JOHN Z. BOYLE, Magistrate Judge.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Petitioner Robert Richard Spurling, III has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
Petitioner raises four grounds for relief in his timely Petition. Petitioner's claims are either procedurally barred or lack merit. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
The Arizona Court of Appeals summarized the following facts and procedural history:
State v. Spurling, No. 1 CA-CR 09-0939, 2011 WL 662629, at *2 (Ariz. Ct. App. Feb. 24, 2011).
On October 9, 2009, Petitioner filed a notice of appeal.
On July 18, 2011, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 15, Ex. AAA, at 34.) On December 7, 2011, the Arizona Supreme Court denied review. (Doc. 15, Ex. CCC, at 125.)
On December 11, 2011, Petitioner filed a notice of PCR relief. (Doc. 15-1, KKK, at 2.) On April 23, 2012, Petitioner, through counsel, filed a PCR petition. (Doc. 15-1, Ex. MMM, at 11.) On September 20, 2012, the trial court held an evidentiary hearing and subsequently denied Petitioner's petition for PCR on the merits. (Doc. 15-1, Ex. PPP, at 53.)
On December 21, 2012, Petitioner filed for review with the Arizona Court of Appeals. (Doc. 15-1, Ex. RRR, at 138.) On April 7, 2015, the court granted review but denied relief. State v. Spurling, No. 1 CA-CR 12-0788 PRPC, 2015 WL 1542932, at *1 (Ariz. Ct. App. Apr. 7, 2015). On October 8, 2015, the Arizona Supreme Court denied review. (Doc. 15-1, Ex. WWW, at 209.)
On July 24, 2015, Petitioner filed this habeas petition. (Doc. 1.) On November 23, 2015, Respondents filed an Answer to the Petition. (Doc. 14.) On January 21, 2016, Petitioner filed a Reply. (Doc. 18.) Petitioner raises four grounds for relief:
(Doc. 1 at 6-9.)
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. The Petition is timely.
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim").
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 33. A "state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
The Court may review the merits of an argument in the interest of judicial economy. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (explaining that the court may bypass the procedural default issue in the interest of judicial economy when the merits are clear but the procedural default issues are not).
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2015); Musladin v. Lamarque, 555 F.3d 834, 838 (9th Cir. 2009). The AEDPA requires that the habeas court review the "last reasoned decision" from the state court, "which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue." Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000)).
White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal citations and quotations omitted). See also Arrendondo v. Neven, 763 F.3d 1122, 1133-34 (9th Cir. 2014).
Burt v. Titlow, 134 S.Ct. 10, 15-16 (2013).
A state court decision is contrary to federal law if it applied a rule contradicting the governing law as stated in United States Supreme Court opinions, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Brown v. Payton, 544 U.S. 133, 141 (2005).
A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies a governing rule but applies it to a new set of facts in a way that is objectively unreasonable, or if it extends, or fails to extend, a clearly established legal principle to a new set of facts in a way that is objectively unreasonable. See McNeal v. Adams, 623 F.3d 1283, 1287-88 (9th Cir. 2010). The state court's determination of a habeas claim may be set aside under the unreasonable application prong if, under clearly established federal law, the state court was "unreasonable in refusing to extend [a] governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone, 530 U.S. 156, 166 (2000). However, the state court's decision is an unreasonable application of clearly established federal law only if it can be considered objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862 (2010). An unreasonable application of law is different from an incorrect one. See Renico, 130 S. Ct. at 1862; Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005). "That test is an objective one and does not permit a court to grant relief simply because the state court might have incorrectly applied federal law to the facts of a certain case." Adamson v. Cathel, 633 F.3d 248, 255-56 (3d Cir. 2011). See also Howard v. Clark, 608 F.3d 563, 567-68 (9th Cir. 2010).
Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). The "presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Phillips v. Ornoski, 673 F.3d 1168, 1202 n.13 (9th Cir. 2012).
Additionally, the United States Supreme Court has held that, with regard to claims adjudicated on the merits in the state courts, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). See also Murray, 745 F.3d at 998. Pursuant to section 2254(d)(2), the "unreasonable determination" clause, "a state-court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Burt, 134 S.Ct. at 15 (internal quotation marks and citation omitted) (quoted by Clark v. Arnold, 769 F.3d 711, 724-25 (9th Cir. 2014)).
If the Court determines that the state court's decision was an objectively unreasonable application of clearly established United States Supreme Court precedent, the Court must review whether Petitioner's constitutional rights were violated, i.e., the state's ultimate denial of relief, without the deference to the state court's decision that the AEDPA otherwise requires. See Lafler, 132 S.Ct. 1389-90; Panetti v. Quarterman, 551 U.S. 930, 953-54 (2007). Additionally, the petitioner must show the error was not harmless: "For reasons of finality, comity, and federalism, habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice.'" Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015) (internal quotations omitted).
Petitioner asserts that he "was convicted of crimes not charged by the Grand Jury" regarding Counts 3, 5, and 7. (Doc. 1 at 6.) Count 5 was reversed by the Arizona Court of Appeals, so Petitioner's claim regarding Count 5 is moot.
On direct appeal, Petitioner argued "that the inconsistencies between the grand jury and trial testimony led to his being convicted of crimes different than those for which he was indicted" in Counts 3, 5, and 7. State v. Spurling, 2011 WL 662629, at *3. He argued "that the indictment failed to give him notice of the nature of the offenses for which he was being charged in Counts 3, 5, and 7 and, therefore, he was unable to prepare adequate defenses." (Id.) The Arizona Court of Appeals found:
Spurling, 2011 WL 662629, at *2.
An indictment provides sufficient notice "if it, first contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974). Petitioner has not established that the Court of Appeals' decision was contrary to, or an unreasonable application of clearly established Supreme Court law. Here, Petitioner does not establish, as he alleges, that he was "convicted without adequate notice of the charges against him." (Doc. 1 at 6.) As the Arizona Court of Appeals found, the grand jury transcript documents the victim's testimony regarding the facts of Count 3. (Doc. 14-3, Ex. C, at 84.) Similarly, the grand jury transcript describes the allegation that relates to Count 7. (Doc. 14-3, Ex. C, at 87.) The slight variance regarding the location of the molestation (bedroom vs. living room) is insufficient to establish that Petitioner was unable to defend against Count 7. See United States v. Antonakeas, 255 F.3d 714, 722 (9th Cir. 2001) (no fatal variance where the evidence at trial covered the facts and time frame alleged in indictment); Arnold v. United States, 336 F.2d 347, 352 (9th Cir. 1964) (variance not material where "allegation and proof substantially correspond, where the variance is not of the character that could have misled the defendant at the trial, and where the variance is not such as to deprive the accused of his right to be protected against another prosecution for the same offense").
Ground One specifically asserts an Indictment defect related to Counts 3, 5, and 7. Assuming arguendo that Petitioner is raising additional claims in the fact section of his Petition, the Court agrees with Respondents that Petitioner has not exhausted these claims. Petitioner states that: "Insufficiencies of the indictment caused pervasive confusion and prejudiced Petitioner throughout the case. The province of the jury cannot therefore be relied on to support the remaining convictions." (Doc. 1 at 6.) In his direct appeal, Petitioner did not argue that a defect in Count 5 should result in a dismissal of all counts, but instead argued Counts 3 and 5 be dismissed. (Doc. 1-1 at 8.) Similarly, Petitioner did not assert in the state courts that the Indictment generally "was invalid on its face" or "bestow jurisdiction upon the Superior Court." (Doc. 1 at 6.) Additional arguments contained in Ground One are procedurally defaulted, and Petitioner offers no grounds to excuse the default.
Petitioner has not demonstrated that the Arizona Court of Appeals' conclusion regarding the sufficiency of the indictment was objectively unreasonable. The Court finds that Petitioner has failed to satisfy the standard for habeas relief on his claim in Ground One, and the Court will recommend that it be denied.
Petitioner alleges that "Counts 3, 6, 7, and 8 of the indictment were duplicitous," other acts were introduced at trial, and "there was no testimony relat[ed] to Count 3 at trial." Petitioner raised the duplicity claim on direct appeal, and the Arizona Court of Appeals found:
Spurling, 2011 WL 662629, at *2.
The Arizona courts found Petitioner waived his right to bring this claim under Arizona Rules of Criminal Procedure 13.5(e) and 16.1. Petitioner's claim is barred on habeas review because it was decided on adequate and independent state grounds. "Arizona's waiver rules are independent and adequate bases for denying relief." Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014). See also Stewart v. Smith, 536 U.S. 856, 861 (2002) (finding Arizona's waiver rule is independent of federal law); Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (finding Arizona waiver rule consistently and regularly applied). Accordingly, the undersigned concludes that Ground Two was procedurally barred on an independent and adequate state ground.
Petitioner also argues that "other bad acts were brought up at trial with no evidence and not indicted on. . . ." (Doc. 1 at 7.) The Arizona Court of Appeals determined that:
Spurling, 2011 WL 662629, at *5.
Petitioner did not challenge the admission of other act evidence on direct appeal. The failure to fairly present this ground has resulted in procedural default because Petitioner is now barred from returning to state courts. See Ariz. R. Crim. P. 32.2(a), 32.4(a). See also Coleman, 501 U.S. at 735 n. 1 (1991) ("[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."). Petitioner offers no grounds to excuse the procedural default by a showing of cause and prejudice, and does not establish actual innocence.
Petitioner's claim that "there was no testimony relat[ed] to Count 3 at trial" is meritless. "In regards to Count 3, S.L. testified that she had been molested while sleeping on a mattress in the living room and that the molestation occurred `every night,' not just on three occasions." Spurling, 2011 WL 662629, at *1. In Ground Two, Petitioner acknowledges that S.L. testified regarding Count 3 when he claims that her testimony about "every night" was duplicitous. The Court finds that Petitioner has failed to satisfy the standard for habeas relief on his claim in Ground Two and the Court will recommend that it be denied.
Petitioner alleges that the failure to conduct post-conviction DNA testing is a denial of due process. (Doc. 1 at 8.) Petitioner asserts that he "requested additional DNA testing," which "the State denied." (Id.) On March 19, 2010, Petitioner submitted, to the trial court, a pro se request for DNA testing. (Doc. 15, Ex. DDD, at 127.) But Petitioner's appellate counsel requested the motion be held in "abeyance" (Doc. 15, Ex. III, at 167) and the trial court granted the request (Doc. 15, Ex. JJJ, at 170). Subsequently, Petitioner did not request post-conviction DNA testing. The State did not "deny" Petitioner's request for post-conviction testing.
Petitioner's claim regarding DNA testing is also unexhausted and procedurally defaulted. Petitioner did not raise this issue on direct appeal (Doc. 14-9, Ex. UU, at 160) or in his motion for post-conviction relief (Doc. 15-1, Ex. MMM, at 11). Petitioner offers no grounds to excuse the procedural default by a showing of cause and prejudice, and does not argue or demonstrate actual innocence as an exception to the procedural default rule. See Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must make a credible showing of "actual innocence" by "persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.").
Petitioner alleges trial counsel was ineffective for failing to "investigate," play tape-recorded jail calls, and object to hearsay testimony. (Doc. 1 at 9.) Petitioner also claims the prosecutor "prejudiced the defendant" in opening statement, direct testimony (introduction of lay opinion testimony), cross-examination, and closing argument. (Id.) Petitioner further argues the judge improperly "explained a legal ruling and commented on Kelsey Freeman's testimony." (Id.)
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance—counsel's representation fell below the objective standard for reasonableness; and (2) prejudice—there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although a petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697. Petitioner bears the burden of affirmatively showing counsel's conduct was "outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687-90. Petitioner must overcome a strong presumption that his counsel's representation was within a wide range of reasonable professional assistance. See United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1996).
Petitioner asserts counsel was ineffective for "[failure] to investigate, [failure] to play tape recorded jail house calls (couldn't get machine to work). . . ." (Doc. 1 at 9.) Petitioner offers nothing more regarding these claims. These claims were not raised in Petitioner's direct appeal (Doc. 1 at 12) or PCR petition (Doc. 15-1 at 11). Petitioner does not describe the failure to investigate or provide information regarding the jails calls that were not played. Petitioner's claims fail because "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Petitioner's claims are also unexhausted and procedurally defaulted.
Petitioner asserts counsel was ineffective for "[failure] to object to hearsay testimony. . . ." (Doc. 1 at 9.) Petitioner offers nothing more regarding this claim in his Petition or Reply. Petitioner does not identify which statements counsel should have objected to, and how he was prejudiced from that failure. As noted above, "[c]onclusory allegations" not supported by "specific facts do not warrant habeas relief." Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011).
Petitioner did not argue this issue in his direct appeal, but did raise hearsay claims in his PCR petition. Petitioner raised his claims as violations of state law. Petitioner's claim also fails because he failed to fairly present his claims as a violation of federal law in state court. Additionally, the trial court denied Petitioner's claims, and the Arizona Court of Appeals granted review but denied relief (Doc 15-1, Ex. UUU, at 192). When analyzing ineffective assistance of counsel claims, the Court must be doubly deferential when the state court reviewed a claim because counsel is presumed to have rendered adequate assistance. Pinholster, 563 U.S. at 190. Here, Petitioner failed to argue how the Arizona courts' determinations were an unreasonable determination of the facts or an unreasonable application of Strickland. Habeas relief on this claim is precluded.
Petitioner asserts "the prosecutor on numerous accounts prejudiced the defendant in opening statements, improper cross-examination, insinuation not supported by evidence, improper lay opinion and improper statements during closing argument (refer to Petition for Post Conviction Relief)." (Doc. 1 at 9.) Petitioner asks the Court to incorporate the arguments presented in his PCR petition, but he fails argue how the Arizona courts' determinations (denying his claims) were an unreasonable determination of the facts or an unreasonable application of Strickland. Petitioner's failure to present these arguments precludes relief. See United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) ("We have cautioned that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived, and that it is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.") (citation and internal quotation marks omitted).
A review of Petitioner's PCR ineffective assistance of counsel claims alternatively demonstrates he is not entitled to habeas relief for the reasons described below.
Petitioner argued before the trial court that the prosecutor's "mini-opening" statements prior to voir dire "went well beyond proper opening statement and were designed to play on the sympathies of the jury." (Doc. 15-1, Ex. MMM, at 22.) Counsel objected to the "argument" on two occasions, so counsel was not ineffective for failing to object. Petitioner also did not further raise this claim to the Arizona Court of Appeals, so it is procedurally defaulted.
Petitioner argues that counsel was ineffective for allowing improper cross-examination. The Arizona Court of Appeals found that because "counsel objected to the sole question Spurling identifies as objectionable, we deny relief on this issue. Although Spurling complains his counsel made no further objections to alleged hearsay during the remainder of the cross-examination, he does not identify the objectionable testimony. He has therefore failed to provide sufficient argument to support these additional claims." Spurling, 2015 WL 1542932, at *2. Petitioner similarly fails to identify objectionable testimony in his Petition.
Petitioner asserts counsel was ineffective for not objecting when the prosecutor asked Petitioner if everyone was lying except for Petitioner. (Doc. 1 at 9.) The Arizona Court of Appeals denied this claim. "Spurling testified that several witnesses were lying and implied other witnesses were lying. Under these circumstances, we conclude that the trial court did not abuse its discretion when it denied relief on this issue." Spurling, 2015 WL 1542932, at *2. "It's black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness. . . ." United States v. Harrison, 585 F.3d 1155, 1158 (9th Cir. 2009) (citation omitted). But Petitioner's testimony that other witnesses lied could open the door to cross-examination on the topic. See United States v. Sine, 493 F.3d 1021, 1037 (9th Cir. 2007) ("As we have explained, the `opening the door' principle allows parties to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission.") (citation and quotations omitted).
Petitioner asserts ineffective assistance related to failures regarding lay opinion testimony, "insinuation not supported by evidence," and "improper statements during closing argument." (Doc. 1 at 9.) The Arizona Court of Appeals denied review of those claims because "Spurling did not raise those issues in the petition for post-conviction relief he filed with the trial court." Spurling, 2015 WL 1542932, at *2. Petitioner's claims are procedurally barred where the state court found the claim barred on state procedural grounds. "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claim has deprived the state courts of an opportunity to address those claims in the first instance." Coleman v. Thompson, 501 U.S. 722, 731-732 (1991). See also Beard v. Kindler, 558 U.S. 53, 59 (2009). Here, federal habeas corpus review is precluded because the state court opinion relies "on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989).
In sum, Petitioner is not entitled to relief on this claim.
Petitioner asserts the "judge deprived defendant of fair trial by not being impartial and free of bias where he explained legal ruling and commented on Kelsey Freeman's testimony is a clear violation of due process." (Doc. 1 at 9.) During Petitioner's closing argument, the prosecutor objected that counsel was arguing facts not in evidence. The trial court told the jury that the court did not recall the testimony and told the jurors to rely on their memory.
The determination of judicial bias is a factual question to which the federal courts defer on habeas review. See 28 U.S.C. § 2254(d); Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997) (stating that state court's finding of lack of judicial bias was entitled to a presumption of correctness). The Supreme Court has stated that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). The record fails to demonstrate any bias. Petitioner's claim is meritless.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's claims are timely, but either fail on the merits or are procedurally barred. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
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.
