Opinion
9:00-CV-80 (NAM/GLS)
October 3, 2001
FOR THE PETITIONER: RANDY CAMPNEY, Petitioner, Pro Se, Greene Correctional Facility, Coxsackie, New York.
FOR THE RESPONDENT: HON. ELIOT SPITZER, New York State Attorney General, OF COUNSEL: SENTA B. SIUDA, Asst. Attorney General, Syracuse Regional Office, Syracuse, New York.
REPORT AND RECOMMENDATION
I. Introduction
Pending is a habeas corpus petition filed by Randy Campney ("Campney") pursuant to 28 U.S.C. § 2254. He complains of a 1997 Warren County Court judgment sentencing him to 3 1/2 to 7 years after his burglary conviction. The judgment was affirmed, one justice dissenting, by the Appellate Division, Third Department. People v. Campney, 256 A.D.2d 1058, 684 N.Y.S.2d 642 (3d Dept 1998). The Court of Appeals, one judge dissenting, also affirmed. People v. Campney, 94 N.Y.2d 307, 704 N.Y.S.2d 916 (1999).
This matter has been referred for Report-Recommendation by the Honorable Norman A. Mordue pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
Campney contends that his trial was tainted by the admission of evidence that he made a statement and adopted his brother's confession. In that regard, he argues: his statement was obtained in violation of his Miranda rights and his Sixth Amendment right to counsel; the prosecution impermissibly impeached its own witness; and, absent the confession, the trial evidence was insufficient to convict him.
Campney actually asserts a fifth ground which is difficult to decipher, but in essence, complains about circumstantial evidence. Regardless, that issue is resolved in the context of his other claims.
In summary, the court recommends that Campney's petition be denied for the following reasons. As to his Fifth Amendment Miranda and Sixth Amendment right to counsel claims: substantively there were no constitutional violations; and, pursuant to 28 U.S.C. § 2254(d), there was no unreasonable application of clearly established Supreme Court law by New York's courts or an unreasonable determination of the facts underlying those claims. As to his impeachment and weight of the evidence claims: substantively, the impeachment evidence was proper and the weight of the evidence was sufficient to support the verdict; the impeachment claim raises a state evidentiary issue noncognizable on habeas review; Campney failed to exhaust both claims; and, as a result of his failure to exhaust, he is in procedural default, and no exception applies.
II. Background and Procedural History
Regarding the statement and adopted confession, the facts are succinctly summarized in the state appellate opinions. On September 13, 1996, Campney and his brother, Burton, were arrested for a store burglary.
The court has reviewed the underlying record, including the suppression hearing and trial transcripts. Furthermore, the parties essentially concur with the facts although Campney seriously disagrees with the prior legal conclusions drawn from those facts.
Before he had been formally charged or arraigned but while in custody, Campney invoked his Miranda rights, requested counsel and refused to submit to police interrogation. However, Burton confessed, admitting that he and Campney had burglarized the store. Burton declined to sign the confession unless he was first permitted to talk to Campney. The police brought Burton and his written confession to Campney's holding area, and the brothers privately conferred for 10 to 15 minutes. The police then returned, saw Campney holding the confession and asked Burton whether he was ready to sign. Burton then asked Campney what he should do. Responding to Burton's question, Campney stated, "You might as well sign it, you already told them all about what happened." Burton's confession fully implicated both brothers in the burglary. Before trial, the court conducted a suppression hearing concerning the admissibility of Campney's statement, and an evidentiary hearing concerning the admissibility of Burton's confession as an adoptive admission. When Campney made the statement to his brother, he was in custody and had requested counsel. Ex. 7 at 208, 229. The court declined to suppress Campney's statement, finding that the ". . . statement was a spontaneous response to a question posed by the defendant's brother, as opposed to a question posed by law enforcement personnel. Moreover, there is no basis to conclude that law enforcement personnel had attempted by `subtle maneuvering or otherwise' to overhear the communication at issue." Ex. 11 at 2-3 (internal citation omitted).
See Resp't's Answer (Dkt. No. 11) and accompanying Exhibits 6-7 (hereinafter, "Ex.").
As to the evidentiary issue, the court found that the prosecution had established a sufficient foundation which, if believed by the jury, would warrant a finding that Campney had adopted Burton's confession. Therefore, the court ruled that it would instruct the jury to resolve the predicate factual issue as to whether Campney actually made the statement attributable to him and the corollary, that in doing so, he adopted Burton's confession. Ex. 7 at 61-62. During the trial, that issue was squarely presented to the jury by counsel and the court. See Ex. 8 at 149-156; 222-252; 318-321; 328-331; 381-403.
During the trial, Campney objected to the admission of his brother's statement, inter alia, on the grounds of hearsay absent a showing that the declarant, Burton, was unavailable for trial. Id. at 210. Consistent with it's prior ruling, the court admitted Burton's confession during the prosecution's direct case and before Burton testified, subject to the requisite factual findings by the jury as a prerequisite to considering the evidence at all. Id. at 211-15.
Before trial, the prosecutor informed the court and defense counsel that he would not call Burton as a witness because of his belief that Burton intended to recant his confession and exonerate his brother, thus committing perjury, at least in the prosecutor's opinion. Campney responded that if the prosecution did not call Burton, he would. Ex. 8 at 2-5, 152-54. During opening statement, a dispute arose when the defense suggested that the prosecution's proof regarding Campney's statement was suspect in light of its decision not to call Burton. The prosecution then told the defense that if it intended to pursue that argument, it would call Burton and seek to treat him as a hostile witness if he recanted. Id. at 152-54.
During the trial, the prosecutor advised that Burton had recently stated that he intended to tell the truth. Accordingly, and with Campney's permission, the prosecution called Burton. Ex. 8 at 253. Burton then testified and recanted, telling the jury that he alone had committed the burglary. Id. at 257-58. The court declared Burton a hostile witness, and the prosecutor cross-examined him, using his prior confession. Pursuant to § 60.35 of New York's Criminal Procedure Law, the court permitted the cross. Id. at 264-78. The court then provided the jury with a limiting instruction, advising that they could only use the prior inconsistent statement to assess the credibility of Burton and could not use the statement as affirmative evidence of Campney's guilt. Id. at 292. The court repeated the instruction during its charge. Id. at 411-12. Significantly, the use of Burton's confession during cross-examination is meaningless in the current habeas context since that confession had previously been admitted as an adoptive admission.
New York's evidentiary rules are generally governed by the common law, but § 60.35 reflects a legislative mandate consistent with the trial court's instruction. While the federal rules are similar, there are distinctions. Thus, a federal witness may be impeached by a prior inconsistent statement regardless of who called the witness. See Fed.R.Evid. 607. Furthermore, and subject to certain foundational requirements, the prior inconsistent statement may be used as affirmative evidence. See Fed.R.Evid. 801(d)(1)(A); United States v. Rivera, 513 F.2d 519 (2d Cir. 1975).
In its final charge, the court fully explained the significance of Campney's statement and the adoptive admission, instructing that the jury had to find beyond a reasonable doubt that Campney made the statement attributed to him and, in doing so, adopted Burton's confession. In fact, the court directed the jury to return a verdict of not guilty if it failed to make those findings. Id. at 414-17; 454; 458-61.
On appeal to the Third Department, Campney raised three issues. He first argued that the trial court's evidentiary ruling admitting the adopted confession was erroneous because of an insufficient foundation not only as specifically necessary to adoptive admissions, but also as a necessary predicate to the admissibility of hearsay (availability of the declarant and reliability of the hearsay). Ex. 19 at 8-12. Secondly, he argued that the prosecution violated the evidentiary proscription of § 60.35 by using the confession as evidence-in-chief. Id. at 13-15. Finally, he argued that the prosecution impeached its own witness in bad faith, again relying on New York's evidentiary rules. Id. at 16-19. At no time did Campney raise the federal constitutional claims currently asserted in his petition nor did he assert a federal basis for his evidentiary claims. In that regard, the appellate decision focused exclusively on New York's evidentiary foundation as a predicate to the admissibility of an adopted confession, and discarded Campney's remaining claims as having been reviewed and found to be without merit. Campney, 256 A.D.2d at 1060, 684 N.Y.S.2d at 643.
In the Court of Appeals, Campney reargued the same evidentiary issues and, for the first time, raised his current argument that his admission and the admission of Burton's confession violated his constitutional rights. Ex. 25, Campney Jurisdictional Statement at 5; see also, Ex. 28, Campney Brf. at 14-15. His argument was essentially two-fold: first, he asserted that his statement was made in an interrogation environment, and therefore violated his Miranda rights; secondly, he argued that his right to counsel had attached under the Sixth Amendment.
Campney asserted that the issue had been raised and preserved below, citing his Appendix at 6-9. See Ex. 25 at 5. His reference, however, was to the trial court's ruling. He never raised the issue in the Appellate Division. Nonetheless, the Court of Appeals was free to consider his arguments. See N.Y. Crim. Proc. Law § 470.35(2)(b) (McKinney 1994).
In its decision affirming Campney's conviction, the court principally focused on the evidentiary foundation necessary to the admission of the adopted confession. However, it also addressed Campney's constitutional arguments. Citing its own decisions and Rhode Island v. Innis, 446 U.S. 291, 300-301, the court adopted the trial court finding that Campney's statement was not the product of an interrogation environment nor the result of express questioning or its functional equivalent. Campney, 94 N Y2d at 314.
III. Discussion
A. The Miranda and Sixth Amendment Right to Counsel Claims
There was no violation of Campney's Fifth Amendment Miranda rights nor his Sixth Amendment right to counsel. Regardless, there was no unreasonable application of clearly established Supreme Court law by New York's courts nor an unreasonable determination of the facts underlying those claims, and Campney's constitutional claims should be denied.
It is axiomatic that habeas relief is available to a state prisoner only if he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also, Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). The Fifth Amendment requires that the police cease all interrogation once a suspect, in custody, unequivocally invokes his right to have counsel present before further questioning. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards did note, however, that nothing in the Fifth Amendment would prohibit the police from merely listening to volunteered statements made prior to access to counsel, and then using those statements at trial. Id. at 485-86, 101 S.Ct. at 1885. Naturally, the essential question is whether the statement was volunteered or the product of police interrogation.
In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297, the Supreme Court addressed the meaning of interrogation, holding that it included express questioning or its functional equivalent. Id. at 300-01, 100 S.Ct. at 1689. Thus, interrogation includes:
. . . [A]ny words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Id. at 301-02, 100 S.Ct. at 1689-90 (footnotes omitted) (emphasis in the original). This Circuit has stated that the questions "must have been both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the `will' of the examiner." United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987) (internal quotation omitted).
Here, of course, Campney's brother asked him a question, not the police. Furthermore, the question was prompted by the brother's personal concerns and had nothing to do with the desire of the police to interrogate Campney. The police can hardly be responsible for the unforseen consequence resulting from their decision to allow the brothers to speak. In fact, this case involves conduct substantially similar to that which the Supreme Court itself has found to be non-interrogation. See Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) (taped conversation between husband and wife); also cf. United States v. Romero, 897 F.2d 47 (2d Cir. 1990) (statement made to a nurse); Stanley v. Wainwright, 604 F.2d 370 (5th Cir. 1979) (clandestine taping of defendants).
Although the suppression hearing testimony clearly supports the factual conclusion that Campney's statement to his brother was not the by-product of express or subtle police interrogation, that state court factual determination is, in any event, presumed correct unless Campney rebuts that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(d)(2), (e)(1); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). Naturally, 5th Amendment jurisprudence imposes a mixed obligation, and the court must review legal conclusions drawn from those facts. See Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Nonetheless, the trial court resolved issues of credibility against Campney, the appellate court adopted those findings and Campney has offered nothing to rebut the presumption. See Townsend v. Swain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 756 n. 6, 9 L.Ed.2d 770 (1963) (on habeas review, "`issues of fact'" means "basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators'").
Campney denied making any statement to his brother whatsoever. The trial court resolved that issue of credibility, finding that Campney did speak, making the statement attributed to him.
As to the bald assertion that his Sixth Amendment right to counsel was violated, Campney has asserted no factual basis to support that conclusion. Federally, the right to counsel attaches only when adversarial judicial proceedings are initiated whether by formal charge, preliminary hearing, indictment, information or arraignment (so-called "critical stages"). Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407-08, 89 L.Ed.2d 631 (1986); Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972); see also, United States v. Abdi, 142 F.3d 566, 569 (2d Cir. 1998). Here, Campney had been arrested and was in police custody, but no formal charge had been filed nor had any other critical stage been reached. Therefore, there was no violation of his Sixth Amendment right to counsel.
Furthermore, the determination of whether a Fifth Amendment Miranda or Sixth Amendment right to counsel violation occurred requires the court to consider the totality of the circumstances. See Tankleff v. Senkowski, 135 F.3d 235, 244-45 (2d Cir. 1998); see also Green v. Scully, 850 F.2d 894, 901 (2d Cir. 1988). Therefore, any argument that such decisions cannot be made on the basis of circumstantial evidence has nonmerit. See Fn. 2.
Although the foregoing analysis demonstrates that the admission of Campney's statement did not violate the Fifth or Sixth Amendment, 28 U.S.C. § 2254(d) mandates the denial of his claims in any event. For the reasons already stated, the state court decision was not contrary to, nor did it involve an unreasonable application of, clearly established Fifth or Sixth Amendment law nor did the state court judgment rest on an unreasonable determination of the facts in light of the evidence presented. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., writing for the majority as to Point II); see also, Cruz v. Miller, 255 F.3d 77 (2d Cir. 2001); Sellman v. Kulman, 261 F.3d 303 (2d Cir. 2001).
Accordingly, Campney's Fifth and Sixth Amendment claims have no substantive merit, the state court decisions reasonably applied the facts and federal constitutional law, and his statement was therefore properly admitted at trial. For these reasons, his first two claims should be denied.
B. Improper Impeachment and the Weight of the Evidence
Having decided that Campney's statement was constitutionally admissible, his remaining claims are substantively without merit, are non-cognizable, and, are unexhausted and, therefore, procedurally defaulted.
1. Substantive Merits
Campney asserts that the prosecution improperly impeached his brother, thus introducing the confession through the back door. That argument might be persuasive if the confession had not already been introduced through the front door. His complaint is less the evidentiary basis for impeachment than the fact that the jury heard the confession at all. The confession was in evidence at the time his brother was impeached and the admission of that evidence was constitutionally permissible. Furthermore, the impeachment was permissible under New York's law and even if a federal issue existed, the impeachment was proper under federal law. See Fn. 5. This is especially true since a limiting instruction was given, and even more true since the trial court directed the jury to return a verdict of not guilty unless it first found that the direct evidence of the statement and adopted admission had been proved beyond a reasonable doubt.
Since the adopted confession was constitutionally admissible, Campney's weight of the evidence argument is equally without merit. A state verdict must be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992); Green v. Abrams, 984 F.2d 41, 44 (2d Cir. 1993). In evaluating the sufficiency of the evidence, "[g]uilt beyond a reasonable doubt may be established entirely by circumstantial evidence, and this evidence must not be reviewed piecemeal, but rather as a whole." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (internal citations omitted). The habeas court does not weigh the evidence nor determine the credibility of witnesses. Id. at 35 (citing United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993). It is up to the jury to determine the credibility of a witness, and the court must defer to the jury's decision to believe or disbelieve a witnesses' testimony. See United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995); see also, Williams v. McCoy, 7 F. Supp.2d 214, 221 (E.D.N.Y. 1998). However, the court must decide "whether the record is `so totally devoid of evidentiary support that a due process issue is raised.'" Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (quoting Mapp v. Warden, N.Y. State Correctional Inst. for Women, 531 F.2d 1167, 1173 n. 8 (2d Cir. 1976).
Ultimately, a petitioner is "entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324, 99 S.Ct. at 2791. This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324, n. 16, 99 S.Ct. at 2792, n. 16. Here, the issue was not whether the evidence was sufficient to prove burglary. The fact that the store was burglarized was conceded at trial. The issue was whether Campney participated in that burglary. Once Burton's confession was found to have been adopted by Campney, a finding implicit in the jury's verdict and especially in light of the trial court's instructions, the evidence overwhelmingly supports the verdict. This conclusion inescapably flows from Burton's confession and Campney's adoption of that confession, the content of which detailed the participation of both brothers in the burglary.
2. Non-Cognizable Claims
"It is not the province of a federal habeas court to re-examine state court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Campney's impeachment claim relies exclusively on a state evidentiary argument, and habeas relief is available only for those in custody in violation of the laws or Constitution of the United States. 28 U.S.C. § 2254(a); Knapp v. Leonardo, 46 F.3d 70, 78 (2d Cir. 1995).
Parenthetically, he raised this state issue with the highest state court, and it ruled against him. See Campney, 94 N.Y.2d at 314, 704 N.Y.S.2d 916 ("Defendant's other contentions have been considered and do not merit explication").
Of course, an evidentiary error that is sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed without it may rise to a deprivation of due process under the Fourteenth Amendment. Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992). Campney has not asserted a violation of due process nor did he present that constitutional claim to the state courts, and he cannot meet his burden of showing that the impeachment ruling "had a substantial and injurious effect or influence in determining the jury's verdict" in any event. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (internal quotation omitted); see also, Wray v. Johnson, 202 F.3d 515, 525 (2d Cir. 2000). If the adopted confession had been used only during impeachment, Campney's argument would be persuasive since there would have been no direct evidence that he participated in the burglary. However, it had already been admitted as evidence-in-chief, there was no fundamental deprivation of due process by permitting impeachment consistent with state evidentiary law, and Campney's argument raises a non-cognizable claim.
3. Failure to Exhaust and Procedural Default
Lastly and alternatively, Campney's impeachment and weight of the evidence claims should be denied because he failed to exhaust them and is in procedural default.
28 U.S.C. § 2254 codifies the exhaustion requirement, stating:
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 . . .28 U.S.C. § 2254(b)(1)(A). Campney's appellate submissions and the subsequent opinions clearly reveal that he failed to present the substance of his federal complaints to the state courts. Normally, the failure to exhaust would preclude habeas review. Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000) (citing Washington v. James, 996 F.2d 1442, 1446 (2d Cir. 1993)). So too, Campney's mixed petition which contains both exhausted and unexhausted claims is subject to dismissal. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). However, Campney has no remaining state remedies since only one application for leave to appeal to the Court of Appeals is permitted and since a post-judgment motion is unavailable when an issue could have been raised on direct appeal but was not. See N.Y. Rules of Court, Court of Appeals, § 500.10(a) (McKinney 1999); N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney 1994). Therefore, he has failed to exhaust and because he can no longer present his claims to the state, he has procedurally defaulted. Spence, 219 F.3d at 170.
Procedural default does not preclude federal jurisdiction, but does adhere to principals of comity and finality. Therefore, procedural default precludes federal review unless Campney can show either cause for the default and actual prejudice, or demonstrate that the failure to consider a federal claim will result in a "fundamental miscarriage of justice." Spence, 219 F.3d at 170 (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1990)). In turn, a fundamental miscarriage of justice is an unjust incarceration or the probable conviction of one who is actually innocent. Id. at 170 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)). Campney cannot meet any aspect of the test that would permit an excuse for his procedural default. He has not addressed his default whatsoever much less demonstrated that as to these two claims, he has a federal complaint. Furthermore, there is no unjust incarceration or the conviction of one actually innocent since the adopted confession fully demonstrates that he and his brother burglarized the store. Therefore, and since the state has raised the nonexhaustion defense, the petition must be denied. See Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987).
IV. Conclusion
Accordingly, it is
RECOMMENDED, that Campney's petition for a writ of habeas corpus (Dkt. No. 1) be DENIED for the following reasons:
As to his Fifth Amendment Miranda and Sixth Amendment Right to Counsel claims:
1. Pursuant to 28 U.S.C. § 2254(d), there was no unreasonable application of clearly established Supreme Court law by New York's courts or an unreasonable determination of the facts underlying those claims; and,
2. Substantively, there was no violation of Campney's federal constitutional rights;
As to his improper impeachment and weight of the evidence claims:
1. Substantively, the impeachment evidence was proper and the weight of the evidence supported the verdict;
2. The impeachment claim asserts a state evidentiary issue noncognizable on habeas review;
3. Campney failed to exhaust both claims; and,
4. As a result of his failure to exhaust, he is in procedural default and no exception applies.
IT IS FURTHER ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).