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dismissing habeas petition without prejudice because petitioner failed to exhaust available state remedies under § 2254(b) and directing petitioner to file a writ of coram nobis in the Appellate Division, First Department, to bring ineffective assistance of counsel claim for his counsel's failure to file a timely notice of appeal
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00 Civ. 1399 (KMW)(AJP)
July 11, 2000
REPORT AND RECOMMENDATION
To the Honorable Kimba M. Wood, United States District Judge:
Pro se petitioner Carlos Rodriguez seeks a writ of habeas corpus from his July 15, 1996 conviction in Supreme Court, New York County, of criminal weapons possession and sentence of three to six years imprisonment. (Pet. ¶¶ 1-4.) Rodriguez's habeas petition alleges that: (1) his conviction was obtained by use of evidence gained through an unconstitutional search and seizure (Pet. ¶ 12(A)), (2) he was denied effective assistance of counsel on appeal (Pet. ¶ 12(B)), (3) he was denied his right to appeal (Pet. ¶ 12(C)), and (4) he was denied his constitutional right to a speedy trial (Pet. ¶ 12(D)).
For the reasons set forth below, the Court should deny Rodriguez's petition without prejudice so that he can exhaust his ineffective assistance of counsel claim in state court.
PROCEDURAL BACKGROUND Rodriguez's Conviction and Post-Trial Motions in State Court
Rodriguez was convicted of criminal possession of a weapon in the third degree, and on July 15, 1996, was sentenced as a predicate felon to three to six years imprisonment. (7/15/96 Sentencing Transcript at 2-3, 11.) During sentencing, trial counsel told the Court that "Mr. Rodriguez has asked me to place on the record that he is going to appeal this conviction." (Id. at 10.)
Defense counsel concluded the sentencing by stating on the record that he had "given the defendant notice of his right to appeal and have advised him of his appellate right." (Id. at 12.)
Under New York law, a convicted defendant has a right to appeal the conviction within thirty days after the imposition of sentence, N.Y. CPL § 460.10(1)(a), and a "defendant who fails to appeal within that time defaults his right to appeal." Restropo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Neither Rodriguez nor his counsel filed a notice of appeal within that thirty-day period.
On October 7, 1998, Rodriguez filed a motion in the First Department for assignment of counsel on appeal and for leave to appeal in forma pauperis. (Ex. A: Rodriguez 10/7/98 Motions for Assignment of Counsel and to Proceed In Forma Pauperis.) The People opposed the motion on the ground that it was untimely under N.Y. CPL § 460.30(1), which allows extension of the time to file a notice of appeal only within one year of the deadline for having taken the appeal. (Ex. B: State Aff. in Response to Rodriguez Motion at 1.) On May 20, 1999, the First Department, construing Rodriguez's motion as requesting an extension of time to file a notice of appeal, denied Rodriguez's motion pursuant to CPL § 460.30(1). (Ex. C: 5/20/99 1st Dep't Order.) The New York Court of Appeals denied leave to appeal on June 28, 1999 on the ground that the order was not appealable. (Ex. D: 6/28/99 N.Y. Ct. App. Order.)
References to exhibits are to the exhibits to the April 18, 2000 Affidavit of Assistant Attorney General Bruno V. Gioffre, Jr.
On July 12, 1999, Rodriguez moved for reargument and renewal of his motion in the First Department. (Ex. E: 7/12/99 Rodriguez Motion to Reargue Papers.) Rodriguez's motion sought leave to file a late notice of appeal because his assigned counsel failed to comply with his request to file a notice of appeal, Rodriguez was unaware of this failure until his motion for assignment of counsel and poor person relief was denied, and his understanding was that the court required trial counsel to comply with his request to file a timely notice of appeal. (Ex. E: Rodriguez 7/7/99 Aff. at 1-2.)
Rodriguez's affidavit stated:
That at the time of Petitioner's sentence Petitioner advised the sentencing court that he wished to appeal his conviction.
That at the time of Petitioner's sentence his attorney, Richard Landes, Esq., who defended him at his trial, said that Mr. Rodriguez wished to appeal his conviction.
. . .
That at all times after his sentencing Petitioner thought that his instructions to his attorney and to the sentencing court, in the presence of the District Attorney, pertaining to his request for an appeal to be filed in his behalf, had been complied with.
(Ex. E: Rodriguez 7/7/99 Aff. at 1.) As the State pointed out to the First Department, the sentencing transcript (quoted at page 2 above) reflected only Rodriguez's instruction to appeal, not any instructions to his trial counsel to file a notice of appeal on his behalf. (See Ex. F: State Aff. in Response ¶ 5.)
The First Department denied the motion without opinion or explanation on October 5, 1999. (Ex. G: 10/5/99 1st Dep't Order.) The New York Court of Appeals denied leave to appeal on December 30, 1999 on the ground that the order was not appealable. (Ex. H: 12/30/99 N.Y. Ct. App. Order.)
Rodriguez's Federal Habeas Petition
Rodriguez's current habeas corpus petition is dated January 10, 2000 and was received by the Court's pro se office on January 13, 2000. (Pet. at 2, 7.) Rodriguez's habeas petition alleges that: (1) his conviction was obtained by use of evidence gained through to an unconstitutional search and seizure (Pet. ¶ 12(A)), (2) he was denied effective assistance of counsel on appeal (Pet. ¶ 12(B)), (3) he was denied his right to appeal (Pet. ¶ 12(C)), and (4) he was denied his constitutional right to a speedy trial (Pet. ¶ 12(D)).
ANALYSIS RODRIGUEZ'S CURRENT HABEAS PETITION SHOULD BE DISMISSED PETITION SHOULD BE DISMISSED WITHOUT PREJUDICE BECAUSE HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS UNEXHAUSTED AND CAN STILL BE BROUGHT IN STATE COURT VIA A WRIT OF ERROR CORAM NOBIS A. Rodriguez's Ineffective Assistance Claim May Be Rodriguez's Ineffective Assistance Claim May Be Brought In State Court Via a Writ of Error Coram Nobis to the First DepartmentRodriguez did not exhaust his ineffective assistance of counsel claim in state court because it was never brought as a writ of error coram nobis in the First Department. Rodriguez's habeas petition alleges that his counsel was ineffective because of his failure to comply with his request to file a timely notice of appeal. (Pet. ¶ 12(B).) The New York Court of Appeals has stated that a defendant who fails to file timely notice of appeal because of his reasonable reliance on his assigned counsel to do so is entitled to relief by way of coram nobis review in the Appellate Division. E.g., People v. Bachert, 69 N.Y.2d 593, 598-99, 516 N.Y.S.2d 623, 626-27 (1987) (recognizing "that a motion for a writ of error coram nobis lies where it was asserted that a court-appointed lawyer failed to prosecute an appeal . . . [and] also conclude that the natural venue for coram nobis review of ineffective assistance of appellate counsel claims is in the appellate tribunal where the allegedly deficient representation occurred."); People v. Callaway, 24 N.Y.2d 127, 128, 299 N.Y.S.2d 154, 155 (1969) ("We recently held that a defendant who fails to file a timely notice of appeal because of his reasonable reliance on his assigned counsel to do so is entitled to relief by way of coram nobis."); see also, e.g., Jackson v. Moscicki, 99 Civ. 2427 9746, 2000 WL 511642 at *9 (S.D.N Y April 27, 2000) ("In New York, a claim of ineffective assistance of appellate counsel is properly raised in an application for a writ of error coram nobis to the Appellate Division that affirmed the judgment. Such an application may be made at any time. The petitioner has never availed himself of a state coram nobis proceeding. The state courts have therefore not had a fair opportunity to consider the claim of ineffective assistance of appellate counsel, which is therefore not exhausted.") (citations omitted). Rodriguez has never raised his ineffective assistance of counsel claim through a writ of error coram nobis to the First Department. Therefore, his claim of ineffective assistance of counsel is unexhausted in state court and, because there is no time limit for filing a writ of error coram nobis alleging ineffective assistance of counsel, is still available as a state remedy. See, e.g., Cowans v. Artuz, 99 Civ. 9730, 96 F. Supp.2d 298, 2000 WL 556881 at *5 (S.D.N.Y. May 5, 2000); Collins v. Herbert, No. 95-CV-267, 1997 WL 160164 at *3 (W.D.N.Y. Jan. 7, 1997).
The Court notes that Rodriguez's current habeas petition is potentially time-barred by the Anti terrorism and Effective Death Penalty Act's one-year statute of limitations, 28 U.S.C. § 2244 (d). The State, however, did not raise the statute of limitations issue in opposing Rodriguez's habeas petition. (See generally State Br.) Rodriguez, however, must be cognizant of the AEDPA limitation period in bringing a state coram nobis proceeding and thereafter bringing a new federal habeas petition. 28 U.S.C. § 2244(d)(1)(D) provides that the one-year period of limitation for habeas applications shall run from the date which the factual predicate of the claim presented could have been discovered through due diligence. Rodriguez stated in his reargument and renewal motion that he did not know that his counsel had failed to comply with his request to file a notice of appeal until his motion for assignment of counsel and poor person relief was denied on May 20, 1999. (Ex. E at 1-2.) The current habeas petition is dated January 10, 2000 and is therefore timely if the denial of Rodriguez's motion for assignment of counsel and poor person relief on May 20, 1999 is found to be the factual predicate of his habeas claim. See, e.g., Raynor v. Dufrain, 28 F. Supp.2d 896, 899 (S.D.N.Y. 1998) (dicta: the one-year period for filing a habeas petition arguably did not begin to run until petitioner discovered that his attorney failed to file a timely notice of appeal). Rodriguez would be well advised to file a writ of error coram nobis in the First Department before Judge Wood rules on this Report and Recommendation, to avoid having any more of the one-year period expire, and must promptly bring a new federal habeas petition (if necessary) after the completion of state coram nobis proceedings, in order to comply with the AEDPA's one-year statute of limitations, 28 U.S.C. § 2244 (d)(1)-(2), as computed from May 29, 1999 (as tolled by this petition and state coram nobis proceedings).
The Anti terrorism and Effective Death Penalty Act ("AEDPA") permits the Court to deny on the merits habeas petitions containing unexhausted claims. Thus, 28 U.S.C. § 2254 now states, in relevant part:
(b)(1) 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 unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State;
. . .
(2) 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.28 U.S.C. § 2254 (b)(1)-(2).
Section 2254(b) merely gives the Court discretion to deny unexhausted petitions on the merits; it does not require the Court to determine unexhausted claims. See 28 U.S.C. § 2254 (b)(2).
Section 2254(b)(2), however, "does not contain the standard for determining when a court should dismiss a petition on the merits instead of insisting on complete exhaustion." Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied, 522 U.S. 844, 118 S.Ct. 126 (1997); accord, e.g., Oleva v. Bintz, 00 Civ. 1398, 2000 WL 378034 at *3 (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.); Orraca v. Walker, 53 F. Supp.2d 605, 610 (S.D.N Y 1999) (McKenna, D.J. Peck, M.J.). Neither the Supreme Court nor the Second Circuit has established what standard a district court should use to determine when to dismiss a petition on the merits rather than requiring complete exhaustion.
See also, e.g., Morris v. Reynolds, 48 F. Supp.2d 379, 381 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 418, 420 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Rivera v. New York State Parole Div., 98 Civ. 7555, 1999 WL 246752 at *3 (S.D.N. Y. April 1, 1999) (Rakoff, D.J. Peck, M.J.); Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *3 n. 3 (S.D.N.Y. Oct. 7, 1998); Lum v. Penarosa, 2 F. Supp.2d 1291, 1292-93 (D. Haw. 1998); Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N.Y. 1998) (Preska, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *3 (S.D.N.Y. May 19, 1998) (Cote, D.J. Peck, M.J.); Gaylor v. Harrelson, 962 F. Supp. 1498, 1499 (N.D.Ga. April 3, 1997).
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, 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.
Duarte v. Hershberger, 947 F. Supp. at 150; accord, e.g., Oleva v. Bintz, 2000 WL 378034 at *2; Orraca v. Walker, 53 F. Supp.2d at 611. 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., Morris v. Reynolds, 48 F. Supp.2d at 384; Otero v. Stinson, 51 F. Supp.2d at 421; Rivera v. New York State Parole Div., 1999 WL 246752 at *3-4; Cowans v. Artuz, 14 F. Supp.2d at 506; Fennell v. Artuz, 14 F. Supp.2d 374, 379 (S.D.N.Y. 1998) (Preska, D.J. Peck, M.J.); Benitez v. Senkowski, 1998 WL 265245 at *3-4; 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. at 116; 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); Youngblood v. Greiner, 97 Civ. 3289, 1998 WL 720681 at *6 (S.D.N.Y. Oct. 13, 1998); Colon v. Johnson, 19 F. Supp.2d 112, 120, 122 (S.D.N.Y. 1998); Hogan v. Ward, 998 F. Supp. 290, 293 (W.D.N.Y. 1998); Edkin v. Travis, 969 F. Supp. 139, 142 n. 1 (W.D.N.Y. 1997); Rodriguez v. Miller, 96 Civ. 4723, 1997 WL 599388 at *3 (S.D.N.Y. Sept. 29, 1997); Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *3 n. 5 (S.D.N.Y. May 29, 1997); see also, e.g., Terrence v. Senkowski, 97 Civ. 3242, 1999 WL 301690 at *5 n. 4 (S.D.N Y May 12, 1999) (exercising discretion to dismiss unexhausted claims under § 2254(b) where "all of petitioner's claims lack merit," citing Youngblood's "patently frivolous" language); Cuadrado v. Stinson, 992 F. Supp. 685, 687 (S.D.N.Y. 1998) (it is perhaps appropriate for court to decide unexhausted claim on merits "where a petition was 'patently frivolous,' . . . but this is not such a case. The Court believes that it is still the best policy to 'allow the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'"); Brown v. Miller, 97 Civ. 1874, 1998 WL 91081 at *2 (S.D.N.Y. March 3, 1998) (Sotomayor, D.J.) (same).
Other courts, relying on the pre-AEDPA Supreme Court decision in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671 (1987), 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 also, e.g., Gassaway v. Cody, 132 F.3d 42 (table), 1997 WL 767560 at *2 n. 1 (10th Cir. Dec. 15, 1997) (the AEDPA codified Granberry's holding that the merits of an unexhausted claim can be reached where "'the interests of comity and federalism will be better served by addressing the merits forthwith'"), cert. denied, 525 U.S. 1076, 119 S.Ct. 813 (1999); Hoxsie v. Kerby, 108 F.3d at 1242-43; Lum v. Penarosa, 2 F. Supp. 2 d at 1293 ("This Court agrees with the Tenth Circuit's sound analysis, that when a habeas petition is clearly without merit, the interests of comity and federalism, which underpin the exhaustion doctrine, are better served if the federal court addresses the merits pursuant to § 2254(b)(2), rather than sending the petitioner back to the state courts on a futile quest to exhaust ultimately meritless claims."); Gaylor v. Harrelson, 962 F. Supp. at 1500 ("the test is whether it is 'perfectly clear' that the petitioner has failed to state 'even a colorable claim.' . . . [This] requires only a cursory examination of the petitioner's claims. If this brief examination arouses the slightest suspicion that the claims have merit, dismissal without prejudice is appropriate to allow the State court an opportunity to consider the claims."); Delaney v. Commissioner of Dept. of Mental Health, No. C.A. 92-12025, 92-12026, 1998 WL 113852 at *5 (D.Mass. March 5, 1998) ("under both the old habeas statute, see Granberry, . . . and the new habeas statute, 28 U.S.C. § 2254(b)(2), a court may deny an unexhausted petition on the merits if it clearly does not raise a colorable federal claim"); United States ex rel. Walton v. Gilmore, No. 96 C 2375, 1997 WL 51703 at *5 (N.D.Ill. Feb. 4, 1997) (dismissal without prejudice granted where "nothing on the face of the petition suggests that [petitioner's] claims are frivolous").
The Court here need not decide whether the "patently frivolous" or some other standard is 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 Rodriguez's ineffective assistance claim has not been addressed by the State courts and where the parties will need to make a record as to that claim, and where Rodriguez's remaining claims also appear to be unexhausted, the Court believes it appropriate to decline to exercise its discretion to decide Rodriguez'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 a mixed petition 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., Oleva v. Bintz, 2000 WL 378034; 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 Rodriguez 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."). His ineffective assistance of counsel claim, however, may have merit, if he can prove that he instructed counsel to file a notice of appeal, counsel informed Rodriguez that he would do so and counsel failed to file a notice of appeal. See Restropo v. Kelly, 178 F.3d 634 (2d Cir. 1999). As noted above (fn. 2), Rodriguez may not be able to prove the necessary factual predicate for his ineffective assistance claim. He should, however, have the opportunity to do so, via state court coram nobis proceedings.
Conclusion
For the reasons set forth above, the Court should dismiss Rodriguez's federal habeas petition without prejudice, because he has failed to properly exhaust his ineffective assistance of counsel claim in state court. The Court warns Rodriguez that when he returns to State court to exhaust by filing a writ of error coram nobis in the First Department, 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 354, 360 (2d Cir. 2000); 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.). Rodriguez would be well advised, therefore, to file a writ of error coram nobis in State court raising his ineffective assistance claim (and his other claims to the extent possible under state law) before Judge Wood rules on this Report and Recommendation. (See also fn. 3 above.)
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 Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. 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).