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dismissing totally unexhausted habeas petition without prejudice
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00 Civ. 1235 (VM)(AJP)
December 4, 2000
REPORT AND RECOMMENDATION
To the Honorable Victor Marrero, United States District Judge:
Pro se petitioner Santiago Padilla seeks a writ of habeas corpus from his May 21, 1996 conviction in Supreme Court, New York County, upon his plea of guilty, of first degree manslaughter, and sentence of eleven to twenty-two years. (Dkt. No. 2: Pet. ¶¶ 1-5.) Padilla's habeas petition raises two claims: first, that his guilty plea was unlawfully induced or involuntarily made (Pet. ¶ 12(A)), and second, ineffective assistance of counsel (Pet. ¶ 12(B)).
Padilla's Petition concedes that the only ground raised in his direct appeal to the First Department was an excessive sentence claim, and that he did not seek leave to appeal to the New York Court of Appeals or file any state collateral attacks on his conviction. (Pet. ¶¶ 9-10.)
For the reasons set forth below, Padilla's petition should be dismissed without prejudice so that he can exhaust his claims in state court.
ADDITIONAL PROCEDURAL BACKGROUND
By Order dated February 18, 2000, then-Chief Judge Griesa directed Padilla to show cause why his claims were exhausted and also directed Padilla to "amend his petition to also include allegations to explain how he has exhausted his state court remedies." (Dkt. No. 3:2/18/00 Order at 2.)
On March 28, 2000, Padilla filed an Amended Petition. (Dkt. No. 4: Am. Pet.) The Amended Petition, however, did not give any further information to show that Padilla's claims had been raised and exhausted in state court.
The case was referred to me on October 4, 2000 (Dkt. No. 6), and by Order dated October 30, 2000, I again directed Padilla to explain why the claims in his habeas petition were exhausted. (Dkt. No. 7:10/30/00 Order at 2.)
The October 30, 2000 Order also warned Padilla to be cognizant of the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year limitation period. (Id. at 2 n. 1.)
On November 13, 2000, Padilla responded to my Order to Show Cause. Padilla conceded that the "sole basis for [his First Department] appeal was the fact that 'Appellant's sentence of 11 to 22 years was excessive.'" (Padilla 11/13/00 2d Am. Pet. at 1.) Padilla asserted, however, that the petition's claims were exhausted because in the course of Padilla's First Department excessive sentence brief, appellate counsel mentioned in passing that trial counsel was ineffective and had given misinformation to Padilla about the sentence he faced. (See Padilla 11/13/00 2d Am. Pet. at 2, citing attached Padilla 1st Dep't Br. at 5.) In a handwritten attachment to his November 13, 2000 submission, Padilla asserted, without legal citation, "that within New York State, the [state] courts defer questions of ineffective assistance of counsel (that is, the basic claim in this matter), to federal jurisdiction." (Padilla 2d Am. Pet., handwritten attachment.) Padilla is incorrect.
ANALYSIS
Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless is appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948 . . . in 28 U.S.C. § 2254."); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Accord, e.g., Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 n. 16 (S.D.N.Y. Oct. 27, 2000)(Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *5 (S.D.N.Y. Aug. 18, 2000)(Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000)(Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000)(McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000)(Peck, M.J.), report rec. adopted, slip op. (S.D.N.Y. Nov. 16, 2000)(Daniels, D.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 275 n. 2 (S.D.N.Y. 2000)(Preska, D.J. Peck, M.J.)( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999)(Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999)(Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999)(McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999)(Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Brock v. Artuz, 2000 WL 1611010 at *11; Gumbs v. Kelly, 2000 WL 1172350 at *5; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 360.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-48, 119 S.Ct. at 1732-34; Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *5; Ventura v. Artuz, 2000 WL 995497 at *10; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Thomas v. Greiner, 111 F. Supp.2d at 275; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 360-61; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996)(Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996)(Mukasey, D.J. Peck, M.J.).
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney Gen., 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *5; Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *5 (S.D.N.Y. Aug. 8, 2000)(Peck, M.J.); Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
See also, e.g., Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *5; Holden v. Miller, 2000 WL 1121551 at *5; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney Gen., 696 F.2d at 194.
Accord, e.g., Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688; Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *6; Holden v. Miller, 2000 WL 1121551 at *6; Mendez v. Artuz, 2000 WL 722613 at *24 n. 15; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Jordan v. LeFevre, 22 F. Supp.2d at 266; Diaz v. Coombe, 1997 WL 529608 at *3; Washington v. Superintendent, Otisville Corr. Facility, 96 Civ. 2729, 1997 WL 178616 at *3-4 (S.D.N.Y. April 11, 1997); Boyd v. Hawk, 1996 WL 406680 at *3.
Here, the only claim that Padilla presented to the First Department was his excessive sentence claim, which is a state not federal law claim. See, e.g., White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)("No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law."); accord, e.g., Foreman v. Garvin, 2000 WL 631397 at *13 (citing cases). The passing reference in Padilla's First Department brief in support of his excessive sentence claim that he received erroneous information from counsel did not "fairly present" his ineffective assistance of counsel or involuntary guilty plea claims. See, e.g., Foreman v. Garvin, 2000 WL 631397 at *9 (petitioner did not "properly present" his involuntary guilty plea claim so as to exhaust it where he raised his claim before the trial court and on direct appeal only in the context of seeking a lesser sentence). Padilla's claims, therefore, are not exhausted.
New York allows ineffective assistance of counsel claims to be brought via a collateral attack pursuant to CPL § 440.10. Hernandez v. Lord, 00 Civ. 2306, 2000 WL 1010975 at *3 (S.D.N.Y. July 21, 2000)(Peck, M.J.) (citing federal and New York State cases). Thus, it appears that Padilla can still bring his federally unexhausted claims in state court pursuant to CPL § 440.10.
Since Padilla's claims are unexhausted but appear capable of being raised in state court, Padilla's habeas petition should be dismissed without prejudice to allow him to exhaust the claims. The Court agrees with the decision in Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996), where the court explained:
Pursuant to the 1996 AEDPA amendments, however, the Court may exercise discretion to hear and deny petitioner's non-exhausted claim; the total exhaustion rule is no longer binding. . . . The Court, however, declines to exercise the discretion to hear and dismiss petitioner's application in this case.
By refusing to exercise the discretion provided under section [2254(b)], this Court endorses the rationale of the "total exhaustion rule" and continues to furnish state appellate courts the initial opportunity to correct trial court decisions. Moreover, the refusal to exercise discretion here does not conflict with the intent of Congress. In fact, enforcing the "total exhaustion rule" in this context will "encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition." Rose v. Lundy, 455 U.S. at 520, 102 S.Ct. at 1204. This will serve to avoid piecemeal litigation and eventually decrease the burden on federal courts. Id.
Finally, the Court notes that applying the "total exhaustion rule" in cases such as this one does not unduly prejudice petitioners. Those who misunderstand the requirement and submit unacceptable "mixed petitions" may resubmit their application pending either the removal of the unexhausted claim, or exhaustion of the offending claim at the state level.
See also, e.g., Otero v. Stinson, 51 F. Supp.2d at 417-420; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *4 (S.D.N.Y. Oct. 7, 1998); Walker v. Miller, 959 F. Supp. 638, 643-44 (S.D.N.Y. 1997)(McKenna, D.J. Peck, M.J.) (finding that state court remedies were not exhausted where § 440.10 motion did not advance all of the ineffective assistance of trial counsel allegations raised in habeas petitions); Ehinger v. Miller, 928 F. Supp. at 294 ("Ineffective assistance of trial counsel motions . . ., ordinarily are made by a CPL § 440.10 motion before the trial court, or direct appeal where trial counsel's alleged incompetence could be determined from the existing record."); Mercado v. Senkowski, 736 F. Supp. 28, 29 (E.D.N.Y. 1990); Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N Y 1987)("The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level."); United States ex rel. LaSalle v. Smith, 632 F. Supp. 602, 603 (E.D.N.Y. 1986).
There is some reference in Padilla's Second Amended Petition to his having waived the right to appeal. (See Padilla 11/13/00 2d Am. Pet. at Ex. A: Padilla 1st Dep't Br. at 5.) Since the exact terms of the plea agreement are not before the Court, the Court is in no position to determine the effect of such a waiver under state (or federal) law.
Duarte v. Hershberger, 947 F. Supp. at 150; accord, e.g., Hernandez v. Lord, 2000 WL 1010975 at *4; Rodriguez v. People, 00 Civ. 1399, 2000 WL 962748 at *3-4 (S.D.N.Y. July 11, 2000)(Peck, M.J.). Duarte does not provide a standard, but makes clear that even under the AEDPA, the federal courts usually should defer to the state courts on unexhausted habeas claims.
See also, e.g., Oleva v. Bintz, 00 Civ. 1398, 2000 WL 378034 at *2 (S.D.N.Y. Apr. 12, 2000)(Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d at 611; Morris v. Reynolds, 48 F. Supp.2d 379, 384 (S.D.N.Y. 1999)(Baer, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d at 421; Rivera v. New York State Parole Div., 98 Civ. 7555, 1999 WL 246752 at *3-4 (S.D.N Y Apr. 1, 1999)(Rakoff, D.J. Peck, M.J.); Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N.Y. 1998)(Preska, D.J. Peck, M.J.); Fennell v. Artuz, 14 F. Supp.2d 374, 379 (S.D.N.Y. 1998)(Preska, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *3-4 (S.D.N.Y. May 19, 1998) (Cote, D.J. Peck, M.J.); Espinal v. Walker, 97 Civ. 3187, 1998 WL 151273 at *4 (S.D.N.Y. March 27, 1998)(Patterson, D.J. Peck, M.J.); Diaz v. Coombe, 1997 WL 529608 at *4; Fluellen v. Walker, 975 F. Supp. 565, 568 (S.D.N.Y. 1997)(Wood, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997)(Rakoff, D.J. Peck, M.J.); Walker v. Miller, 959 F. Supp. at 642.
The Court notes that several district judges in this Circuit have expressed the test as whether the unexhausted claim is "patently frivolous," e.g., Turner v. Senkowski, No. 97-CV-653, 1998 WL 912011 at *4 (W.D.N Y Nov. 23, 1998), while other courts express the test as whether'"it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,"' in which case the Court should dismiss the unexhausted claim on the merits (or rather the clear lack thereof), Jones v. Morton, 195 F.3d 153, 156 n. 2 (3d Cir. 1999). See, e.g., Hernandez v. Lord, 2000 WL 1010975 at *4 n. 8 (collecting cases under each of these two standards).
The Court here need not decide what standard generally would be appropriate to use to determine when to consider the merits of unexhausted claims pursuant to § 2254(b). Suffice it to say that in this case, where Padilla's ineffective assistance of counsel claim and his involuntary guilty plea claim — the only claims in his habeas petition — have not been addressed by the state courts and where the parties will need to make a record as to those claims, the Court believes it appropriate to decline to exercise its discretion to decide Padilla's petition on the merits. This best comports with the pre-AEDPA rule of total exhaustion adopted by the Supreme Court in Rose v. Lundy, 455 U.S. 509, 510, 518-20, 102 S.Ct. 1198, 1199, 1203-04 (1982), and the rationale of Duarte v. Hershberger, discussed above.
Whatever the stated standard used by other decisions, the Court strongly suspects that the real standard being used by the federal courts is whether it is easier to dismiss as unexhausted or easier to reach the merits of the unexhausted claim. Thus, for example, where the issue of whether the claim is exhausted is somewhat questionable, but the lack of the merit of the claim is easily shown, it may be more appropriate for the Court to reach the merits. See, e.g., Oleva v. Bintz, 2000 WL 378034 at *4 n. 10; Orraca v. Walker, 58 F. Supp.2d at 612 n. 9; Morris v. Reynolds, 48 F. Supp.2d at 385 n. 8; Otero v. Stinson, 51 F. Supp.2d at 422 n. 8; Rivera v. New York State Parole Div., 1999 WL 246752 at *4 n. 4; Cowans v. Artuz, 14 F. Supp.2d at 507 n. 5; Benitez v. Senkowski, 1998 WL 265245 at *4 n. 5.
See, e.g., Rodriguez v. People, 2000 WL 962748 at *4 (ineffective assistance and other habeas claims dismissed without prejudice because, inter alia, of need for factual record); Oleva v. Bintz, 2000 WL 378034 at *3; Oppenheimer v. Kelly, 97 Civ. 3035, 1999 WL 435159 at *3-4 n. 1 (S.D.N.Y. June 24, 1999)("The Court notes . . . that although it has the option to deny petitioner's claims on the merits [under § 2254(b)], it would not be appropriate to do so here because of the undeveloped factual record with respect to petitioner's ineffective assistance claim."); Orraca v. Walker, 53 F. Supp.2d at 612 (declining to decide petition on merits where three claims had not been addressed by state courts and parties would need to make record as to some of the claims); Benitez v. Senkowski, 1998 WL 265245 at *4 (declining to decide petition on merits where one of the claims — that evidence did not prove petitioner's guilt beyond a reasonable doubt — was unexhausted; "it is particularly appropriate for the state courts to review such a fact-based claim in the first instance"); see also, e.g., Morris v. Reynolds, 48 F. Supp.2d at 385 (declining to exercise power to decide petition on merits where three of four claims not presented to any state appellate court); Rivera v. New York State Parole Div., 1999 WL 246752 at *4 (declining to decide petition on merits where petitioner asserted a single claim that was not presented to state appellate courts); Cowans v. Artuz, 14 F. Supp.2d at 507 (declining to decide petition on merits where none of petitioner's five habeas claims had been presented to state courts); Fennell v. Artuz, 14 F. Supp.2d at 379.
The Court notes that Padilla should not be heard to complain about the Court's decision as to his petition, since under the AEDPA, this Court can reach the merits as to unexhausted claims only if it denies them. See 28 U.S.C. § 2254(b)(2)(1998)("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
CONCLUSION
For the reasons set forth above, the Court should dismiss Padilla's federal habeas petition without prejudice, because he has failed to exhaust his ineffective assistance of counsel and involuntary guilty plea claims in state court. The Court warns Padilla that when he returns to state court to exhaust by filing a CPL § 440.10 application in the state trial court, any federal habeas petition that he brings thereafter will be subject to the AEDPA's one-year statute of limitations, as tolled by the time state collateral motions are pending and as tolled by the pendency of this petition. See, e.g., Walker v. Artuz, 208 F.3d 357, 360 (2d Cir. 2000); Rodriguez v. People, 00 Civ. 1399, 2000 WL 962748 at *5 (S.D.N.Y. July 11, 2000)(Peck, M.J.); Oleva v. Bintz, 00 Civ. 1398, 2000 WL 378034 at *4 (S.D.N.Y. April 12, 2000)(Peck, M.J.), report rec. adopted, slip op. at 1-2 (S.D.N.Y. May 5, 2000)(Wood, D.J.). Padilla would be well advised, therefore, to file his CPL § 440.10 application in state court raising his ineffective assistance and involuntary guilty plea claims before Judge Marrero rules on this Report and Recommendation.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, 40 Centre Street, Room 414, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Marrero. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).