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Fernandez v. Artus

United States District Court, S.D. New York
Jul 3, 2008
07 Civ. 2531 (GBD) (KNF) (S.D.N.Y. Jul. 3, 2008)

Opinion

07 Civ. 2531 (GBD) (KNF).

July 3, 2008


REPORT AND RECOMMENDATION


INTRODUCTION

Jose Fernandez ("Fernandez"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner alleges his confinement by New York State is unlawful because: (1) his conviction was based on insufficient evidence and was against the weight of the evidence; (2) the trial court's jury instruction on robbery was defective; (3) his trial counsel rendered ineffective assistance to him when he failed to object to the jury instruction on felony murder; and (4) his incriminating statements were received into evidence in violation of his rights under the Sixth and the Fourteenth Amendments to the United States Constitution. The respondent opposes the petition.

The weight of the evidence is an issue of state law, see New York Criminal Procedure Law § 470.15(5), and, as such, does not present any federal issue; thus, this claim is not cognizable on federal habeas corpus review. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990).

BACKGROUND

Rafael and Robinson Paulino were staying with their uncle Hector Paulino ("H. Paulino") in apartment No. 44, in a building on West 161th Street, Manhattan. H. Paulino sold drugs from a room in apartment No. 35, located on a lower level of the same building. Part of apartment No. 35 was occupied by Violet Medrano ("Medrano"), her husband Rafael Torres ("Torres"), and Torres' brother "Andrews" and nephew "Elvis." On October 18, 1988, Luis Jose Alvarez Salazar ("Salazar") visited H. Paulino in order to purchase a kilogram of cocaine. H. Paulino informed Salazar that the drugs were not "that good" and asked Salazar if he wanted to inspect them. Salazar was taken to apartment No. 35, where he observed five or six kilograms of cocaine, in a safe, inside one of the closets. However, after inspecting the cocaine, Salazar declined to purchase it. Shortly afterwards, Salazar met with Fernandez, Pablo Almonte ("Almonte"), Freddie Parra and Daniel Mirambeaux ("Mirambeaux"), and told them he knew where they could obtain cocaine. They all decided to "go and get those drugs." The others told Salazar to call H. Paulino to tell him he had changed his mind about the purchase.

Salazar returned to H. Paulino's apartment building, and was taken by Rafael and Robinson Paulino downstairs to apartment No. 35, where the drugs were stored. As the men walked down the stairs, they met Fernandez. Rafael Paulino and Salazar entered apartment No. 35, and Rafael Paulino retrieved plastic bags containing cocaine. As Rafael Paulino and Salazar opened the door to leave the apartment, Mirambeaux appeared before them, holding a silver 9 millimeter automatic gun. Mirambeaux, Fernandez and Almonte entered apartment No. 35, and Mirambeaux directed Salazar and Rafael Paulino to the rear bedroom, where the drugs were located. Mirambeaux took the plastic bags of cocaine from Rafael Paulino, forced him to open a safe within the apartment and retrieved the remaining drugs. All the drugs were placed in a black garbage bag, and Rafael Paulino and Salazar were tied up by Mirambeaux, Fernandez and Almonte. Thereafter, Robinson Paulino, who did not enter the apartment with Rafael Paulino and Salazar, knocked on the apartment door and was pulled inside and tied up by the intruders. Shortly afterwards, Medrano and Torres entered the apartment. When they did so, Medrano and her husband found Andrews and Elvis were bound. Medrano and her husband were also tied up by the intruders. At some point, Medrano informed Mirambeaux that a police officer was on the first floor of the apartment building. Fernandez, Mirambeaux and Almonte grabbed the black garbage bag containing cocaine and exited the apartment.

While the intruders were in apartment No. 35, Police Officers Joseph Barbato ("Barbato") and Michael Buczek ("Buczek") arrived at the apartment building in response to a radio transmission indicating that someone at that location needed medical assistance. After determining that their presence was not needed, Barbato and Buczek began to exit the apartment building. In the building's lobby, the officers encountered an emergency medical services ("EMS") employee, whom they engaged in conversation. After the conversation ended, Barbato and Buczek noticed Mirambeaux and Almonte walking from the stairs toward the building exit. Mirambeaux and Almonte looked suspicious to the officers because, on their way toward the exit, the two men failed to acknowledge the officers' presence, so the officers decided to stop and question the two men. When the officers exited the building, Buczek yelled: "Stop, police, stop," but the two men increased their pace. The officers pursued the two men. Eventually, Buczek was able to grab Almonte, while Barbato grabbed Mirambeaux, who displayed a gun and started firing. Barbato returned fire, aiming at Mirambeaux, after which he summoned assistance from other police officers and attended to Buczek, who had been shot in the left side of his chest. Buczek expired later that evening. Three 9 millimeter discharged shells, one live 9 millimeter bullet, one .38 caliber bullet and blood samples were recovered by police officers from the scene of the shooting.

At the time shots were fired, Anthony Jorge ("Jorge") was selling drugs on West 160th Street, Manhattan. He heard the shots and observed a group of people walking quickly toward him. Jorge observed a man drop a black garbage bag near the curb on West 160th Street and then continue walking. He also observed Mirambeaux and Almonte. Almonte entered a nearby building, while Mirambeaux remained on the sidewalk. According to Jorge, a police officer approached Mirambeaux and had a brief conversation with him. Thereafter, the police officer proceeded to walk in the direction Mirambeaux had indicated to him. Almonte exited the building he had entered and Jorge noticed that Almonte was bleeding from his left shoulder. Jorge observed Mirambeaux and Almonte enter a taxi, which already had a passenger in its rear seat. Jorge went to the place where the black garbage bag had been dropped. He noticed that someone had opened that bag. It contained money and drugs; Jorge joined others in removing the contents of the bag, until the bag was empty.

When Officer Patrick Streffacio ("Streffacio") arrived at the scene where Barbato was attending to Buczek, Barbato pointed in a southerly direction, and Strefaccio started running that way. On West 160th Street, Streffacio recovered a jacket with a pocket that contained a gun and keys. Thereafter, he traveled with Barbato and Buczek via ambulance to a hospital. A detective, who inspected the retrieved jacket and gun in the hospital, observed blood on and several holes in the jacket.

At approximately 11:00 p.m. on October 18, 1988, Fernandez, Mirambeaux and Almonte appeared at the home of Diogenes Hernandez ("Hernandez"). They asked Hernandez to summon his brother, a physician, to attend to Almonte's injury. When Hernandez failed to reach his brother, he brought a "Dominican doctor" to his apartment to treat Almonte. While Almonte was being treated, his wife was brought to the apartment. Mirambeaux instructed her to purchase airplane tickets to the Dominican Republic for her and her husband.

On October 19, 1988, Salzar returned to the location where he usually sold drugs and met Fernandez, Mirambeaux and a few others. Fernandez reported that he had rid himself of the black garbage bag, because Almonte was wounded and he had to assist Mirambeaux. On the same day, Fernandez sold his automobile to a friend. On October 22, 1988, Mirambeaux and Fernandez, using the name Pedro Peralta, flew from New York City to Santo Domingo. On October 28, 1988, Salazar offered to cooperate with the police. He told a police detective about the events of October 18, 1988, and provided the names of those who were involved. However, Salazar did not admit his own involvement in the event. The following day, fearing he would be arrested, Salazar failed to return to the police precinct and one week later, he left New York for Santo Domingo. In November 1988, H. Paulino and Rafael and Robinson Paulino admitted selling drugs and being robbed. In 1989, a detective investigating the October 1988 shooting learned that Mirambeaux, who was then in police custody in the Dominican Republic, had died.

A deoxyribonucleic acid test established that the blood found on the jacket Streffacio recovered at the crime scene, as well as blood leading away from that location, belonged to Almonte. One of the keys found in that jacket opened a lock on a gate at an apartment building where Almonte resided with his wife, in 1988. Another key found in the jacket corresponded to the automobile Fernandez had sold to a friend. In 1997, Salzar was arrested in the United States on drug charges, agreed to cooperate with the police and provided them with details of the October 18, 1988 robbery. Salazar admitted to police personnel that he was the person who initiated that crime.

In the early 1990s, while Fernandez was in Santo Domingo, he met an old acquaintance, Luis Conrado Ramirez Mato ("Ramirez"). Fernandez told Ramirez that he and two others had participated in a New York robbery involving "a dead policeman" and recounted the details of the events of October 18, 1988. However, in 1996, Ramirez and Fernandez became estranged and, after that, Ramirez spoke to Dominican authorities about Fernandez's confession. In April 2001, Ramirez testified before a New York County grand jury. That same year, a New York County grand jury indicted Fernandez for second-degree felony murder. Dominican authorities arrested Fernandez on December 12, 2001. Subsequently, he was extradited to the United States.

On March 13, 2003, Jose Fuertes ("Fuertes"), incarcerated and awaiting his sentence on a drug-related conviction, was transferred from the Brooklyn House of Detention to the Manhattan House of Detention ("MHD"), where he encountered Fernandez. The two men became friendly, and Fernandez told Fuertes he was incarcerated in connection with the murder of a police officer. Fuertes and Fernandez had a series of conversations about Fernandez's case; those conversations continued after the Fernandez's trial commenced in April 2003. Fernandez told Fuertes about the scheme through which Salazar entered a drug dealer's apartment to purchase drugs and, when he began to exit, Fernandez and others brought him back in and stole the dealer's drugs. Fernandez also told Fuertes that, when he and his accomplices entered the drug dealer's apartment, they restrained the people who were inside, including a woman with a child, robbed the man who planned the robbery and the man who sold the drugs, of about five kilograms of cocaine. Fernandez stated that, when it was learned that police officers had arrived at the apartment building, he was instructed to take a bag containing drugs and leave the building. Fernandez recalled that he was the first to exit the building and, as he did so, he observed police officers and EMS employees, but did not believe they saw him. Fernandez explained to Fuertes that, as he walked away from the apartment building, he heard a gunshot and, because police officers were in the vicinity, he dropped the bag he had carried away from the apartment building. Fernandez explained further that, although he had intended to retrieve the bag he dropped, due to the presence of police officers in the area, he determined to leave the scene and did not retrieve the bag. After his trial started, Fernandez told Fuertes he did not understand why Robinson Paulino was summoned to testify, as he had not been at the scene of the robbery, and that only Rafael Paulino had been present, along with the person who planned the robbery. Fernandez also told Fuertes that, although Rafael Paulino testified that only one pound of cocaine had been stolen, in fact, they had stolen approximately five kilograms of cocaine.

In January 2003, prior to meeting Fernandez, Fuertes had entered into a cooperation agreement with Luis Peral ("Peral"), an assistant district attorney with the Office of the Special Narcotics Prosecutor, Special Investigation Bureau. The agreement provided that Fuertes would be permitted to plead guilty to a reduced charge and that a recommendation would be made to the court that he receive a reduced sentence, if he supplied narcotics-related information to Peral. Fuertes supplied information to Peral about: (a) corrupt correction officers at the Rikers Island jail facility in Queens, New York; and (b) stolen artifacts. As that information did not concern narcotics, Peral forwarded the information received from Fuertes to the appropriate officials for investigation. Subsequently, after speaking with Fuertes' counsel, Peral determined that Fuertes did not possess any useful information and directed the court clerk to schedule a sentencing date for Fuertes; the cooperation agreement was thus terminated.

On March 13, 2003, Fuertes was transferred to a federal prison, due to his unlawful entry into the United States. On or about April 30, 2003, Fuertes's counsel informed Peral that Fuertes had information concerning "a big case," a homicide trial, that was proceeding at that time. Peral advised Fuertes' counsel that he would connect him with the assistant district attorney assigned to that case, once he ascertained that person's name. Peral communicated what he learned from Fuertes' counsel to his bureau chief, John Gray ("Gray"). Thereafter, Gray advised Fernandez's prosecutor that Fuertes had information concerning Fernandez's case. Without discussing the nature of the information, Fernandez's prosecutor directed his assistant to schedule Fuertes to testify on May 7, 2003. However, on May 6, 2003, the prosecutor learned that Fuertes had been transferred to MHD on May 5, 2003. Eventually, Fuertes was summoned to testify as a prosecution witness at Fernandez's trial. At the time Fuertes testified at Fernandez's trial, he was still awaiting the sentence on his drug-related conviction.

On May 21, 2003, the trial court conducted a suppression hearing, based on a defense motion made pursuant to Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964), to determine whether Fuertes was acting as a law-enforcement informant, under a broad cooperation agreement with prosecutorial officials. On May 22, 2003, the court denied Fernandez's suppression motion, after determining that: (a) "absolutely nothing was done by the prosecutor's office to affirmatively seek the assistance of Fuertes in the investigation or prosecution of Mr. Fernandez;" (b) Peral was unaware of Fernandez's case or Fernandez's place of confinement when the conversations he had with Fuertes occurred; (c) the prosecutor assigned to Fernandez's trial was completely unaware of Fuertes' existence, until he was contacted by Gray, on April 30, 2003, and he did not know that the information had come from Fernandez until May 2, 2003; (d) the prosecutor did not know of any conversations between Fuertes and Fernandez and did not encourage such conversations; (e) the cooperation agreement Fuertes had with Peral "had concluded and that cooperation never had anything to do with [Fernandez's] trial;" and (f) the prosecutor "did not do anything, either explicitly or implicitly, to create an agency relationship with Fuertes in connection with any of his interactions with the Defendant Fernandez at the time of those transactions." On May 28, 2003, Fernandez was convicted for second-degree murder. On June 19, 2003, he was sentenced to an indeterminate term of 25 years to life imprisonment.

In December 2003, Fernandez appealed to the New York State Supreme Court, Appellate Division, First Department, from the judgment of conviction, arguing that: (1) the evidence supporting the conviction was insufficient as a matter of law and against the weight of the evidence and, further, the trial court's jury instruction on robbery was defective and prejudicial; and (2) his rights against self-incrimination and to the assistance of counsel were violated when the court received Fuertes' testimony into evidence. On November 29, 2005, the Appellate Division affirmed Fernandez's conviction unanimously. It determined that: (a) the verdict was based on legally sufficient evidence and was not against the weight of the evidence; (b) no basis existed for disturbing the jury's determination of credibility and the larceny aspect of the underlying crime of robbery, in Fernandez's felony murder case, was established because, not only did the robbers steal drugs that had already been sold to one of them, but two witnesses gave credible testimony that the robbers stole additional drugs that were not part of the transaction; and (c) the trial court denied properly Fernandez's suppression motion. The Appellate Division reasoned as follows:

The fact that the witness had a prior cooperation agreement with the People and had provided information in other cases did not automatically make him an agent of the government with regard to this case. . . . The cooperation agreement the witness had previously entered into did not authorize him to undertake his own unrelated investigations, or to do anything without prior approval, and there was no evidence of a tacit understanding, as defendant alleges. Instead, the witness acted on his own, outside of the scope of his agreement and without any kind of agency relationship with the prosecution.

The Appellate Division also found that Fernandez received effective assistance from his counsel and that his remaining claims had not been preserved for appellate review. However, the court noted, were it to review them, it would find no basis for reversal. People v. Fernandez, 23 A.D.3d 317, 318, 806 N.Y.S.2d 476, 477 (App.Div. 1st Dep't 2005). Fernandez sought leave to appeal to the New York Court of Appeals from the determination of the Appellate Division. On February 28, 2006, the New York Court of Appeals denied Fernandez's request for leave to appeal to that court. See People v. Fernandez, 6 N.Y.3d 812, 812 N.Y.S.2d 452 (2006). Thereafter, Fernandez filed the instant petition timely.

DISCUSSION

Standard of Review

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.; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. 2254(d).

A state-court decision is "contrary to" the Supreme Court's precedent: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law;" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000). A state-court decision involves an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if: (1) "the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;" or (2) "the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."Id., at 407, 120 S. Ct. at 1520. To prevail under the "unreasonable application" clause it is not sufficient to show that the state court decision is "more than incorrect or erroneous," it must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1174 (2003). On a federal habeas corpus petition, the petitioner bears the burden of proving, by a preponderance of the evidence, that a violation of his constitutional rights occurred. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). If a state prisoner's federal claim was adjudicated on the merits, a federal court must presume any determination of a factual issue made by a state court to be correct and a habeas corpus petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). A state court adjudicates a constitutional claim on the merits when it: (a) disposes of the claim on substantive grounds; and (b) reduces its disposition to judgment. See Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (citing Sellan v. Kuhlman, 261 F.3d 303, 312 [2d Cir. 2001]). No articulation of the state court's reasoning for disposing of the claim is required, as long as a substantive ground is a basis for the disposition. See id. The Appellate Division reviewed and rejected, on the merits, all Fernandez's claims, except his claim that the trial court's jury instruction was defective, which it found unpreserved for appellate review.

Procedurally Defaulted Defective Jury Instruction Claim

A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state-law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). A procedural default in a state court will bar federal habeas review where "the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989) (citation omitted). Moreover, "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of a federal claim." Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (citations omitted). A state procedural rule is "independent" of the merits of a federal-law claim when the state court actually relies on the procedural bar as an independent basis for its disposition. See Harris, 489 U.S. at 261-62, 109 S. Ct. at 1042. "Ordinarily, violation of 'firmly established and regularly followed' state rules . . . will be adequate to foreclose review of a federal claim[,]" save for "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885 (2002); see Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003). A state contemporaneous-objection requirement violation is an adequate procedural ground barring review of a claim in a federal habeas corpus proceeding. See CPL § 470.05.

A procedural default may be excused by the court if a habeas corpus petitioner can show cause for the default and prejudice resulting from it, or that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. To establish cause, a petitioner must demonstrate "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Objective factors that constitute cause include, inter alia, "some interference by officials" that made compliance with the applicable state procedural rule impracticable or "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id. Additionally, ineffective assistance rendered to a petitioner by counsel constitutes cause for a procedural default. However, generally, such a claim must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 489, 106 S. Ct. at 2646.

The respondent contends Fernandez defaulted with respect to his defective jury instruction claim because he failed to object to the jury instruction timely, at the trial, and he did not demonstrate cause for his default. Moreover, according to the respondent, Fernandez has not shown that the trial court's actions resulted in unfair prejudice, or that a miscarriage of justice would result should the court fail to consider his claim.

The Court agrees with the respondent. The Appellate Division rejected Fernandez's defective jury instruction claim because he violated a state contemporaneous-objection requirement, which is an independent and adequate state-law procedural ground that bars review of this claim in a federal habeas corpus proceeding. Fernandez failed to show that some objective factor external to the defense impeded his counsel's efforts to comply with the state's procedural rule and the prejudice resulting from it, or that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. Although Fernandez raised a claim of ineffective assistance of counsel, on direct appeal, premised on his attorney's failure to object to the jury instruction, that claim was rejected on the merits by the Appellate Division and Fernandez failed to demonstrate, as indicated below, that the Appellate Division's adjudication of his ineffective assistance of counsel claim resulted in a decision that was: (i) contrary to or involved an unreasonable application of clearly established federal law; or (ii) based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding. Therefore, Fernandez's claim of ineffective assistance of counsel cannot constitute cause for his procedural default. Accordingly, Fernandez's defective jury instruction claim is barred from habeas corpus review, and he is not entitled to relief based on that claim.

Claims Adjudicated on the Merits

In support of his habeas corpus petition, Fernandez repeats the same arguments he presented to the Appellate Division. Although Fernandez submitted his "MEMORANDUM IN SUPPORT OF HABEAS CORPUS PETITION OVERVIEW AND PROCEDURAL HISTORY," this document is almost identical to his brief on direct appeal, with a few exceptions: (a) the word "Appellant" in the direct appeal brief has been replaced by the word "Petitioner" in the habeas corpus petition; and (b) Fernandez's ineffective assistance of counsel claim has been expanded in the habeas corpus petition to include the governing federal law and the following assertions: (i) "there was no downside, nor could the defense have been adversely affected by trial counsel's objection to the court's incomplete and inadequate charge, and counsel's failure to understand the applicable law, without any plausible justification, was a significant dereliction by defense counsel;" and (ii) the "state court's resolution of petitioner's ineffective assistance of counsel claim was clearly in error, and it is obvious from the record that defense counsel's error cannot be attributed to trial strategy or tactics." However, Fernandez failed to identify how the Appellate Division's decision on his claims was either contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. Fernandez's assertion, that "[t]he state court's resolution of [his] ineffective assistance of counsel claim was clearly in error, and it is obvious from the record that defense counsel's error cannot be attributed to trial strategy or tactics" does not establish, without more, that the Appellate Division's adjudication of that claim resulted in a decision that was contrary to or involved unreasonable application of clearly established federal law. Furthermore, Fernandez failed to show that the state court's decision on his claims is grounded on an unreasonable determination of the facts. Additionally, Fernandez did not present any evidence to the Court that rebuts the presumption of correctness accorded to the factual findings made in the state court respecting his claims.See 28 U.S.C. § 2254(e)(1). Therefore, the Court finds that Fernandez failed to meet the burden imposed on him by the relevant statute. Consequently, he is not entitled to habeas corpus relief based on his claims that have been adjudicated, on the merits, by the state court.

RECOMMENDATION

For the foregoing reasons, I recommend that the petition be denied.

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 Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels 500 Centre Street, Room 630, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 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, 237-38 (2d Cir. 1983).


Summaries of

Fernandez v. Artus

United States District Court, S.D. New York
Jul 3, 2008
07 Civ. 2531 (GBD) (KNF) (S.D.N.Y. Jul. 3, 2008)
Case details for

Fernandez v. Artus

Case Details

Full title:JOSE FERNANDEZ, Petitioner, v. DALE ARTUS, SUPERINTENDENT OF CLINTON…

Court:United States District Court, S.D. New York

Date published: Jul 3, 2008

Citations

07 Civ. 2531 (GBD) (KNF) (S.D.N.Y. Jul. 3, 2008)