petitioner has failed to present a claim to the state courts and under state procedural rules the claim has become procedurally defaulted, the claim will be considered procedurally defaulted in federal court.").
In order to provide the state courts with the requisite full and fair opportunity to address his claims, "the petitioner [must] `fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)). Exhaustion is not satisfied `merely' if the petitioner presents the state court with `all the facts necessary to support the claim' or even if a `somewhat similar state-law claim was made.' Kelley v. Sec'y for Dept. of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004) (citation omitted)." Pearson v. Sec'y for Dept. of Corr., 273 F. App'x 847, 849-850 (11th Cir. 2008); Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) (when petitioner fails to properly exhaust claims in state court and is barred from raising claims in state court by applicable procedural rules, such claims are procedurally defaulted); McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005) ("It is well established that when a petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the state court remedy is no longer available, the failure also constitutes a procedural bar."); Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) ("[F]ederal courts may treat unexhausted claims as procedurally defaulted, even absent a state court determination to that effect, if it is clear from state law that any future attempts at exhaustion would be futile [due to the petitioner's failure to properly present his claims to the state courts]."); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) ("[W]hen it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, we . . . treat those claims now barred by state law as [procedurally defaulted providing] no basis for federal habeas relief."); Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (when state-court remedies are no longer available because petitioner failed to file a direct appeal or properly exhaust his state post-conviction remedy, petitioner procedurally defaulted on his claims and is precluded from obtaining relief on these claims in federal habeas proceeding); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (citations omitted) ("[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,]. . . there is a procedural default for purposes of federal habeas . . . .").
With respect to Sasser's claim challenging establishment of the "in custody" element and the resulting determination he committed an escape, the respondents argue Sasser is entitled to no relief from this court as the state courts properly adjudicated this claim on the merits. Price v. Vincent, 538 U.S. 634, 638, 123 S.Ct. 1848, 1852 (2003) (habeas petitioner whose claim was adjudicated by a state court on the merits entitled to no relief from federal court unless he demonstrates requirements of 28 U.S.C. § 2254(d)); Williams v. Taylor, 529 U.S. 362, 364-65 (2000) (With respect to claims adjudicated on the merits by a state court, federal habeas relief is available only where the state-court adjudication resulted in a decision that was "contrary to" or "an unreasonable application" of clearly established federal law as determined by holdings of the United States Supreme Court). A federal court may also grant habeas relief on an adjudicated claim if the state court's adjudication of the claim constituted "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). In addressing the sufficiency argument, the respondents maintain the Alabama Court of Criminal Appeals correctly determined the evidence presented at trial "was sufficient to establish that Sasser had been detained by a public servant pursuant to eight lawful court orders" when he absconded from the courthouse thereby establishing the custody element of third degree escape. Resp'ts' Ex. D — Doc. No. 11-4 at 4.
Upon review of the § 2254 petition, the answers of the respondents, Sasser's response to the answers, the state court record, opinions issued by the state courts and applicable federal law, this court finds no evidentiary hearing is required, Rule 8(a), Rules Governing Section 2254 Cases in United States District Courts, and concludes the petition is due to be denied.
The instant petition for federal habeas relief is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ["AEDPA"]. "A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d)." Price, 538 U.S. 634, 638, 123 S.Ct. 1848, 1852; Williams, 529 U.S. 362, 402, 120 S.Ct. 1495, 1518. Under the requisite provisions of 28 U.S.C. § 2254(d), with respect to a claim adjudicated on the merits in state court, federal habeas relief from a state court judgment may not be granted unless the adjudication of the claim:
In Williams, the Supreme Court held:
529 U.S. at 412-13.
The Court subsequently explained that habeas relief is appropriate when a petitioner demonstrates "that a decision by a state court is `contrary to' . . . clearly established [Supreme Court] law if it `applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.' Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000)." Price, 538 U.S. at 640. Additionally, federal review in a habeas action "is limited to whether the state court's decision was objectively unreasonable in the light of clearly established federal law. Williams, [529 U.S. at 409], 120 S.Ct. at 1521." Hawkins v. Alabama, 318 F.3d 1302, 1310 (11th Cir. 2003); Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001), citing Williams, supra ("[F]ederal habeas relief [is] available under the `unreasonable application' standard only if the state court's application of clearly established federal law was `objectively unreasonable.'"). Thus, a federal court is not to decide "the correctness per se . . . of the state court decision" but only the "objective reasonableness" of such decision. Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001). Moreover, "an
Federal district courts are likewise directed to determine whether the state court based its findings on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). A state court's determinations of fact shall be "presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). However, even when the state court addresses a question of law, this court is not authorized "to evaluate [a petitioner's] claim de novo rather than through the lens of § 2254(d)." Price, 538 U.S. at 639. The Supreme Court admonishes that such de novo evaluation "exceeds the limits imposed on federal habeas review by 28 U.S.C. § 2254(d) .. . ." 538 U.S. at 636, 123 S.Ct. at 1851. As is clear from the foregoing, a federal "district court's review . . . [of claims decided by the state courts] is greatly circumscribed and highly deferential to the state courts." Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2007). The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Sasser presented his challenge to the sufficiency of the evidence on direct appeal of his escape conviction. After discussion of the evidence presented by the State at trial and discussion of applicable state law, the Alabama Court of Criminal Appeals decided this issue adversely to Sasser. Resp'ts' Ex. D — Doc. No. 11-4 at 4 ("`A person commits the offense of escape in the third degree if he escapes or attempts to escape from custody.' § 13A-10-33(a), Ala. Code 1975. `Custody' is defined as `[a] restraint or
The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
Id. at 318-19 (emphasis in original; citations and footnote omitted).
The Alabama Court of Criminal Appeals did not decide Sasser's claim attacking the sufficiency of the evidence regarding his conviction for third degree escape under Alabama law "differently than [the Supreme] Court has [in a case based] on a set a of materially indistinguishable facts" nor did the state courts apply a rule that contradicts governing federal law. Williams, 529 U.S. at 413. Consequently, the state appellate court's rejection of the challenge to the sufficiency of the evidence was not contrary to actual Supreme Court decisions. Further, a thorough and independent review by this court of the trial record submitted in this case establishes that the State presented evidence, when viewed in a light most favorable to the State, provided a basis on which a rational trier of fact could have found the essential elements of third degree escape.
The remaining claims for federal habeas relief are procedurally defaulted as Sasser failed to present these claims to the state courts in accordance with the State's applicable procedural rules. O'Sullivan v. Boerckel, 526 U.S. at 845; Henderson, 353 F.3d at 891; Pruitt v. Jones, 348 F.3d at 1358-59. Upon thorough review of the answers filed by the respondents and the state court records, the court gleans the relevant procedural defaults as follows:
(1) The stand-alone Miranda claim, i.e., Sasser not advised of his Miranda rights at the time of the arrest in violation of his Fifth Amendment right against self-incrimination, the challenge to the indictment based on a handwritten modification of the number of grand jurors and the allegation regarding alteration of the issuance date on the arrest warrants are procedurally defaulted because Sasser failed to properly raise these claims at trial and on direct appeal. In addition, the respondents argue the Miranda claim is without merit as it is undisputed no custodial interrogation occurred and no statements were obtained from Sasser which the State sought to use in the criminal proceedings.
(2) The claims of ineffective assistance of counsel are precluded from review under the doctrine of procedural default because Sasser failed to present these claims in a Rule 32 petition and this avenue of state review is no longer available to Sasser.
As a prerequisite to filing a federal habeas action, the petitioner must have properly exhausted state court remedies, either on direct appeal or in a state post-conviction petition, 28 U.S.C. § 2254(b), thereby giving the State the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)); Kelley, 377 F.3d at 1342-44 (11th Cir. 2004) (a petitioner cannot raise claims in federal court if those claims, including the factual basis for the claims, were not first properly exhausted in state court.). To properly exhaust state remedies, the petitioner must fairly present every issue raised in his federal petition to each appropriate state court, including the state's highest court, alerting that court to the federal nature of the claim and a statement of the facts which entitle him to relief. Duncan, 513 U.S. at 365-66; O'Sullivan, 526 U.S. at 845; Picard, 404 U.S. at 277-78. "[F]or purposes of exhausting state remedies, a claim for relief in a habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1996); McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) ("In order to be exhausted, a federal claim must be fairly presented to the state courts."); Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (The exhaustion requirement is not satisfied and a procedural default occurs when "the ineffective-assistance claim was `presented' to the state courts [but] not presented in the manner that state law requires.").
Kelley, 377 F.3d at 1343-44. The court further advised that "[t]o ensure exhaustion, petitioners must present their claims in this manner of clarity throughout `one complete round of the State's established appellate review process.' O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). As long as state supreme court review of a prisoner's claims is part of a state's ordinary appellate review procedure, prisoners of that state must present their claims to the state supreme court to preserve those claims for federal review, even if review by that court is discretionary. See id. at 848-49, 119 S.Ct. at 1734." Kelley, 377 F.3d at 1345.
Sasser acknowledges he failed to properly exhaust his federal claims regarding a Miranda violation, invalid issuance of the indictment, improper arrest warrants and ineffective assistance of counsel in the state courts. It is also undisputed that no remedy remains before the state courts in which Sasser can obtain review of these claims. The aforementioned claims are therefore precluded from federal review in accordance with the procedural default doctrine. Thus, this court may reach the merits of Sasser's procedurally defaulted claims "only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both `cause' for the default and actual `prejudice' resulting from the default. See Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986); [Wainwright v.] Sykes, 433 U.S. [72,] 87 [(1977)] . . . . Second, a federal court may also grant a habeas petition on a procedurally defaulted claim, without a showing of cause or prejudice, to correct a fundamental miscarriage of justice. Murray, 477 U.S. at 495-96, 106 S.Ct. at 2678. A `fundamental miscarriage of justice' occurs in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent. Id." Henderson, 353 F.3d at 892.
Henderson, 353 F.3d at 892. In an attempt to demonstrate cause for his procedural defaults arising at trial and on direct appeal, Sasser asserts he received ineffective assistance of counsel during these proceedings. Sasser also contends he did not file a Rule 32 petition because he believed it would have caused him to file his federal petition outside the applicable one-year period of limitation established in 28 U.S.C. § 2244(d)(1). Additionally, Sasser maintains the state courts, especially the Circuit Court of Houston County, are biased and prejudiced towards him and any attempt to raise his claims in those courts would have been futile thereby excusing his procedural defaults. In support of his futility argument, Sasser asserts "bias and prejudice [of the state courts] towards the Petitioner . . . [is] proven" by the use of an invalid indictment and the rulings denying him relief from his conviction. Pet'r's Resp. — Doc. No. 22 at 2.
Initially, Sasser's conclusory and self-serving assertions regarding futility of presenting his claims to the state courts due to alleged bias and prejudice are not well taken. There is nothing before this court which indicates any bias or prejudice by the state courts against Sasser nor can the court countenance the existence of any evidence which would support this claim. The mere fact the state courts denied Sasser relief on his claims does not establish or even implicate bias or prejudice. Moreover, the arguments presented by Sasser relative to his perceived futility of exhaustion provide no basis for circumvention of the applicable procedural bars. Waldrop v. Jones, 77 F.3d 1308, 1315 (11th Cir. 1996) (alleged futility of presenting claim to state court on direct appeal does not establish cause for procedural default); Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573 (1982) (Perceived "futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial."). "Even if it was unlikely that his claim[s] would have been well-taken in state court, [Sasser] should have raised [them]." Waldrop, 77 F.3d at 1315. In addition, the conclusory and specious allegation of futility set forth by Sasser "fails to fit within the narrow exception for futility." Howard v. Davis, 815 F.2d 1429, 1430 (11th Cir. 1987).
Sasser's claim regarding potential running of the federal period of limitation is without factual or legal basis. If Sasser had first raised his claims of ineffective assistance of counsel in a Rule 32 petition, rather than filing a habeas petition with this court, the state post-conviction petition would have tolled the applicable federal period of limitation. 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."). Thus, bypassing an available state post-conviction relief due to a misunderstanding of legal principles does not establish cause for Sasser's procedural default on his claims of ineffective assistance of counsel. To the extent Sasser misunderstood the running of the federal period of limitation, any reliance on his pro se status and attendant lack of legal knowledge as cause likewise provide no basis for relief from the applicable procedural bar as neither an inmate's lack of legal knowledge, his failure to understand legal principles nor the inability to recognize potential claims for relief at an earlier juncture constitute an extraordinary circumstance sufficient to warrant such relief. Harmon v. Barton, 894 F.2d 1268 (11th Cir. 1990) (ignorance of the law fails to establish cause for a procedural default); Smith v. Newsome, 876 F.2d 1461 (11th Cir. 1989); Spencer v. Kemp, 781 F.2d 1458, 1462 (11th Cir. 1986); Barksdale v. Lane, 957 F.2d 379, 385-86 (7th Cir. 1992) (petitioner's pro se status does not constitute adequate grounds for cause); see also Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 969 (11th Cir. 1997) (ignorance of the law is not a factor which warrants relief from procedural bars); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001) ("[I]t is well established that `ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.' Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)."); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000), cert. denied, 534 U.S. 863 (2001) (lack of legal knowledge or legal resources, even in a case involving a pro se inmate, does not warrant relief from a procedural bar); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (relief from procedural bar not justified by fact that petitioner did not understand the law).
With respect to the assertion of ineffective assistance of counsel as cause for the defaults occurring at trial and on direct appeal, Sasser is procedurally defaulted on these claims as he failed to present such claims in an available state post-conviction action. Ineffective assistance of counsel will excuse a procedural default only when the ineffective assistance claim itself has been independently raised and properly exhausted in the state courts. Edwards, 529 U.S. at 453 (A federal habeas court is barred from considering a procedurally defaulted "ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim" unless the petitioner establishes "the cause-and-prejudice standard with respect to [the ineffective assistance claim]."); Murray, 477 U.S. at 489 ("[A] claim of ineffective assistance [must] be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default."); Hill v. Jones, 81 F.3d 1015, 1030 (11th Cir. 1996) (a procedurally defaulted claim of ineffective assistance of counsel cannot serve as cause to excuse the default of a separate claim). Sasser fails to establish cause and prejudice for the default on his claims of ineffective assistance of counsel. Thus, the claims of ineffective assistance of counsel cannot constitute cause necessary to excuse Sasser's procedural defaults arising at trial and on direct appeal. Moreover, the court finds that none of the allegations of ineffective assistance of counsel in any way justify Sasser's failure to properly exhaust these claims in a Rule 32 action.
Based on the foregoing, the court concludes Sasser has failed to demonstrate cause for his failure to present his procedurally defaulted claims to the state courts in compliance with applicable procedural rules. Furthermore, Sasser has presented nothing which establishes the existence of actual prejudice emanating from infringement of federal law. Nevertheless, this court may still reach the merits of Sasser's procedurally defaulted claims in order to prevent a fundamental miscarriage of justice
The miscarriage of justice standard is directly linked to actual innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995). Actual innocence is not an independent claim; rather, it is the "gateway" through which a petitioner must pass before a court may consider constitutional claims which are defaulted. Id. at 315. This exception applies where a petitioner establishes that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986); Schlup v. Delo, supra. "To establish actual innocence, [a habeas petitioner] must demonstrate that .. . `it is more likely than not that no reasonable juror would have convicted him.' Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995)." Bousley v. United States, 523 U.S. 614, 623 (1998). "[T]he Schlup standard is demanding and permits review only in the `"extraordinary'" case." House v. Bell, 547 U.S. 518, 538 (2006). Thus, "[i]n the usual case the presumed guilt of a prisoner convicted in state court counsels against federal review of defaulted claims." 547 U.S. at 537. "It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency. See Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-2519, 120 L.Ed.2d 269 (1992)." Bousley, 523 U.S. at 623-24; Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) ("As Schlup makes clear, the issue before [a federal district] court is not legal innocence but factual innocence."). Schlup observes that "a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare . . . . To be credible, such a claim requires petitioner to support his allegations of constitutional error with
Sasser has failed to make the requisite showing of actual innocence as he has presented no "new reliable evidence" nor do his allegations suggest that any such evidence exists which could satisfy the stringent standard set forth in Schlup. Sasser merely reiterates the evidence previously presented at trial and argues this evidence failed to establish his guilt of the offense. Sasser's procedurally defaulted claims are therefore foreclosed from federal habeas review.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
It is further
ORDERED that the parties are DIRECTED to file any objections to the Recommendation
Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).
