Opinion
04 Civ. 3632 (JSR) (KNF), 01 Cr. 195 (JSR).
February 28, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Fousseyini Doumbia ("Doumbia"), proceeding pro se, has made an application, pursuant to 28 U.S.C. § 2255, for his sentence to be vacated, set aside or corrected. Doumbia contends he received ineffective assistance from his trial counsel because: (1) his trial counsel failed to object when, at his sentencing proceeding, provisions of the United States Sentencing Commission Guidelines Manual ("sentencing guidelines") were applied erroneously by the court; (2) his trial counsel's failure to object, as noted above, resulted in a violation of the Ex Post Facto Clause of the Constitution; (3) his trial counsel labored under a conflict of interest; and (4) his trial counsel advised him, inappropriately, to enter a plea of guilty. Doumbia also alleges that his appellate counsel rendered ineffective assistance to him when he failed to argue in his appellate brief that the petitioner's trial counsel erred in failing to object to the misapplication of the sentencing guidelines that occurred at his sentencing proceeding.
The respondent opposes the petitioner's application. He maintains that, although Doumbia has presented his claims as allegations of ineffective assistance of counsel, they are not that; rather, they are simply claims that could have been raised by the petitioner, but were not, when he appealed his conviction. Furthermore, according to the respondent, inasmuch as Doumbia failed to raise these claims in his direct appeal from the judgment of conviction, he is barred from obtaining relief through the instant petition, unless he can show cause for his failure and prejudice if the claims are not entertained by the court, or that he is actually innocent of the crimes for which he was convicted. Alternatively, the respondent contends: (a) Doumbia received effective assistance from both his trial and appellate counsel; (b) no Ex Post Facto Clause violation occurred because, had the sentencing guidelines that were in effect on the sentencing date been used, Doumbia would have been exposed to a term of incarceration, the range of which was greater than the range of the term of incarceration to which he was exposed under the outdated sentencing guidelines; (c) Doumbia's trial counsel was not hampered by a conflict of interest; and (d) Doumbia's plea of guilty was made knowingly and voluntarily. Doumbia's application is addressed below.
II. BACKGROUND
In 2000, Doumbia conspired with others to commit bank fraud by using identity data belonging to Mark Segalman ("Segalman") and, without his knowledge or consent, ordering checks to be printed by Segalman's bank bearing an address with which Segalman was not associated. In addition, Doumbia obtained an American Express credit card fraudulently, by using Segalman's identity data. By using the checks and credit card, Doumbia and his co-conspirators attempted to obtain money and things of value totaling approximately $405,822.
On February 9, 2001, Doumbia was arrested in connection with the above-noted scheme. At the time of his arrest, Doumbia was free on bail awaiting a sentencing proceeding in the United States District Court for the District of Nevada, where he had pleaded guilty for conspiring to utter counterfeit checks. Doumbia was later sentenced to 18-months imprisonment and three years of supervised release by the district court in Nevada. Doumbia was indicted by a grand jury in this judicial district for, inter alia: (1) conspiracy to commit bank fraud ( 18 U.S.C. § 371); and (2) bank fraud ( 18 U.S.C. § 1344).
Doumbia elected to plead guilty, and a pleading proceeding was scheduled for May 31, 2001. Prior thereto, Doumbia sent the court a letter dated May 28, 2001. In that letter, Doumbia requested that different counsel be appointed to represent him because he believed that the attorney who had been assigned to assist him had not represented his interests adequately. At a proceeding conducted on May 31, 2001, that was closed to the prosecutor, the court discussed the letter with Doumbia and his counsel. Doumbia expressed dissatisfaction with his counsel's inability to have Doumbia's Nevada case transferred to this judicial district for sentencing. Doumbia had hoped that such a transfer would result in the imposition of concurrent sentences. After hearing from Doumbia and his counsel, the court declined to appoint different counsel for Doumbia. The court explained that Doumbia's counsel had done everything that a good attorney should do. Moreover, the court found there was no communication problem between counsel and Doumbia. Thereafter, the pleading proceeding was held and Doumbia pleaded guilty for conspiring to, and committing, bank fraud.
Doumbia's sentencing proceeding was scheduled for December 21, 2001. Prior to that date, a presentence investigation report was prepared by the United States Probation Department. The author of the report relied on the 2000 edition of the sentencing guidelines in preparing the report. Based on that edition of the sentencing guidelines, it was determined that Doumbia's total offense level was 23 and that his criminal history category was II. This exposed Doumbia to a term of imprisonment within a range of 51-63 months. The Probation Department recommended the court impose a sentence of 56-months imprisonment on each of the two counts to which Doumbia had pleaded guilty. It also recommended the sentences run concurrently with each other and that three years of supervised release be imposed, for both counts, which should also run concurrently with each other.
At the time of Doumbia's sentencing proceeding, the 2001 edition of the sentencing guidelines was in effect. However, the court used the 2000 edition of the sentencing guidelines to fashion Doumbia's sentence. The court determined that Doumbia's total offense level was 25: (a) six points for the base offense level; (b) nine points for the specific offense characteristics, a loss of more than $350,000 but less than $500,000; (c) two points for more than minimal planning of the scheme; (d) two points for the unauthorized transfer of the victim's identification; (e) three points for obstruction of justice; (f) four points for Doumbia's leadership or organizing role; (g) two-point upward departure because the offense caused substantial harm to the victim; and (h) a three-point decrease for Doumbia's acceptance of responsibility. Doumbia objected to the four points associated with being an organizer or leader and the two-point upward departure. However, the court found, by a preponderance of the evidence, that Doumbia was the organizer or leader of the conspiracy and that an upward departure, based on substantial harm to the victim, was warranted.
Doumbia was sentenced to: (i) 70-months imprisonment on each of the two counts of the indictment to which he pleaded guilty. The court directed that those sentences run concurrently with each other, and consecutively to the sentence Doumbia was then serving based on his Nevada conviction; (ii) three years of supervised release on each of the two counts, which periods of supervised release were to run concurrently with each other; (iii) pay restitution in the amount of $33,900; and (iv) pay a special assessment of $200.
Doumbia appealed from the judgment of conviction to the Second Circuit Court of Appeals, claiming that: (1) the trial court's four-level enhancement, predicated on its finding that he was a leader or organizer of the conspiracy, was improper, since Doumbia did not have a key role in the criminal venture and was merely following the instructions of a person known only as "Mr. Baffo," who was not charged in connection with the criminal case; and (2) Jones v. U.S., 526 U.S. 227, 119 S. Ct. 1215 (1999) andApprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) required the prosecution to prove beyond a reasonable doubt every element of the charged crimes, including any factual finding that informs the range of sentence to be imposed under the sentencing guidelines, such as the trial court's finding that he was a leader or organizer of the conspiracy. However, this was not done in his case.
The Second Circuit Court of Appeals affirmed the judgment of conviction. It found that: (a) the trial court acted properly when it adopted the factual findings in the pre-sentence report, which provided evidence supporting the sentence enhancement; and (b) Apprendi did not apply to the instant case because the sentence imposed on Doumbia did not exceed the statutory maximum. The Second Circuit also found that the trial court applied a preponderance of the evidence standard properly. See U.S. v. Doumbia, 64 Fed. Appx. 297, 298 (2d Cir. 2003). The instant application followed.
III. DISCUSSION
A sentenced prisoner in federal custody may make a motion, in the court that imposed the sentence, "to vacate, set aside or correct the sentence" if the sentence was "imposed in violation of the Constitution or laws of the United States, or [] the court was without jurisdiction to impose such sentence, or [] the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. "A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). Therefore, a claim that could have been raised on direct appeal from a judgment of conviction, but was not, is procedurally forfeited and cannot garner the prisoner relief through a § 2255 motion, unless the prisoner establishes: (a) "cause for failure to raise the issue and prejudice resulting therefrom;" or (2) "actual innocence." Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (citations omitted). However, "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690, 1696 (2003).
The Sixth Amendment to the Constitution provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence." U.S. Const. Amend. VI. "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14 (1970). To prevail on an ineffective assistance of counsel claim, the moving party must show that: (1) his "counsel's representation fell below an objective standard of reasonableness;" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984). "Judicial scrutiny of counsel's performance must be highly differential." Id. at 689, 104 S. Ct. at 2065. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and the moving party "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound [] strategy.'" Id. "Failure to make a meritless argument does not amount to ineffective assistance." United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).
Doumbia contends his trial counsel rendered ineffective assistance to him because counsel failed to challenge the court's use of an outdated edition of the sentencing guidelines manual when it determined the sentence to impose on him. Doumbia alleges further that his trial counsel failed to protest the court's application to him of a provision of the outdated sentencing guidelines manual, which had been supplanted in the more current edition of the manual by Section 2 B1.1., which took effect on November 1, 2001. In addition, Doumbia contends his appellate counsel rendered ineffective assistance to him because he failed to request that the Second Circuit review, as error, the trial court's use of the outdated edition of the sentencing guidelines manual, when it determined the sentence to impose on him, see 18 U.S.C. § 3742(f)(1) and, concomitantly, his trial counsel's failure to register an appropriate objection to this at the sentencing proceeding. Moreover, in his reply to the respondent's response to the instant motion, Doumbia asserts that his sentence should be vacated because the penalty enhancement, based on leadership or organizer role, was effected based on facts found by the court, by a preponderance of the evidence, in contravention of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
See Amendment 617, United States Sentencing Commission Guidelines Manual, Supplement to Appendix C, November 1, 2002.
The respondent maintains Doumbia's claims, that the wrong sentencing guidelines provision was applied to him and that the court erred in calculating his sentence, are procedurally barred from review through this motion because Doumbia failed to raise these claims on direct appeal, despite having ample opportunity to do so. According to the respondent, "cloaking these arguments as based on the ineffective assistance rendered both at his sentencing and on direct appeal" is unavailing. However, the respondent fails to make citation to any authority that supports barring Doumbia from making the instant motion because his claims are "cloaked" or premised upon ineffective assistance of counsel. Therefore, the Court finds that Doumbia's ineffective assistance of counsel claims are not procedurally forfeited and may be reviewed on the merits.
Erroneous Sentencing Guidelines
At the outset, it must be noted that, in this circuit, neitherBlakely, nor Booker apply retroactively to cases on collateral review where the defendant's conviction became final prior to the dates on which these decisions were issued. See Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005). Therefore, Doumbia's argument that his sentence should be vacated because it violates eitherBlakely or Booker is without merit.
Doumbia contends his trial counsel rendered ineffective assistance to him by failing to challenge the court's application of the 2000 edition of the sentencing guidelines because, according to Doumbia, under the 2001 edition of the sentencing guidelines, in effect at the time of his sentencing, his total offense level would have been 14, not 25, as the court determined. The respondent contends the failure of Doumbia's trial and appellate counsel to register any protests was reasonable, due to the lack of evidentiary and legal support for Doumbia's position.
Doumbia has failed to present any evidence to the Court upon which it could rely in finding that he has sustained his heavy burden of rebutting the presumption that counsel's conduct was objectively reasonable, and that counsel's decision not to challenge the application of the 2000 edition of the sentencing guidelines was other than a strategic decision. Two provisions of the 2000 edition of the sentencing guidelines, upon which the court relied in determining the sentence to impose on Doumbia, Section 2 F1.1. (B)(2)(A) and the applicable Commentary, Application Note 16, Subsection (b)(5)(C)(ii), were deleted from the 2001 edition of the sentencing guidelines. The pertinent deleted text advised that a two-level increase in the total offense level could be made if the offense of conviction involved more than minimal planning, and that a two-level upward departure could be made if the offense of conviction caused substantial harm to the victim's reputation or credit record or if the victim suffered substantial inconvenience repairing his or her reputation or damaged credit record.
The Court has reviewed the 2000 and 2001 editions of the sentencing guidelines. That review revealed that, had Doumbia's total offense level been calculated based on the 2001 edition of the sentencing guidelines and, thus, had been reduced by four levels owing to the pertinent deleted provisions of the sentencing guidelines, his total offense level would have been 26, because of a level increase, from nine to fourteen, made in the specific offense characteristics category for the amount of loss involved, as determined by the court. This total offense level, coupled with Doumbia's criminal history category, II, exposed him to a term of imprisonment within the range of 70 and 87 months. The sentence to which Doumbia was exposed, under the 2000 edition of the sentencing guidelines, based on the court's total offense level calculation of 25, was a term of imprisonment within the range of 63-78 months. In his submission to the Court, Doumbia prepared an analysis of the 2001 sentencing guidelines. In that analysis, Doumbia's calculation of the total offense level is premised on unsubstantiated facts and arbitrary determinations he has reached. For example, Doumbia alleges the specific offense characteristics in the 2001 edition of the sentencing guidelines provide for a level enhancement based solely on the actual monetary loss suffered by a crime victim. He asserts that, in his case, the actual loss amount was $12,000, which allowed for an offense level increase of four. Doumbia's assertion is erroneous. The 2001 edition of the sentencing guidelines explains that "loss is the greater of actual loss or intended loss." U.S.S.G. § 2 B1.1, Commentary, Application Notes 2(A). The court determined that the total loss was $405,822. Under the 2000 edition of the sentencing guidelines, this loss amount allowed for an offense level upward adjustment of nine levels. Under the 2001 edition of the sentencing guidelines, this loss amount would qualify for an offense level increase of 14. It follows that, had Doumbia been sentenced under the 2001 sentencing guidelines, the range of sentence to which he would have been exposed would have been higher than it was under the 2000 sentencing guidelines, because the sentence range would have been based on a higher total offense level. The lowest sentence Doumbia would have been eligible to receive under the 2001 edition of the sentencing guidelines is 70 months. That is the sentence he received from the court, notwithstanding the fact that the court relied on the 2000 edition of the sentencing guideline when it determined the sentence to impose on the petitioner.
The Court finds that, in the circumstance of the instant case, Doumbia's trial counsel acted reasonably when he did not challenge the court's use of the 2000 edition of the sentencing guidelines, since the court's application of the 2001 edition of the sentencing guidelines would have increased the period of incarceration to which Doumbia would have been exposed. Consequently, appellate counsel's decision not to challenge, on direct appeal, the trial court's application of the 2000 edition of the sentencing guidelines was well within the range of professionally reasonable judgments. Even assuming that Doumbia demonstrated that the performance of either his trial counsel or appellate counsel was professionally unreasonable, he has failed to demonstrate that but for their "errors" the results in either the trial or appellate court would have been beneficially different for him. Therefore, the Court finds that Doumbia is not entitled to the relief he seeks, based on his claims of ineffective assistance from trial and appellate counsel, premised on their respective failures to challenge the court's use of the 2000 edition of the sentencing guidelines.
Ex Post Facto Claim
Doumbia asserts his counsel's failure to object to the court's use of sentencing guidelines provisions that had been deleted from the sentencing guidelines manual at the time of his sentencing proceeding, resulted in a violation of the Constitution's Ex Post Facto Clause and the imposition of a greater sentence than that to which he was legitimately exposed. The respondent contends Doumbia's claim must fail because the sentencing guidelines protect against a violation of the Ex Post Facto Clause by allowing a sentencing court to use either the sentencing guidelines in effect at the time of sentencing or those in effect at the time of the charged crime, whichever is more favorable to the person to be sentenced. According to the respondent, there was no Ex Post Facto Clause violation in the instant case because Doumbia's total offense level would have been at least one level higher if the 2001 edition of the sentencing guidelines had been employed. While Doumbia does not claim explicitly that his counsel's failure to object amounted to ineffective assistance, the Court, interpreting the pleadings of this pro se litigant liberally, as it must, see Dibbs v. Roldan, 356 F. Supp. 2d 340, 348 (S.D.N.Y. 2005), will review this claim as one alleging that the petitioner received ineffective assistance from his trial counsel.
The Constitution provides that "[n]o Bill of Attainder or ex post facto Law shall be passed." U.S. Const. Art. I, § 9, cl. 3. Generally, in determining the sentence to impose, courts apply the sentencing guidelines in effect on the date of sentencing.See 18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11(a). However, the sentencing guidelines provide, in pertinent part, that if "the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." U.S.S.G. § 1 B1.11 ((b)(1). "The last date of the offense, as alleged in the indictment, is the controlling date for ex post facto purposes." United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995).
Doumbia was sentenced in December 2001. Therefore, the court should have used the sentencing guidelines in effect at that time, unless it determined that using them would have violated the Ex Post Facto Clause of the Constitution. In such a circumstance, the sentencing guidelines in effect at the time of the last offense — temporally speaking — alleged in Doumbia's indictment should have been employed. Although the court did not determine that using the 2001 edition of the sentencing guidelines would have violated the Ex Post Facto Clause, your Honor, nevertheless, applied the 2000 edition of the sentencing guidelines.
Doumbia's indictment alleged, inter alia, that he conspired with others to defraud various financial institutions between October 2000 and December 2000. Therefore, the last charged offense occurred in 2000. As discussed earlier in this writing, had the 2001 edition of the sentencing guidelines been used to determine Doumbia's sentence, the period of incarceration to which he would have been exposed would have been greater than that to which he was exposed based on the 2000 edition of the sentencing guidelines. Therefore, the Court finds that there was no Ex Post Facto Clause violation, and Doumbia's claim of ineffective assistance of counsel, premised on his counsel's failure to object to the court's use of the 2000 edition of the sentencing guidelines, lacks merit.
Conflict of Interest Claim
Doumbia maintains a conflict of interest was created between him and his trial counsel when the court permitted counsel to speak, on the record, at the closed hearing held to address Doumbia's request that the court appoint different counsel to represent him. According to Doumbia, this conflict violated his Sixth Amendment right to effective assistance of counsel. The respondent contends Doumbia has failed to demonstrate an actual conflict of interest existed and, further, that the record does not establish that any conflict of interest existed. The respondent maintains the record establishes only that Doumbia was disappointed because his trial counsel was unable to secure a transfer of Doumbia's Nevada case to this judicial district for sentencing. Moreover, the respondent notes that, during the pleading proceeding, Doumbia indicated that he was satisfied with the performance of his trial counsel.
The Sixth Amendment "right to counsel includes 'a correlative right to representation that is free from conflicts of interest.'" United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004) (citations omitted). In order to prevail on a Sixth Amendment violation claim that is based on an alleged actual conflict of interest, as opposed to a per se or potential conflict of interest, it must be shown that counsel labored under an actual conflict of interest and that this actual conflict of interest affected counsel's performance adversely.See Williams, 372 F.3d at 102-03; Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S. Ct. 1708, 1718 (1980). A rebuttable presumption of prejudice arises once the existence of an actual conflict of interest that affected an attorney's performance adversely is established. See United States v. White, 174 F.3d 290, 295 (2d Cir. 1999). However, "'an actual conflict of interest' does not necessarily arise every time that an attorney responds to allegations of incompetent representation or contradicts his client in open court" and a criminal defendant cannot create an actual conflict of interest "simply by 'expressing dissatisfaction with his attorney's performance.'"United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000). "[T]he more common complaints [criminal] defendants make in efforts to be rid of an appointed attorney do not give rise to a conflict of interest, even though the attorney may contradict the defendant's allegation in responding to the accusation." Id. Where, as here, the basis for Doumbia's complaint is his dissatisfaction with his trial counsel's performance, the Strickland standard, "requiring an affirmative showing of both objectively unreasonable performance and prejudice," applies and must be satisfied before it can be said that ineffective assistance was rendered by counsel. See Moree, 220 F.3d at 71.
In the instant case, Doumbia made a pre-pleading, ex parte motion to have his appointed counsel replaced. In a closed hearing in the presence of his counsel, Doumbia expressed dissatisfaction with: (a) his counsel's inability to have Doumbia's Nevada case transferred to this judicial district for sentencing; and (b) certain conduct outlined in the indictment for which Doumbia's counsel advised him to accept responsibility. When the court inquired of Doumbia what the essence of the problem was, Doumbia responded: "The problem is not in pleading. The problem is, we don't understand each other." At your Honor's request, counsel clarified the controversy respecting transferring the Nevada case to New York and the potential impact Doumbia's Nevada case might have on the sentence he might receive in connection with the New York case should Doumbia tender a plea of guilty. The court denied Doumbia's application for appointment of different counsel. The pleading proceeding went forward and, at the end of the proceeding, Doumbia acknowledged that, despite what had transpired earlier concerning his motion for appointment of different counsel, he was satisfied with the assistance his counsel had provided to him.
The fact that Doumbia's counsel spoke during the hearing on his client's application for appointment of different counsel does not, by itself, create an actual conflict of interest. This is so because Doumbia's counsel was responding to the court's request that he clarify matters for it. Doumbia has offered nothing more than his counsel's response to the court's inquiry to demonstrate that an actual conflict of interest existed between him and his trial counsel. Therefore, the Court finds that Doumbia has failed to demonstrate that: (i) an actual conflict of interest existed between him and his trial counsel; (ii) his trial counsel's performance fell below an objective standard of reasonableness; and (iii) he was prejudiced. Accordingly, Doumbia is not entitled to the relief he seeks through this motion based on his conflict of interest claim.
Guilty Plea Advice
Doumbia alleges his trial counsel rendered ineffective assistance to him by failing to investigate and prepare a meaningful and adequate defense. According to Doumbia, as a result, his plea of guilty was ill-advised since he pleaded guilty to charges that pertain to a loss amount that exceeded the amount of the actual loss for which Doumbia was responsible. The respondent contends Doumbia failed to provide any evidence to rebut the presumption that his counsel's performance was reasonable. Furthermore, the respondent also contends the record shows that Doumbia acknowledged his guilt, discussed his options with his counsel, repeatedly, before tendering his guilty plea, and stated, under oath, that he was satisfied with his counsel.
The Court agrees with the respondent that Doumbia has not met the burden placed on him in order to obtain relief based on this claim. "[U]ndetailed and unsubstantiated assertions that counsel failed to conduct a proper investigation have consistently been held insufficient to satisfy either Strickland prong." Polanco v. United States, No. 99 Civ. 5739, 94 CR. 453, 2000 WL 1072303, at *10 (S.D.N.Y. Aug. 3, 2000). Furthermore, the conclusory statements Doumbia has made regarding: (i) the poor advice he received from counsel, that caused him to be sentenced as if he were responsible for a loss to the victim that exceeded the actual loss for which Doumbia wishes to take responsibility; and (ii) his claim that counsel failed to acquaint himself with the 2001 edition of the sentencing guidelines, are not supported by the record. Moreover, as discussed above, Doumbia is mistaken in his belief that his sentence should have been based solely on the actual loss amount suffered by the victim. Therefore, Doumbia is not entitled to relief based on this claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Doumbia's application for an order vacating, setting aside or correcting his sentence be denied.
V. 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 (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 Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); 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, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).