Opinion
00 Civ. 6667 (WHP)(FM)
September 25, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE WILLIAM H. PAULEY. III
This Report and Recommendation was prepared with the assistance of Efram Friedman, a student at Fordham Law School.
I. Introduction
In this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Asmin Abreu ("Abreu") challenges his conviction on one count of Criminal Possession of a Controlled Substance in the First Degree and two counts of Criminally Using Drug Paraphernalia in the Second Degree, following a jury trial, in Supreme Court, New York County, before Justice William Wetzel and a jury. (See Pet. ¶¶ 1, 4; Affirm, of Lee Alan Adlerstein, Esq., dated Feb. 20, 2001 ("Adlerstein Affirm."), Ex. B). On January 22, 1996, Abreu was sentenced to an indeterminate prison term of fifteen years to life on the drug possession count, to run concurrently with concurrent definite one-year terms on the drug paraphernalia counts. (Adlerstein Affirm. Ex. C).
In his petition, Abreu claims that the evidence was insufficient to convict him on the drug possession charge. (Pet. ¶ 12.A). Abreu further claims that the trial court deprived him of a fair trial by failing to give a circumstantial evidence charge and responding to a deliberating juror's oral question without first conferring with Abreu and his counsel. (Id. ¶ 12.B). For the reasons that follow, Abreu's petition should be denied. Additionally, because Abreu has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
II. Facts
A. Trial Evidence
The proof at trial would have permitted a reasonable juror to find as follows:
On January 27, 1995, Police Officers Tirado and Viggiani received a radio transmission indicating that a man with a gun was selling drugs from Apartment 1A at 463 West 166th Street, in Manhattan. (Tr. 280-82, 569). Upon their arrival, the officers ascended a staircase to the second floor, where that apartment was located. (Id. at 283). The officers knocked on the apartment door, which was answered by a man later identified as Abreu. (Id. at 286). The officers asked Abreu if everything was okay and requested permission to enter the apartment. (Id. at 287). Abreu refused this request, looked around, and then "bolted right into" Officer Tirado in an effort to reach the stairs. (Id.). Tirado grabbed Abreu to prevent his escape and the two fell down the staircase. (Id. at 287-88). After a brief struggle, Officer Tirado handcuffed Abreu and led him back upstairs. (See id at 288-89).
The two officers then entered Apartment 1A with Abreu. (Id. at 289). In plain view on a glass table in the living room, the officers found two small plastic bags containing white powder, as well as electronic scales, calculators, a note pad, and hundreds of small plastic bags. (Id. at 290). From the living room, they also recovered a jar of lactose capable of being used to cut cocaine. (Id. at 304, 702-03). In the kitchen, the officers found a large plastic bag containing white powder which was protruding from the rear of the stove. (Id. at 291-92). The officers also seized approximately two hundred dollars in cash. (Id. at 755-57).
Abreu was arrested on a narcotics charge and brought to the local station house. (Id. at 290, 312). During routine processing, Officer Tirado accompanied Abreu into a bathroom so that he could to wash the fingerprint ink from his hands. (Id. at 313). While the two were in the bathroom, Abreu stated to Tirado, "I'll do my time. I'll take it like a man." (Id. at 314).
The three plastic bags of white powder recovered from the apartment subsequently were analyzed and determined to contain cocaine. (Id. at 300, 408-20). The contents of the plastic bag found in the kitchen weighed approximately four and one-quarter ounces; the two bags found on the living room table each weighed approximately one-eighth of an ounce. (Id. at 410-12).
A narcotics investigator also examined the note pad found on the living room table and determined that it contained entries referring to narcotics sales. (Id. at 697). Indeed, the amount of cocaine recovered from the apartment corresponded to the original quantity recorded on the note pad less the amounts recorded as having been sold. (Id. at 69 9-700).
B. Jury Instructions
During the course of the trial, Justice Wetzel furnished counsel with copies of his proposed jury instructions and entertained their suggestions for modifications. (Id. at 746-51, 859-64). Two of the claims in Abreu's petition relate to the trial court's instructions regarding constructive possession of the cocaine. In the relevant portion of his charge, Justice Wetzel instructed the jury that Abreu's "possession" had to be "knowing." (Id. at 887). He further instructed the jury that this knowing "[p]ossession may be either actual or constructive." (Id.). With respect to constructive possession, the Justice stated:
Constructive possession occurs when a person has the ability to exercise dominion and [c]ontrol over an item or items even if one does not have actual possession. As long as the object is under a person's substantial control, he may be considered to possess it.
Under the law a person may be considered to exercise dominion and control over an item or items if he has the power to transfer or direct the transfer of them to another, destroy them, or retain them.
Thus, you may find that a defendant possessed the drugs in question, if you find that the defendant had the power to exercise control over them or to direct the delivery to others or retain them, even if that defendant did not have physical possession of the drugs.
(Id. at 887-88).
In an effort to help the jury understand the concept of constructive possession, Justice Wetzel gave the jurors several examples unrelated to Abreu's case. Among other things, the Justice observed that the jurors had constructive possession of the personal belongings that they had brought into the jury room that morning even though they actually were in the courtroom listening to his charge. (Id. at 888-89).
During the course of their deliberations, the jurors sent the court a note which asked "to hear the definition of control — constructive possession." (Id. at 914). In response, Justice Wetzel reread the relevant portions of his original charge, including the definition of constructive possession set forth above. (Id. at 914-17). Immediately thereafter, while the jury was still in the courtroom, one of the jurors spontaneously asked, "Can you define dominion for me?" (Id. at 917). Without conferring with counsel, Justice Wetzel defined dominion as "a possessive right in an ownership type of interest," and "a power over something . . . canoting [sic] control." (Id.). The Justice then directed the jury to return to its deliberations. (Id. at 917-18).
Outside the presence of the jury, defense counsel objected to the fact that the term dominion had been defined without first conferring with the parties, and he requested an instruction incorporating the "actual legal meaning of dominion, as opposed to Your Honor's definition." (Id. at 918). When he was asked by the court to explain this further, defense counsel suggested that the court use the definition of dominion in the Penal Law. (Id.). As Justice Wetzel correctly observed, however, there is no such definition. (See id. at 919). Defense counsel also suggested that the court supplement its response using the definition in "words and phrases" or some "[d]ictionary meaning." (Id. at 918-19). At first, Justice Wetzel agreed to read the jury a Black's Law Dictionary definition of "dominion," which referred to "perfect control [and] right of ownership," implied both "title and possession[,] and appear[ed] to require a complete retention of control over disposition." (Id. at 921). Upon further reflection, the Justice concluded that this definition would be misleading. (Id. at 922-23). He added, however, that he was open to other suggestions. (Id. at 923-24). After defense counsel suggested using the "Webster's" definition, the Justice observed that it was not fully applicable and that the definition he previously had provided in response to the juror's question did not "in any way suggest [a] lesser standard. . . ." (Id. at 924-30). Accordingly, Justice Wetzel declined to give the jurors a further supplemental instruction regarding the requirement that Abreu exercise dominion and control over the drugs seized from the apartment. (See id. at 930).
C. Subsequent Proceedings
Abreu appealed his conviction to the Appellate Division, First Department. (Pet. ¶ 9). On appeal, Abreu contended that the evidence at trial was insufficient to demonstrate that he possessed the cocaine and paraphernalia found in the apartment. (Adlerstein Affirm. Ex. D (Br. on Appeal) at 12-20). Abreu also claimed that the jury instructions were flawed because the trial judge (a) omitted the element of mens rea from his constructive possession charge, (b) failed to consult with Abreu and his counsel before defining the term "dominion," and (c) failed to give a circumstantial evidence charge. (Id. at 21-31). Abreu's brief conceded that two of these appellate grounds (relating to mens rea and the circumstantial evidence charge) were unpreserved, but argued that they nevertheless should be reviewed "in light of the serious nature of the charges" and "in the interest of justice." (Id. at 25, 32).
On May 25, 1999, the Appellate Division unanimously affirmed the judgment of conviction. People v. Abreu, 692 N.Y.S.2d 302 (1st Dep't 1999). The court reached the merits of the sufficiency claim, finding that the evidence supported the jury's determination that Abreu, "the sole occupant of an apartment obviously used as a drug factory, constructively possessed the contraband." Id. at 303. The court declined to address Abreu's remaining claims because they were unpreserved, but stated that if it were to reach them it "would find no basis for reversal." Id.
On August 17, 1999, the Court of Appeals denied Abreu's application for leave to appeal. People v. Abreu, 93 N.Y.2d 1013 (1999).
Abreu's habeas petition is dated August 8 and was received by this Court's Pro Se Office on August 16, 2000. (See Pet. at 2). In his petition, Abreu renews each of the claims he advanced before the Appellate Division, other than his claim regarding the circumstantial evidence charge. (Id. ¶ 12). Abreu's insufficiency of the evidence claim is more narrowly focused, however, on his contention that the prosecution failed to prove that he possessed the requisite quantity of drugs. (See id. ¶ 12. A).
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong.Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389. As discussed below, because Abreu has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, he is not entitled to federal habeas relief.
B. Procedural Default
A federal court may not consider an issue of federal law raised in a state prisoner's petition for a writ of habeas corpus if the state court's prior denial of that claim rested on an adequate and independent state ground. E.g., Harris v. Reed, 489 U.S. 255, 262, (1989); Wainright v. Svkes, 433 U.S. 72, 81, (1977). A finding of procedural default qualifies as such an adequate and independent state ground, Harris, 489 U.S. at 262, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804. 809 (2d Cir. 2000). To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488 (1986);Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally, to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
In his petition, Abreu claims that the trial court's constructive possession charge was erroneous because it did not adequately incorporate the concept of mens rea. (See Pet. Attach. ("Pet'r's Br.") at 9-12). In its unanimous decision affirming Abreu's conviction, however, the Appellate Division rejected this claim because it was not properly preserved at trial. Abreu, 692 N.Y.S.2d at 303. Pursuant to New York's contemporaneous objection rule, an objection must be raised at trial in order to preserve it for appellate review. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 2001). The Appellate Division's finding of procedural default therefore constitutes an adequate and independent state ground for rejecting this claim. See Washington v. James, 996 F.2d 1442, 1447-48 (2d Cir. 1993) (federal courts are "reluctant to hear claims procedurally defaulted in state court . . . out of respect for the dual court system and deference to the integrity of state courts"); Philips v. Smith, 717 F.2d 44, 48 (2d Cir. 1983)("explicit state court reliance on a procedural default bars federal habeas review of the forfeited claim absent a showing of cause and prejudice regardless of whether the state court ruled alternatively on the merits of the forfeited claim"). Moreover, a subsequent order of the Court of Appeals denying leave to appeal without comment after the Appellate Division clearly and expressly based its decision on a state procedural bar does not change this result. Torres v. Hanslmaier, 1995 WL 272527, at *4 (S.D.N.Y. May 8, 1995) (citing Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995)).
Accordingly, the Court may not hear Abreu's claim regarding the constructive possession charge unless he can show both cause for the default and actual prejudice, or that the failure to consider it will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Although Abreu alleges that the omission of a mens rea element from the jury charge "was enormously prejudicial," (Pet. at 10), he has shown neither cause for his procedural default nor that he is actually innocent of the charges against him. The Court is therefore precluded from reviewing the merits of Abreu's claim concerning the alleged omission of a discussion of mens rea from the trial judge's constructive possession charge.
Abreu's two remaining claims are that the trial evidence was insufficient to convict him on the first degree drug possession count and that the trial court's response to the juror's inquiry concerning the term "dominion" deprived him of a fair trial. Although the Respondent contends that these claims also are unpreserved, both were adjudicated on the merits by the Appellate Division. See Abreu, 692 N.Y.S.2d at 302. Accordingly, the procedural default rule does not preclude their review. See Coleman, 501 U.S. at 735 ("In habeas, if the decision of the last state court to which the petitioner presented his federal claims fairly appeared to rest primarily on resolution of those claims . . . and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition.").
C. Sufficiency of the Evidence
A habeas petitioner challenging his conviction on the basis that the evidence of his guilt was insufficient bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (quoting United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993)). To succeed, he must show that no rational trier of fact could have found the essential elements of the crime to be established beyond a reasonable doubt. United States v. Jones, 16 F.3d 487, 490 (2d Cir. 1994). Conversely, to defeat such a sufficiency claim, the respondent need only show that, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Under Section 220.21 of the New York Penal Law, a person is guilty of Criminal Possession of a Controlled Substance in the First Degree when
he knowingly and unlawfully possesses one or more . . . substances containing a narcotic drug and said . . . substances are of an aggregate weight of four ounces or more.
N.Y. Penal Law § 220.21 (McKinney 2001) (emphasis added).
At trial, Abreu apparently did not dispute the testimony of the police officers indicating that a total of more than four ounces of cocaine was found in the apartment from which he fled. (See Tr. 820-23 (defense summation)). He also evidently concedes that approximately one-quarter ounce of cocaine was in two plastic bags which were in plain view in the living room of that apartment. (See Pet. ¶ 12.A; Pet'r's Br. at 5). He nevertheless claims that there was insufficient evidence to establish his knowing possession of the cocaine found behind the stove, without which he could not have been convicted of a first degree narcotics possession charge.
In Rodriguez v. Mitchell 1996 WL 164506 (S.D.N.Y. Apr. 9, 1996), a habeas petitioner convicted of a first degree narcotics charge advanced a similar claim that the trial evidence was insufficient to show that he possessed the requisite quantity of drugs. In that case, the defendant was found in an apartment which was being used as a drug factory, and he was attempting to flush slightly less than four ounces of cocaine down the toilet when the police entered. Id. at *1. The additional cocaine that the prosecution contended was in his constructive possession was found in another room in a dresser drawer. Id. Based on this evidence, Judge Griesa concluded that the "jury had more than ample grounds . . . to find that petitioner, who handled some of the cocaine, also possessed at least a portion of the other cocaine found in the apartment." Id. at *3.
Perhaps even closer to the facts of this case is Miranda v. Lacy, 1997 WL 695574 (S.D.N.Y. Nov. 6, 1997). There, when the police arrived at an apartment to execute a search warrant, the petitioner "suddenly threw open the door and ran out of the apartment." Id. at * 1. When they entered the apartment, the police found, in plain view, evidence of a drug factory, including a small quantity of drugs, an Ohaus scale, wrapping materials, and one-quarter ounce of cocaine. Id. In a secret compartment in a table, the police found additional cocaine. Id. Rejecting the petitioner's insufficiency claim, Judge Keenan noted that Section 220.25 of the Penal Law "creates a rebuttable inference that persons in close proximity to drugs discovered [in plain view] in a 'drug factory' are in constructive possession of such drugs." Id. at *3 (citing People v. Tirado, 38 N.Y.2d 955 (1976)).
In this case, a rational juror could have found that all of the cocaine in the apartment was in plain view in a drug factory, and that the only person in the apartment — Abreu — knowingly possessed that cocaine. Furthermore, it was not necessary for the jury to conclude that all of the drugs were in plain view in order to convict Abreu on the first degree possession count. As in Lacy, Abreu's presence in the apartment, coupled with his decision to flee as soon as he saw the police officers, established his knowing presence in a location which the jurors clearly could find was being used to package drugs. His statement that the officers could not enter the apartment also established that he had dominion and control over the apartment and its contents. Even if only a relatively small quantity of drugs was found in plain view in the living room, both the entries in the note pad and the presence of drug cutting equipment established that the apartment was being used to package quantities of drugs larger than those found in the living room. The note pad entries also connected the drugs in the kitchen to those in plain view in the living room. Finally, Abreu's spontaneous statement that he would take his time "like a man" could reasonably be taken as an implied admission that he was guilty of possessing a substantial quantity of drugs. While these are not the only factual conclusions that the jury could have reached on the basis of the evidence, they certainly are permissible ones. Accordingly, there is no factual or legal basis for Abreu's evidentiary insufficiency claim.
D. Response to Juror Inquiry
In Rogers v. United States, 422 U.S. 35, 36 (1975), the trial judge instructed a marshal to answer a jury note on his behalf without advising counsel in advance. Five minutes later, the jury returned a guilty verdict. Id. at 37. The Supreme Court found that this procedure violated Rule 43 of the Federal Rules of Criminal Procedure, which entitles a defendant to be present at every stage of a trial. Id. at 39. Based on the rule and its prior decisions, the Court held that "the jury's message should have been answered in open court and . . . petitioner's counsel should have been given an opportunity to be heard before the trial judge responded." Id.
Several years later, in United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981), the Second Circuit stated that the proper practice to follow in responding to jury inquiries should include the following four steps:
(1) The jury's inquiry should be submitted in writing. . . .(2) Before the jury is recalled, the note should be marked as a court exhibit and be read into the record in the presence of counsel and the defendant. . . .(3) Counsel should be afforded an opportunity to suggest appropriate responses. . . .(4) After the jury is recalled, the trial judge should generally precede his response by reading into the record in their presence the content of any note concerning substantive inquiries. This assures that all jurors appreciate the question to which the response is directed, in the event the note was not discussed among all the jurors. It also provides an opportunity to correct any failure by the foreman to convey accurately the inquiry of one or more of the jurors, in the event the foreman has undertaken to author all substantive notes.
In People v. O'Rama, 78 N.Y.2d 270, 276 (1991), the New York Court of Appeals endorsed the use of the Ronder procedures in the state courts.
A failure to comply fully with the Ronder/O'Rama procedures does not mean that the defendant necessarily received an unfair trial. Indeed, inUnited States v. Ulloa, 882 F.2d 41, 44 (2d Cir. 1989), the trial judge answered a series of oral questions posed by the jurors without consulting counsel. Despite Ronder, the Second Circuit found "no prejudice" and, consequently, no basis for reversal. As the Court observed:
In some circumstances, a juror's oral inquiry, seeking only slight clarification of a judge's response to a prior written inquiry, can safely be answered without requiring a further writing. But a trial judge should proceed with caution and should not hesitate to tell the jurors to listen to the judge's complete response rather than interject questions during the response. Once it appears that the "slight clarification" question is leading to a colloquy, it will normally be prudent for the judge to suggest that the jurors return to the jury room and submit any further inquiry in writing.Id. at 45.
Here, the juror's inquiry sought only a "slight clarification" and did not lead to an extended interchange. Additionally, there is no suggestion that the substance of Justice Wetzel's response was in any way harmful to Abreu. For these reasons, Justice Wetzel did not abuse his discretion, nor was Abreu deprived of a fundamentally fair trial. See Ronder, 639 F.2d at 934 (the purpose of reading a note aloud to the jury is to provide an opportunity to "correct any failure by the foreman to convey accurately the inquiry of one or more of the jurors"); O'Rama, 78 N.Y.2d at 278 ("In the final analysis, the choice of methods to be used to address particular idiosyncratic situations is a matter to be entrusted to the sound discretion of the trial courts, since it is impossible to predict or prescribe for the myriad of problems that may arise during the course of a jury's deliberations.").
Even if the Court were to assume that the manner in which Justice Wetzel responded to the juror's inquiry rose to the level of a constitutional error, Abreu still has not shown that he suffered any prejudice. Indeed, on both his direct appeal and in this Court, Abreu has not alleged that the trial judge's actual response to the question misstated the law. (See Adlerstein Affirm. Ex. D (Abreu Br. on Appeal) at 22-23; Pet'r's Br. at 13-16). In fact, the supplemental instruction concerning the term "dominion" was arguably more favorable to the defense than the judge's original instruction, to which the defense had voiced no objection. (Compare Tr. 887-88 ("a person may be considered to exercise dominion and control over an item or items if he has the power to transfer or direct the transfer of them to another, destroy them, or retain them") with id. at 917 (dominion means "a possessive right in an ownership type of interest . . . a power over something. . . .canoting [sic] control")). Finally, even if the trial court's failure to confer with counsel was error, Abreu arguably waived his right to assert it in this forum because his counsel failed to voice a timely objection so that the problem could be corrected.
IV. Conclusion
For the foregoing reasons, Abreu's habeas petition should be denied. Furthermore, because Abreu has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the Chambers of the Honorable William H. Pauley, III, United States District Judge, and to the Chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Pauley. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).