Opinion
97 Civ. 3037 (RCC) (HBP).
May 26, 2000.
John H. Jacobs, Esq., New York, N.Y.
Bruno V. Gioffre, Jr., Esq., Assistant Attorney General, Attorney General's Office New York, N.Y.
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, United States District Judge,
I. Introduction
Petitioner Ali Abdul Rashid, also known as Chester Bruce, seeks, by his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an order vacating a judgment of conviction entered on December 22, 1983, after a jury trial, by the Supreme Court, New York County (Leonforte, J.), for one count of criminal possession of a controlled substance in the first degree in violation of New York Penal Law § 220.21(1); one count of criminal sale of a controlled substance in the third degree in violation of New York Penal Law § 220.16(1), and three counts of criminal possession of a controlled substance in the third degree in violation of New York Penal Law § 220.16(1). By that judgment, petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of fifteen years to life on the first degree criminal possession count and four concurrent terms of six to twelve years on the other counts. Petitioner was released from custody on June 16, 1999, and is subject to lifetime parole.
For the reasons set forth below, I respectfully recommend that the petition be denied.
II. Facts
Petitioner's conviction arose out of the sale of narcotics in the vicinity of Lenox Avenue and West 115th Street in Manhattan on May 7, 1982. The evidence at trial established the following facts.
A. Background
On May 7, 1982, at approximately 2:00 P.M., Police Officer John Kane set up surveillance in the vicinity of Lenox Avenue and West 115th Street in Manhattan, where he observed group of individuals gathered outside of an abandoned building on 115th Street (Tr. 59, 61).
References to "Tr." are references to the trial transcript.
Using binoculars from the fourth floor of a nearby building, Officer Kane observed an individual, later identified as George Threat, standing in front of the abandoned building (Tr. 71, 73). Officer Kane's position was approximately three hundred (300) feet away from where Threat was standing (Tr. 71). Officer Kane described the binoculars he was using as "seven power" binoculars, which cause objects seventy feet away from the user to appear to be only ten feet away (Tr. 71-72).
At approximately 2:50 P.M., Officer Kane observed petitioner approach Threat and speak to him (Tr. 73). As petitioner and Threat stood together, another individual approached them, spoke to petitioner and handed money to petitioner (Tr. 74). Petitioner counted the money and then said something to Threat, who left the front of the building and went into a nearby alley (Tr. 74). A minute later, Threat returned to the front of the building and dropped a glassine envelope on the ground (Tr. 75). The individual who had handed the money to petitioner picked the envelope up and walked away (Tr. 76).
Officer Kane observed the same sequence of events occur, with different buyers, at 3:02, 3:07 and 3:13 P.M. These transactions varied from the first only in that Threat handed the glassine envelope directly to the buyers on these subsequent occasions (Tr. 77). At approximately 3:52 P.M., an individual later identified as Michael McMurray approached petitioner and Threat, and engaged in an identical transaction (Tr. 81). After receiving a glassine envelope from Threat, McMurray placed it in his right front pants pocket and walked away (Tr. 82).
After observing the transaction involving McMurray, Officer Kane contacted one of his backup team, Officer Hannigan, gave him McMurray's description and route, and told him that McMurray had placed an envelope in his pocket (Tr. 82). Officer Hannigan and another officer arrested McMurray at approximately 3:53 P.M., and recovered a torn glassine envelope containing white powder from his right front pocket (Tr. 207, 209).
Officer Kane also described petitioner and Threat to Officer Hannigan, gave him their location, and instructed Hannigan to place them both under arrest (Tr. 86). Officer Kane described petitioner as "a male black with sunglasses, [wearing] a maroon jacket . . . and dungarees" (Tr. 86).
At approximately four o'clock, Officer Kane observed two police cars pull up in front of the abandoned building, where petitioner, Threat and ten to twelve other individuals were standing (Tr. 87, 88, 93). Officer Hannigan approached Threat and placed him under arrest (Tr. 88, 214). Sergeant John Quinn approached petitioner (Tr. 278). Petitioner began to walk away from Quinn, and then ran through an empty lot towards 116th Street (Tr. 88, 90, 95, 216, 279, 360-61). Sergeant Quinn gave chase, but petitioner got away from him when Quinn dropped his police radio and stopped to recover it (Tr. 279).
Petitioner was apprehended a few minutes later by Officer Peter Mooney, in a subway train that was stopped at the station at 116th Street and Lenox Avenue. Officer Mooney and his partner had received petitioner's description at approximately 4:04 P.M., and subsequently observed petitioner running into the subway station (Tr. 376-77). Both officers pursued petitioner into the station and onto the train, where Officer Mooney observed petitioner taking off his maroon jacket (Tr. 377, 380). Petitioner was breathing hard, and appeared to be in an excited condition (Tr. 282-83, 382).
After arresting Threat, Officer Hannigan recovered a bag from the alley (Tr. 219). It contained a number of large and small glassine envelopes containing white powder, including two torn envelopes (Tr. 219, 221). One of these torn envelopes matched the envelope recovered from McMurray (Tr. 221). Laboratory analysis later showed that these envelopes contained heroin and cocaine (Tr. 398, 423).
B. Petitioner's Parole Revocation Hearing
Petitioner was on parole at the time of his arrest, and was initially charged with violating the conditions of his parole by selling heroin. A parole revocation hearing was held on August 17, 1982. Officer Kane testified in support of the charge, and described the transaction he had witnessed between petitioner, Threat and McMurray and petitioner's subsequent flight (P. 8-9). Officer Kane also testified that the police laboratory report confirmed that the substance in the glassine envelopes was heroin, although the laboratory report itself was not offered into evidence (P. 11-12).
References to "P." are references to petitioner's parole revocation hearing transcript (Amended Petition, Ex. C).
On cross-examination, petitioner's counsel elicited from Officer Kane the fact that petitioner was carrying $580.00 at the time of his arrest (P. 7, 29). Petitioner then presented five witnesses of his own, one of whom was McMurray. Two of these witnesses, petitioner's mother and cousin, testified that the $580 petitioner had been carrying at the time of his arrest was intended as partial payment for repairs to petitioner's cousin's motorcycle, and that petitioner had intended to deliver the money to a repair shop in Queens, New York, on the day of his arrest (P. 33, 36). Two other witnesses testified that petitioner had been attending religious services near Lenox Avenue and 116th Street while Officer Kane was conducting surveillance on 115th Street (P. 44, 47). Michael McMurray admitted that he had purchased heroin from George Threat on the afternoon of May 7, but testified that petitioner was not present during the transaction (P. 51). Finally, petitioner testified on his own behalf that he had been attending religious services that afternoon, and, after the conclusion of the services, had boarded the subway with the intention of traveling to the motorcycle repair shop (P. 59). In support, petitioner offered a letter which he claimed was from the shop regarding the repairs (Tr. 65).
The Parole Hearing Officer issued a written decision on September 2, 1982, dismissing the charge for insufficient evidence (Amended Petition, Ex. B). In a section of his Decision Notice entitled "Reasons for Conclusions," the Hearing Officer found that:
Substantial unimpeached evidence was provided in support of [petitioner's] position. His mother and cousin offered testimony concerning the money which was in his possession. A document was offered to prove the existence of the obligation. There were two witnesses who alleged that the subject in question was attending a religious meeting during the time in question. The admitted purchaser of the drugs testified that he transacted solely with [Threat] and he denied knowledge of [petitioner]. It is noted further that the subject was arrested some distance away on a subway train by another officer (not present) based on a limited description. Moreover, no proof was provided that the alleged substance was illegal.
(Amended Petition, Ex. B).
C. Petitioner's Trial and Sentencing
Petitioner's trial commenced on June 13, 1983. Ruling on a pretrial application by petitioner's counsel, the Trial Court suppressed evidence of the $580 dollars petitioner was carrying at the time of his arrest (Tr. 30). The Trial Court also ruled that the prosecution would be allowed to introduce evidence of each of the four transactions Officer Kane observed prior to the transaction involving McMurray, holding that the transactions were admissible to show petitioner's intent (Tr. 28-29, 36).
The Trial Court also permitted Officer Kane to testify, over petitioner's objection, as to the usual roles of individuals involved in narcotics transactions based on his experiences and observations of other drug sales (Tr. 125). Officer Kane testified that it was common for two individuals to conduct transactions, with one, the "money man," taking money from prospective customers, and the other, the "handoff man," delivering the drugs to the buyer (Tr. 127-28).
Petitioner's trial counsel did not deliver an opening statement. Counsel stated that "[t]he [petitioner] will rely on the burden of proof being on the People. We will waive." (Tr. 55). Counsel did not present any witnesses or evidence, but rather cross-examined the prosecution's witnesses and challenged the credibility and reliability of the officers' identification testimony. On summation, petitioner's trial counsel argued that Officer Mooney apprehended the wrong man based on an insufficient description, and that Sergeant Quinn, believing that he would face criticism for letting a suspect elude him on foot, had a motive to misidentify petitioner as the suspect who ran from the scene (Tr. 524-25, 539). Petitioner's counsel also argued that, if the jury was to believe that petitioner was the man in the maroon jacket, the evidence adduced at trial was still insufficient to prove that petitioner was in possession of the drugs found in the alley (Tr. 549).
The Trial Court charged the jury on the issue of intent as follows: "[Y]ou may infer, though you are not required to, that a person intends the natural, reasonable and probable consequences of his acts" (Tr. 648). Defense counsel did not object to this portion of the charge.
Prior to sentencing, the Trial Court held a hearing to determine whether petitioner should be sentenced as a second felony offender. The Court considered petitioner's claim that he had been denied an adequate explanation of his rights at the time he pleaded guilty to the predicate offense, and, after review of the minutes of that plea, concluded that petitioner's plea had been taken "knowingly, voluntarily and intelligently" (S. 7). Accordingly, the Trial Court sentenced petitioner as a second felony offender (S. 8).
References to "S." are references to the transcript of petitioner's sentencing on December 22, 1983.
D. Post-Trial Proceedings
Petitioner subsequently took an appeal to the Appellate Division, First Department, arguing that (1) the state failed to establish his guilt beyond a reasonable doubt (2) the Trial Court improperly allowed introduction of evidence of uncharged crimes; (3) the Trial Court's sentencing of petitioner as a second felony offender was tainted by flaws in his plea to the predicate offense; (4) the sentence imposed was harsh and excessive; (5) petitioner was denied effective assistance of counsel, and (6) the Trial Court erred in charging the jury on permissible inferences regarding intent (Longo Aff. Ex. A). The Appellate Division affirmed petitioner's conviction on May 27, 1986, without opinion. People v. Bruce, 120 A.D.2d 993, 502 N.Y.S.2d 567 (1st Dep't 1986). The New York Court of Appeals denied petitioner's application for leave to appeal on September 11, 1986. People v. Bruce, 68 N.Y.2d 810, 499 N.E.2d 876, 507 N.Y.S.2d 1027 (1986). Petitioner did not file a petition for certiorari with the United States Supreme Court.
Petitioner included in this section of his brief an argument that the Trial Court committed reversible error when it allowed Officer Kane to testify as to the usual practices involved in the sale of drugs (Affidavit of Marisa Longo, sworn to February 16, 1999 ("Longo Aff."), Ex. A at 17).
Petitioner raised the jury charge issue in a supplemental brief to the Appellate Division (Longo Aff. Ex. A).
Petitioner did, however, file a motion pursuant to New York CPL § 440.10 in the Supreme Court, New York County, raising grounds of ineffective assistance of counsel; prosecutorial misconduct; "denial of alibi witnesses during trial"; violation of "state and constitutional rights"; "grand jury testimony conflicting"; and prejudicial rulings by the Trial Court (Petition at 3-4). The motion was denied on December 31, 1985, and petitioner did not appeal the denial (Petition at 3-4). Petitioner also states that he filed a second § 440.10 motion on April 18, 1997, raising grounds of ineffective assistance; withholding of favorable evidence by the prosecution, and insufficiency of the grand jury indictment (Petition at 4). Petitioner does not indicate the disposition of the second motion (Longo Aff. ¶ 6).
Respondent's affidavit in opposition states that "[d]espite a good faith effort, respondent has failed to procure copies of these motions. Upon information and belief, the documents do not exist" (Longo Aff. ¶ 6).
E. Habeas Proceedings
Petitioner's original pro se petition, read leniently, asserts seven claims. First, petitioner claims that he was denied the effective assistance of trial counsel by counsel's failure to call any of the witnesses who testified at petitioner's parole revocation hearing, counsel's "damaging" remarks during summation, and counsel's failure "to pursue the claim that evidence presented to [the] grand jury was legally insufficient hearsay evidence" (Petition at 5). Second, petitioner claims that the Trial Court erroneously admitted evidence of four uncharged drug sales to show intent and permitted Officer Kane to testify as to the usual practice of the sale of narcotics. Third, petitioner claims that the Trial Court committed error when it charged the jury that it could infer that a person intends the natural consequences of his actions when considering whether petitioner had the requisite intent to support a conviction. Fourth, petitioner alleges that the prosecutor failed to turn over the transcript of petitioner's parole revocation hearing, which petitioner claims constituted favorable evidence. Fifth, petitioner asserts that the laboratory reports submitted to the grand jury, showing the presence of heroin and cocaine in the envelopes recovered from the alley and McMurray's pocket, were insufficient to support his indictment because they contained inadmissible hearsay statements. Sixth, petitioner claims that he was not advised of his right to remain silent when he pleaded guilty to the predicate offense, and that he was, therefore, sentenced as a predicate felony offender in violation of his constitutional rights. Seventh, he claims that the evidence adduced at trial was insufficient to support his conviction.
On January 8, 1998, the Honorable Sonia Sotomayor granted respondent's motion to dismiss the petition as untimely under the Second Circuit's decision in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), which seemed to suggest that habeas petitioners whose convictions became final before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") were entitled to a "reasonable time" after the AEDPA's effective date to file initial petitions for habeas corpus relief. Rashid v. Khulmann, 991 F. Supp. 254 (S.D.N.Y. 1998). Judge Sotomayor concluded that the petition, filed three hundred and fifty-nine (359) days after the effective date of the AEDPA, and over ten years after petitioner's conviction became final, was not filed within a reasonable time.
On August 26, 1998, Judge Sotomayor granted petitioner's Rule 60(b) motion and reinstated this action in light of the Second Circuit's decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), which clarified Peterson and held that habeas petitioners whose convictions became final before the effective date of the AEDPA were entitled to one full year from the effective date to file an initial petition.
On February 9, 2000, petitioner, assisted by counsel, filed an amended petition for habeas corpus relief, which is styled as a "supplement" to petitioner's initial pro se petition (Amended Petition at 1). Petitioner's amended petition addresses only petitioner's claim that he was denied effective assistance of counsel by his trial counsel's failure to call any of the witnesses who testified at petitioner's parole revocation hearing.
Respondent contends that petitioner's claims are meritless. Respondent also argues that petitioner's claims regarding (1) the sufficiency of the evidence presented to the grand jury and (2) the state's alleged failure to provide petitioner with transcripts are procedurally barred because petitioner failed to raise them on direct appeal. I address the procedural issues before turning to the merits of petitioner's claims.
III. Analysis
A. Exhaustion and Procedural Bar
It is fundamental that a state prisoner seeking to vacate his conviction on the ground that his federal constitutional rights were violated must first exhaust all available state remedies. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275 (1971). Furthermore,
[t]o satisfy the exhaustion requirement with respect to a particular legal claim, the petitioner must fairly present it to the State Courts in order that our sister judicial system may have a fair opportunity to consider the claim and correct any asserted constitutional defects in petitioner's conviction before recourse is sought in the federal courts. See Picard [v. Connor, supra, 404 U.S. at 275-76]; Dorsey [v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)].Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir. 1999) See also Norman v. People, 97 Civ. 7051 (MBM), 1999 WL 983869 at *3 (S.D.N.Y. Oct. 29, 1999); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360-61 (S.D.N.Y. 1999); Meachem v. Keane, 899 F. Supp. 1130, 1137 (S.D.N.Y. 1995). Exhaustion requires that "[a] petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). See also O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
In Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982), the Second Circuit set forth the 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:
(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.696 F.2d at 194.
However, the mere invocation of the terms "due process" and "fair trial" in an appellate brief is not sufficient to fairly present a federal constitutional claim to the state courts. Daye, 696 F.2d at 193 ("'Alleging lack of a fair trial does not convert every complaint about evidence or a prosecutor's summation into a federal due process claim.'"), quoting Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir. 1982). See also Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) ("[A] mere statement that 'due process' rights have been violated does not necessarily give rise to a specific federal constitutional claim."); Lugo v. Kuhlmann, supra, 68 F. Supp.2d at 360-61; Mendez v. Superintendent, Adirondack Corr. Fac., 94 Civ. 6500 (RWS), 1996 WL 66117 at *2 (S.D.N.Y. Feb. 14, 1996), aff'd mem., 104 F.3d 356 (2d Cir. 1996).
Unexhausted claims may be deemed exhausted if the petitioner no longer has any remedy available in the state courts. In the absence of a showing of cause for and prejudice from the failure to raise the claim in conformity with state procedural requirements, or a fundamental miscarriage of justice, such a claim will be forfeited and barred from serving as the basis for habeas corpus relief.
Where a petitioner has failed to present his or her federal claims to the state courts in accordance with state procedural requirements, and no longer has recourse to state review, he or she will be found to have met the exhaustion requirement of 28 U.S.C. § 2254(b); however, the claims will be subject to procedural bar in this court. See Coleman v. Thompson, 501 U.S. 722 (1991); Castille v. Peoples, 489 U.S. 346, 350 (1989); Teague v. Lane, 489 U.S. 288, 297-98 (1989). If there is such a procedural bar, the claim cannot be heard absent a showing of cause for the procedural default and prejudice. Wainwright v. Sykes, 433 U.S. 72 (1977).Norwood v. Hanslmaier, 93 CV 3748, 1997 WL 67669 at *2 (E.D.N Y Feb. 11, 1997). See also Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."); Engle v. Isaac, 456 U.S. 107, 129 (1982) ("[W]hen a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice.").
As noted above, a petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice, i.e., a showing of actual innocence[,]" to overcome the procedural bar.Jordan v. Lefevre, 22 F. Supp.2d 259, 269 (S.D.N.Y. 1998) (internal quotation marks omitted), rev'd in part on other grounds, 206 F.3d 196 (2d Cir. 2000). See Coleman v. Thompson, supra, 501 U.S. at 750; Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994); Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994);Gibriano v. Attorney General, 965 F. Supp. 489, 493 n. 5 (S.D.N.Y. 1997). Cause may be demonstrated by "a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by state officials made compliance impracticable, . . . [or that] the procedural default is the result of ineffective assistance of counsel."Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), quoting Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotation marks and citations omitted).
In this case, it is clear that petitioner's claims regarding the prosecution's alleged failure to provide transcripts and the insufficiency of the evidence presented to the grand jury were not presented to the Appellate Division on direct appeal (see Longo. Aff., Ex. A). Furthermore, petitioner acknowledges that he did not seek leave to appeal the denial of his initial § 440.10 motion to the Appellate Division as authorized by N.Y. Crim. Pro. Law § 450.15. Finally, assuming that petitioner properly filed a second § 440.10 motion, petitioner does not indicate its disposition, if any, nor does he assert that any appeal was taken to the Appellate Division. Accordingly, these claims are unexhausted. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (failure to seek appeal of denial of 440.10 motion renders claim unexhausted in state courts); Gibriano v. Attorney General, supra, 965 F. Supp. at 492; Devito v. Racette, CV-91-2331 (CPS), 1992 WL 198150 at *3 (E.D.N.Y. Aug. 3, 1992).
However, since petitioner no longer has any recourse to state review of these claims in the Appellate Division or Court of Appeals, these claims will be deemed exhausted but procedurally barred. See N.Y. Crim. Pro. Law § 440.10(2)(c) and 460.10(4)(a); McKinney's N.Y. Court Rules § 500.10(a) (1999).See also Grey v. Hoke, supra, 933 F.2d at 120 ("Petitioner cannot again seek leave to appeal this claim in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled."); Devito v. Racette, supra, 1992 WL 198150 at *4.
Accordingly, unless petitioner can demonstrate cause for and prejudice from his failure to comply with state procedural requirements, or can show that a failure to consider his claim will result in a fundamental miscarriage of justice, he cannot overcome the procedural bar to these two claims. See Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993); Jordan v. Lefevre, supra, 22 F. Supp.2d at 262. Since petitioner has not attempted to show either cause for or prejudice from his default, and has made no showing of actual innocence, his claims concerning the sufficiency of the evidence presented to the grand jury and the prosecution's failure to provide transcripts are procedurally barred. See Bossett v. Walker, supra, 41 F.3d at 829.
Turning to the merits of petitioner's remaining claims, the appropriate standard of review is set forth by Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, which provides, in pertinent part:
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).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct 1495 (2000), the Supreme Court explained that:
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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application of" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523. The Court granted habeas relief in that case, finding that the state court's decision was both "contrary to" and involved an "unreasonable application of" established law. Williams, 120 S.Ct. at 1512.
In this case, an extended analysis of these two clauses is unnecessary, because petitioner has not shown constitutional error under either standard.
1. Ineffective Assistance of Counsel
Petitioner claims that his trial counsel was ineffective in three respects. First, he takes issue with counsel's failure to pursue petitioner's claim that his indictment was invalid. Second, he argues that counsel failed to call at trial any of the alibi witnesses who testified at petitioner's parole revocation hearing. Finally, petitioner asserts that counsel prejudiced him by making "damaging" statements in her summation.
In order to prevail on an ineffective assistance of counsel claim, a habeas petitioner must meet the now-familiar, two-part test set forth in Strickland v. Washington, 466 U.S. 668, 686-87 (1984).
The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the judicial process that the trial cannot be relied on as having produced a just result.
* * *
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Accord Hernandez v. United States, 202 F.3d 486, 488 (2d Cir. 2000); Guerrero v. United States, 186 F.3d 275, 281-82 (2d Cir. 1999); McKee v. United States, 167 F.3d 103, 106-07 (2d Cir. 1999); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998).
In determining whether counsel's performance was objectively deficient, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonably acceptable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."Strickland, supra, 466 U.S. at 689 (internal quotation marks omitted).
The second prong of the test — actual prejudice — requires that the petitioner show that, but for counsel's errors, there is a "reasonable probability" that the result of the trial would have been different. Strickland, supra, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Prejudice must be affirmatively proven; it will be presumed only in a limited number of exceptional circumstances, none of which are relevant to the case at hand. Id. at 692-93.
Prejudice will be presumed where a petitioner is subject to "[a]ctual or constructive denial of the assistance of counsel," or where the state has directly interfered with counsel's representation, or where "counsel is burdened by an actual conflict of interest." Strickland, supra, 466 U.S. at 692-93.
Finally, since the test is conjunctive, a habeas petitioner's failure to satisfy either prong requires that the challenge to the conviction be rejected. Id. at 697.
Judged by this standard, petitioner's claims of ineffective assistance are meritless.
Petitioner first argues that his trial counsel was deficient for failing to "pursue the claim that evidence presented to [the] grand jury was legally insufficient" because it consisted of laboratory reports that petitioner alleges were "hearsay evidence" (Petition at 5). It is clear, however, that an attorney is under no obligation to investigate every line of defense a defendant suggests. Instead, "an attorney is required only to make a reasonable decision about whether to investigate a particular line of defense based upon the overall defense strategy." United States v. Romero, No. 91 Cr. 586 (RPP), 1993 WL 485677 at *7 (S.D.N Y Nov. 22, 1993), aff'd, 54 F.3d 56 (2d Cir. 1995). Here, it was completely reasonable for trial counsel to forego an attack on the sufficiency of petitioner's indictment. The odds of success of a challenge based on the laboratory reports submitted to the grand jury were almost nil, since "dismissal of an indictment under [New York Law] must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the Grand Jury," People v. Carey, 241 A.D.2d 748, 741, 660 N.Y.S.2d 886, 889 (3rd Dep't 1997) (holding that admission of hearsay affidavit in grand jury proceeding did not warrant dismissal of indictment), and the hearsay nature of laboratory reports, without more, is insufficient to invalidate an indictment. See People v. Miles, 220 A.D.2d 254, 254, 632 N.Y.S.2d 74, 75 (1st Dep't 1995) ("The hearsay nature of the lab report presented to the grand jury as proof that the substance defendant was charged with selling and possessing contained cocaine did not render the indictment jurisdictionally defective.").
Petitioner next claims that his counsel was deficient for failure to present the witnesses who testified at his parole revocation hearing. Strategic decisions by trial counsel regarding whether to call alibi witnesses are generally not grounds for a finding of ineffective assistance. See Lawson v. Caspari, 963 F.2d 1094, 1096 (8th Cir. 1992); Allah v. Kelly, 32 F. Supp.2d 592, 599 (W.D.N.Y. 1998); Nieves v. Kelly, 990 F. Supp. 255, 264-65 (S.D.N.Y. 1997); Munoz v. Keane, 777 F. Supp. 282, 288-89 (S.D.N.Y. 1991) ("Given the overwhelming evidence that [petitioner] participated in the drug transaction at issue, it was reasonable for defense counsel to conclude, as a strategic matter, that presenting testimony of the alleged alibi witnesses would be damaging to [petitioner's] case."), aff'd sub nom Linares v. Senkowski, 964 F.2d 1295 (2d Cir. 1992); Minor v. Henderson, 754 F. Supp. 1010, 1019 (S.D.N.Y. 1991) ("[C]omplaints of uncalled witnesses are not favored in federal habeas review, because the presentation of testimonial evidence is a matter of trial strategy."); Sanchez v. Scully, 613 F. Supp. 1065, 1068 n. 5 (S.D.N.Y. 1985) (denying habeas relief for failure to call alibi., witness; decision whether to present an alibi witness was a tactical choice which did not rise to the level of a constitutional violation). Habeas relief is warranted, however, where counsel's ignorance of the law prejudices a defendant by precluding the presentation of an alibi defense. See Noble v. Kelly, 97 Civ. 6907 (LBS), 2000 WL 232623 at *17 (S.D.N.Y. Feb. 28, 2000) ("Errors caused by counsel's ignorance of the law are errors that run afoul of the objective standard of reasonableness."), citing Kimmelman v. Morrison, 477 U.S. 365, 385 (1986).
Petitioner has failed to show that counsel's decision in this case was erroneous or uninformed. Although petitioner claims that counsel failed to conduct an adequate investigation of his potential alibi witnesses, he concedes that trial counsel was "aware of the witnesses called at [petitioner's parole revocation] hearing" (Amended Petition at 5). Moreover, the trial transcript confirms that counsel was familiar with the testimony offered at that hearing (Tr. 19-20). Since counsel was aware of the witnesses and testimony presented at the parole hearing, there is no basis for petitioner's assertion that counsel had an obligation to conduct further investigations or interviews.Strickland, supra, 466 U.S. at 691 ("[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."). Furthermore, counsel's decision not to call petitioner's mother or cousin was entirely reasonable, since their testimony concerned only petitioner's possession of $580 dollars at the time of his arrest, and evidence of the amount of money petitioner was carrying was suppressed. Thus, their testimony would have been irrelevant.
In arguing for suppression of the $580 petitioner was carrying at the time of his arrest, trial counsel stated:
[I]f the evidence of the 580 dollars that was recovered from my client at the time of his arrest were to be introduced on the prosecution's case, I would then be put in a position where I have to call witnesses to explain [petitioner's] possession of that money.
In fact, his mother and his cousin would be called as witnesses to explain his having that amount of money on his person at the time of this offense.
(Tr. 19-20).
Bearing in mind that is inappropriate for a federal habeas court to "second guess" trial counsel's strategic or tactical decisions, petitioner's assertion that trial counsel "had nothing to lose" by calling alibi witnesses is not sufficient to defeat the strong presumption that counsel's decision fell within the bounds of reasonable and competent legal assistance.
Even assuming, however, that counsel's decision to forego further investigations and interviews rendered counsel's representation deficient, petitioner cannot show that he was prejudiced thereby. Given the extensive eyewitness testimony tying petitioner to the crime, the alibi testimony in question here would not have created a reasonable probability of a different outcome. See Johnson v. Mann, No. 92 Civ. 1909 (TPG), 1993 WL 127954 at *1 (S.D.N.Y. April 20, 1993); Stubbs v. Thomas, 590 F. Supp. 94, 101 (S.D.N.Y. 1984).
Finally, petitioner argues that habeas relief is warranted by counsel's "damaging" statements during summation, "conceding the elements of the crime charged" (Petition at 5). Although petitioner does not identify which of counsel's statements he considers to have been damaging, there are a small number of statements in the record which, at first blush, could appear to be concessions. At certain points in her summation, counsel referred to the drugs found in the alley as an "A-1 felony stash" (Tr. 524, 526) and the case as an "A-1 case" (Tr. 521). Referring to the transactions observed by Officer Kane, counsel stated that "[t]here is no reason those people are not guilty of a crime. When they buy drugs on a street they are committing a crime" (Tr. 542). These statements, however, were made in the context of counsel's argument that petitioner was misidentified and was not the man in the maroon jacket observed working in concert with George Threat (Tr. 521), and counsel did not concede that petitioner was involved in any criminal activity.
Nor was counsel's summation deficient in any other respect. A review of the trial transcript shows that counsel attacked the credibility of the prosecution's witnesses (Tr. 526); pointed out inconsistencies between the police officers' testimony at trial and before the grand jury (Tr. 522, 526), and suggested that Sergeant Quinn's initial failure to apprehend the suspect he was chasing gave the police a motive to arrest the first person they found who generally matched the suspect's description (Tr. 522, 524). Given the strength of the prosecution's evidence, defense counsel "could do little more [in summation] than challenge the credibility of the prosecution's witnesses and question the procedures followed by the police, which [she] did." Munoz v. Keane, supra, 777 F. Supp. at 289.
2. The Trial Court's Evidentiary Rulings
Petitioner next claims that habeas relief is warranted by the Trial Court's decision to allow testimony regarding the four narcotics transactions which took place immediately prior to the transaction involving McMurray, and the admission of Officer Kane's testimony as to the usual practice of narcotics sales in the vicinity of petitioner's arrest.
A state trial court's decision to admit or exclude evidence is generally not susceptible to habeas review.
Evidentiary rulings are not ordinarily subject to habeas review, see Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998), but instead are generally left to the discretion of the trial court, see Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Only the introduction of improper evidence that "is so extremely unfair that its admission violates fundamental conceptions of justice" denies a defendant's right to due process and is reviewable by the habeas court. Id., quoting Dowling v. United States, 493 U.S. 342, 352 (1990) (internal quotations omitted). Evidence improperly admitted is "so extremely unfair" when it is "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan, 137 F.3d at 125, quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992).Ramos v. Keane, 98 Civ. 1604 (DLC), 2000 WL 12142 at *7 (S.D.N Y Jan. 6, 2000). See Rosario v. Kuhlman, 839 F.2d 918, 924-25 (2d Cir. 1988) ("[E]rroneous evidentiary rulings do not automatically rise to the level of constitutional error."); Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y.) ("In general, rulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue."), aff'd mem., 71 F.3d 406 (2d Cir. 1995); Schurman v. Leonardo, 768 F. Supp. 993, 1001 (S.D.N.Y. 1991).
Thus, a trial court's decision to admit evidence of uncharged crimes is a matter of discretion.
Federal reviewing courts recognize that evidentiary rulings about the admissibility of uncharged crime evidence lie within the sound discretion of the trial judge. See, e.g., United States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998). This is because the trial judge is in the best position to evaluate the evidence and its effect on the jury. See United States v. Smith, 727 F.2d 214, 220 (2d Cir. 1984) (and cases cited therein). Accordingly, whether review is direct or collateral, a trial judge's rulings on uncharged crime evidence will not be disturbed unless they were "arbitrary and irrational." United States v. Bok, 156 F.3d at 165 (quoting United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996).Gaetan v. Keane, No. CV 97-4356 (RR), 1999 WL 294728 at *5 (E.D.N.Y. March 24, 1999). See United States v. Lumpkin, 192 F.3d 280, 287 (2d Cir. 1999) ("We review a district court's decision to admit evidence of other crimes for abuse of discretion.");Hernandez v. Senkowski, No. CV 98-5270 (RR), 1999 WL 1495443 at *17 (E.D.N.Y. Dec. 29, 1999); Ayala v. Portuondo, 75 F. Supp.2d 194, 196 (S.D.N.Y. 1999).
Evidence of uncharged crimes is admissible to show motive, intent, plan, knowledge, identity or absence of mistake. Fed.R.Evid. 404(b). See United States v. Bok, supra, 156 F.3d at 165-66;Pastrana v. Senkowski, No. CV 97-5158 (RR), 1999 WL 1129050 at *7 (E.D.N.Y. Oct. 1, 1999); Sutton v. Herbert, 39 F. Supp.2d 335, 338-39 (S.D.N.Y. 1999); see also People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286, 294 (1901) (holding that evidence of other crimes is generally admissible under New York Law to show motive; intent; absence of mistake or accident; a "common scheme or plan", or the identity of the defendant).
In this case, the Trial Court ruled that evidence of the prior transactions was properly admissible to show petitioner's intent to possess and sell narcotics (Tr. 28, 511-13). Although the rule in the Second Circuit is that evidence of uncharged crimes is inadmissible to show intent where a defendant maintains that he did not commit the charged act at all, United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988), a defendant must "unequivocally" rely on such a defense and "indicate with sufficient clarity" that he does not dispute the issues of knowledge and intent. United States v. Tarricone, 996 F.2d 1414, 1422 (2d Cir. 1993). In this case, defense counsel's strategy was to hold the prosecution to its burden on every element of the charged crimes, and counsel vigorously disputed petitioner's knowledge of and intent to possess the drugs found in the alleyway. Thus, admission of similar act evidence was proper. See United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996) ("The court properly admitted the evidence of [defendant's] prior cocaine sales as proof of his intent to possess [cocaine] . . . Our holdings in Ortiz and United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980), are not to the contrary.").
The Trial Court's decision to admit this evidence was neither arbitrary nor irrational, and did not remove any reasonable doubt that would have otherwise existed. The evidence admitted here was particularly probative of petitioner's intent to commit the charged crimes, and was also relevant to establish the disputed issue of petitioner's identity and to show that he was acting in concert with Threat to sell narcotics. See Molineux, supra, 168 N.Y. at 293, 61 N.E. at 294. See also Diaz v. Garvin, 92 Civ. 4778 (MBM), 1995 WL 459250 at *3 (S.D.N.Y. Aug. 3, 1995) (holding that evidence of two drug sales allegedly made by the petitioner immediately before the sale for which he was arrested and charged was properly admitted as relevant to questions of intent and identity). Furthermore, the Trial Court clearly explained the grounds for the admission of this evidence, and instructed the jury not to consider it as evidence in chief (Tr. 626-27). See Joseph v. McGinnis, No. 97 Civ. 2969 (RMB), 1999 WL 595645 at *3 (S.D.N.Y. Aug. 9, 1999). Accordingly, habeas relief is not warranted on this claim.
Nor does the Trial Court's decision to allow police officers to testify as to the usual practice of narcotics sales warrant habeas relief. The opinion testimony of experienced police officers regarding drug-related activity or paraphernalia is admissible where it will assist the jury. See Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995) (reversing grant of habeas relief and holding that trial court properly admitted police officer's opinion concerning the drug-related use of items found in the petitioner's apartment); United States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992) ("[O]perations of narcotics dealers are a proper subject for expert testimony."), citing United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991);United States v. Campino, 890 F.2d 588, 593 (2d Cir. 1989) (same); United States v. Brown, 776 F.2d 397, 402 (2d Cir. 1985) (rejecting claim of error in admission of police officer's opinion testimony that defendant was a "steerer" in a drug transaction); Santos v. Keane, 95 Civ. 10752 (JGK), 1997 WL 414121 at *6 (S.D.N.Y. July 24, 1997) ("Expert testimony of an experienced police officer concerning drug-related use of items and the characteristics of a drug house is properly admissible."). In this case, the expert testimony of Officer Kane was properly admitted to explain to the jury the nature of the alleged transaction and to assist the jury in understanding petitioner's alleged role in that transaction. Accordingly, habeas relief is not warranted on this claim.
It does not appear that petitioner has exhausted this claim by adequately presenting it to the state courts in federal constitutional terms (see Longo Aff., Ex. A at 17). However, Section 2254 provides that a habeas court may reach the merits of an unexhausted claim in order to deny it. 28 U.S.C.A. § 2254(b)(2). See Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N Y 1998).
3. Jury Instructions
Petitioner next claims that the Trial Court's instruction on intent impermissibly shifted the burden of proof from the prosecution to petitioner.
At least in non-capital cases, jury instructions are issues of state law and as such rarely justify habeas relief. See Gilmore v. Taylor, 508 U.S. 333, 344 (1993); Estelle v. McGuire, 502 U.S. 62, 68 (1991). "For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973). Accord Evans v. Artuz, 68 F. Supp.2d 188, 196 (E.D.N.Y. 1999).
Here, petitioner asserts that the Trial Court's instruction on intent violated the rule set forth by the Supreme Court inSandstrom v. Montana, 442 U.S. 510 (1979) (Tr. 648) InSandstrom, the Court held that, in a criminal trial, the instruction "the law presumes that a person intends the ordinary consequences of his voluntary acts" impermissibly created a mandatory presumption of intent upon proof by the state of the other elements of the crime. Sandstrom, 442 U.S. at 524. Although it is clear that such a mandatory instruction is prohibited, the permissive instruction given here does not run afoul ofSandstrom. See Francis v. Franklin, 471 U.S. 307, 314 (1985) ("A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom."); accord Payne v. LeFevre, 825 F.2d 702, 707 (2d Cir. 1987); Erdheim v. Greiner, 22 F. Supp.2d 291, 297-98 (S.D.N.Y. 1998). Because the Trial Court correctly charged the jury that "you may" infer intent, the charge as given does not implicate the rule of Sandstrom.
The Trial Court charged the jury as follows: "[Y]ou may infer, though you are not required to, that a person intends the natural, reasonable and probable consequences of his acts" (Tr. 648).
4. Predicate Sentencing
Petitioner next asserts that he was improperly sentenced as a predicate felon because he was not advised of his right to remain silent at the allocution in connection with his prior conviction. Thus, petitioner argues that his prior conviction was invalid and that his enhanced sentencing as a predicate felon in this case is also invalid.
In order to satisfy the Constitution, a guilty plea must be intelligent and voluntary. Parke v. Raley, 506 U.S. 20, 28-29 (1992); Meyers v. Gillis, 93 F.3d 1147, 1151 (3rd Cir. 1996).
As a general matter, a plea is deemed 'intelligent' if the accused had the advice of counsel and understood the consequences of his plea, even if only in a fairly rudimentary way; it is deemed 'voluntary' if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally.Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988); accord Heron v. People, 98 Civ. 7941 (SAS), 1999 WL 1125059 at *5 (S.D.N.Y. Dec. 8, 1999).
Both the state court judge that accepted petitioner's plea on the predicate felony and the Trial Court judge here found that petitioner's plea was knowing and voluntary. The Trial Court reviewed the minutes of the prior allocution, and based his finding on that review. Such a factual finding is presumptively correct, 28 U.S.C. § 2254(e)(1); Parke v. Raley, supra, 506 U.S. at 35-36, and can be overcome only by clear and convincing evidence. Chapman v. VanZandt, 96 Civ. 6940 (JGK), 1997 WL 375668 at *4 (S.D.N.Y. July 8, 1997); Thomas v. Senkowski, 968 F. Supp. 953, 955 (S.D.N.Y. 1997); Meachem v. Keane, supra, 899 F. Supp. at 1140. Since petitioner has offered no evidence whatsoever to support his claim, the presumption is unrebutted. Thus, petitioner has failed to establish any constitutional issue concerning his sentencing as a predicate felon, and this claim does not justify the grant of habeas relief.
5. Sufficiency of the Evidence
Finally, petitioner claims that the evidence adduced at his trial was insufficient to support his conviction.
A defendant who challenges the sufficiency of the evidence "bears a heavy burden." United States v. Diaz, 176 F.3d 52, 89 (2d Cir. 1999).
In reviewing such a challenge, we must view the evidence, whether direct or circumstantial, in the light most favorable to the government and credit every inference that could have been drawn in its favor. See United States v. Salameh, 152 F.3d 88, 151 (2d Cir. 1998) (per curiam), cert. denied, [ 525 U.S. 1112], 119 S.Ct. 885, 142 L.Ed.2d 785 (1999). Further, we assess evidence not in isolation but in conjunction, see United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994), and the convictions must be affirmed, so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); [United States v.] Rosa, 11 F.3d [315] at 337 [(2d Cir. 1993)].United States v. Diaz, supra, 176 F.3d at 89. See also United States v. Gore, 154 F.3d 34, 39-40 (2d Cir. 1998); Watson v. Kelly, 91 Civ. 7925 (DAB), 1996 WL 409198 at *2 (S.D.N.Y. July 22, 1996).
Judged by the foregoing standards, the evidence adduced at trial was sufficient to support the jury's verdict. The prosecution offered eyewitness testimony from several police officers which established petitioner's participation in narcotics sales and subsequent flight from the scene, including the testimony of Officer Kane, who observed petitioner conducting sales for over an hour; a significant amount of narcotics was recovered from the scene of the sales, and petitioner was apprehended almost immediately at a nearby subway station, out of breath and attempting to shed his distinguishing maroon jacket. Viewed in a light most favorable to the prosecution, this evidence was sufficient to support the jury's verdict.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that the petition be dismissed.
I further recommend that, as petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not be issued. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1603 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983);Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000); Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000); Guerrero v. United States, 186 F.3d 275, 279 (2d Cir. 1999); Tankleff v. Senkowski, 135 F.3d 235, 241-42 (2d Cir. 1998). I further recommend that certification pursuant to 28 U.S.C. § 1915(a)(3) be issued that any appeal from this Report and Recommendation, or any Order entered thereon, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, United States District Judge, Room 1950, 500 Pearl Street, New York, New York 10007 and to the chambers of the undersigned, Room 750, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 n. 2 (2d Cir. 1983).