Opinion
9:18-CV-483 (BKS/TWD)
08-20-2021
JERRY MASSEY, Petitioner, v. H. GRAHAM, Respondent.
JERRY MASSEY Petitioner, pro se HON. LETITIA A. JAMES Attorney General for the State of New York Counsel for Respondent MICHELLE ELAINE MAEROV, ESQ. Assistant Attorney General
JERRY MASSEY
Petitioner, pro se
HON. LETITIA A. JAMES
Attorney General for the State of New York
Counsel for Respondent
MICHELLE ELAINE MAEROV, ESQ.
Assistant Attorney General
ORDER AND REPORT-RECOMMENDATION
TNERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE.
Jerry Massey (“Massey” or “Petitioner”) filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 2014 conviction following a guilty plea in the State of New York Supreme Court, County of Onondaga (the “Trial Court”), of robbery in the second degree. (Dkt. No. 1 at 1.) Petitioner asserts he is entitled to relief because he should have been afforded the opportunity to withdraw his guilty plea and he was denied the effective assistance of counsel during his plea allocution. Id. at 5, 7; see also Dkt. No. 10. Harold Graham, through the State of New York, (the “State” or “Respondent”) opposes Massey's petition. (Dkt. Nos. 6, 7.) For the reasons set forth below, this Court recommends denying Petitioner's request for a writ of habeas corpus in its entirety and declining to issue a certificate of appealability.
Citations to page numbers in the filings refer to the pagination CM/ECF automatically generates.
I. BACKGROUND
An Onondaga County grand jury charged Petitioner with second degree burglary. (Dkt. No. 8-1 at 145.) According to the indictment, Petitioner and two other men broke into a private home and stole marijuana. Id. On December 15, 2014, Petitioner pled guilty to second degree burglary. (Dkt. No. 7-1.) During the colloquy, the Trial Court described the terms of the guilty plea as Petitioner “capping off his exposure as no worse than nine years.” Id. at 4. The district attorney representing the state noted the minimum sentence he could receive based on his plea was five years and Petitioner's attorney-Mr. Hennessy-was going to present equities to the District Attorney's Office and they would recommend a sentence later between five and nine years. Id. at 3-4.
During the plea allocution, Petitioner said he understood the terms of his plea agreement and knew the consequences of his guilty plea. Id. at 4-8. Petitioner then admitted the relevant facts in the indictment and pled guilty to the crime of burglary in the second degree in violation of Penal Law 140.25. Id. at 8. The Trial Court set a tentative date for sentencing on February 13, 2015. Id. at 10.
In February, at the sentencing hearing, the Trial Court discussed a letter it received from Petitioner that the Trial Court construed as a motion to withdraw his guilty plea. Id. at 13. The Trial Court adjourned the sentencing at that time to February 17, 2015, because Mr. Hennessy was not present. Id. at 14. Petitioner was held without bail after this hearing. Id. On February 27, 2015, the Trial Court considered Petitioner's motion to withdraw his guilty plea. At this hearing, Mr. Baska represented Petitioner. Id. at 21. Mr. Baska told the Trial Court that they intended to withdraw Petitioner's pro se motion to withdraw the guilty plea. Id. at 22. The proceedings were then adjourned, and Petitioner was released on his own recognizance. Id. at 23. On April 1, 2015, a hearing was scheduled but Petitioner did not appear. Thus, the presiding judge issued a warrant for his arrest. Id. at 25.
Petitioner returned to court on February 17, 2015, with attorney Robert Baska representing him but the Trial Court adjourned the hearing so Mr. Hennessy could be present. (Dkt. No. 7-1 at 18.)
On June 12, 2015, Petitioner appeared in court after being arrested on other charges. Id. at 28. Prior to this hearing, Petitioner (through counsel) submitted a N.Y. C.P.L. § 330 motion contending the Trial Court erred in not letting him withdraw his guilty plea. Id. The motion included an affidavit from Mr. Hennessy, Petitioner's previous counsel, asserting Petitioner accepted the original plea agreement “with the understanding that if he did enough work with investigators, he would be allowed to withdraw his plea.” Id. at 29. Mr. Hennessy also alleged Petitioner believed his sentencing would be postponed indefinitely if he was willing to work with investigators and that, though no promises were made, he could get a better disposition based on his cooperation. Id.
The Trial Court rejected Petitioner's arguments. Id. at 29. Specifically, the Trial Court noted Petitioner failed to holdup his end of the bargain in the plea deal and cooperate with law enforcement. Id. at 30. Mr. Baska, Petitioner's attorney, argued Petitioner lost trust in the court system when he was held in custody after a hearing where his attorney failed to show and that was one reason why he did not continue to aid investigators. Id. at 31. Mr. Baska also argued Petitioner had hoped he could plead guilty to a crime that would not require any prison time at all. Id. at 32. Mr. Baska argued that Petitioner's guilty plea to second degree burglary was a “legal fiction” so he could get a better deal from the prosecution in the future after cooperating. Id. at 32. In other words, he argued Petitioner did not believe his guilty plea would result in a sentence for the crime he admitted to committing but would rather facilitate further cooperation with the prosecution who would then ultimately allow him to withdraw his plea.
The Assistant District Attorney (“ADA”) for the case, Mr. Moran, agreed that the original understanding of the guilty plea was that, had Petitioner “gone above and beyond and solved four homicides, he could have been allowed to withdraw his plea and got a non-jail sentence.” Id. at 36. Thus, Mr. Moran suggested that Petitioner's guilty plea was knowing because it provided him an opportunity to get a lesser sentence but Petitioner “chose to stop cooperating.” Id. Mr. Moran also noted there were no promises made to allow Petitioner to withdraw his guilty plea automatically at some future date. Id. Rather, the agreement contemplated that the People might consent to a withdrawal of his original plea if Petitioner cooperated with investigators. Id. at 44-45.
Ultimately, the Trial Court sentenced Petitioner to nine years with five years of post-release supervision. Id. at 46.
Petitioner appealed, arguing, among other things, that he should have been afforded an opportunity to withdraw his guilty plea and that his counsel was ineffective. (Dkt. No. 8-1.) The Appellate Division, Fourth Department, rejected Petitioner's claims. People v. Massey, 149 A.D.3d 1524 (4th Dept. 2017) (Massey I), amended on reargument, 151 A.D.3d 1969 (Massey II) (4th Dept. 2017). First, the Fourth Department held that the record established Petitioner understood the consequences of his guilty plea and that it was not an abuse of discretion to refuse to deny the motion to withdraw the guilty plea. Massey II, 151 A.D.3d at 1969. To that end, the Fourth Department noted “[a]lthough [Petitioner] alleges that the prosecutor promised him the opportunity to withdraw his guilty plea if he provided information concerning other crimes, the record establishes that [he] refused to cooperate with the prosecutor in that regard. Furthermore, the minutes of the plea colloquy belie [Petitioner's] belated assertions of innocence and thus we conclude that the court did not abuse its discretion in denying his motion without a hearing.” Id. Further, the Fourth Department held Petitioner's ineffective assistance claim was meritless because he received an advantageous plea. Massey I, 149 A.D.3d at 1525 (citation omitted). Petitioner's application to appeal to the New York Court of Appeals was denied. (Dkt. No. 8-1 at 128.)
In this action, Petitioner renews his argument that the Trial Court abused its discretion in refusing to allow him to withdraw his guilty plea. (Dkt. No. 1.) Specifically, Petitioner argues his guilty plea was not entered “knowingly” because there were other promises the prosecution made that were not placed on the record when he pleaded guilty. Id. at 17. To that end, Petitioner argues the ADA agreed the plea deal contemplated that, had Petitioner “gone above and beyond and solved four homicides he could have been allowed to withdraw his plea and get a non-jail sentence.” Id. In sum, Plaintiff argues his guilty plea should have been allowed to be withdrawn because the plea allocution did not “encompass the complete understanding of the parties.” Id. at 20.
With respect to his claim for ineffective assistance of counsel, Petitioner argues Mr. Hennessy failed to clarify the record at his plea allocution regarding the lowest possible sentencing exposure. Id. at 20, 28. According to Petitioner, Mr. Hennessy should have placed it on the record that it was possible that Petitioner could withdraw the plea agreement if he worked with investigators. Id. To that end, Mr. Hennessy asserted in an affidavit that “[w]hen Mr. Massey accepted the plea, it was with the understanding that if he did enough work with investigators from the Sherriff's Department he would be allowed to withdraw his plea[.]” (Dkt. No. 1-1 at 16.) Mr. Hennessy also averred that Petitioner understood that, as long as the investigators were willing to work with him, his sentencing would be postponed so he could earn a better disposition. Id. Thus, Petitioner argues Mr. Hennessy was ineffective because he led Petitioner to believe that he could have received a lesser prison sentence if he cooperated with investigators. (Dkt. No. 1 at 26.) Petitioner contends Mr. Hennessy was also ineffective because he failed to file a motion to withdraw his guilty plea on Petitioner's behalf and then failed to show up to court on several occasions to represent Petitioner. Id. at 29.
Included in his petition are several exhibits including a text message conversation between Petitioner and Mr. Hennessy where Petitioner asks Mr. Hennessy to file a motion to withdraw his guilty plea. (Dkt. No. 1-1 at 1-2.) Petitioner has also enclosed his pro se motion to withdraw his guilty plea, id. at 3-4, and a letter he sent to the Trial Court for support. Id. at 5-6. In addition, Petitioner included a letter from the Attorney Grievance Committee indicating that it issued Mr. Hennessy a Letter of Caution related to his handling of the guilty plea. Id. at 8.
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a state prisoner may seek habeas corpus relief in federal court “on the ground that he is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). However, before a federal court can consider a state prisoner's habeas application, the applicant must exhaust his state remedies. Id. § 2254(b)(1)(A). “[E]xhaustion of state remedies requires that [a] petitioner fairly present federal claims to the state courts in order to give the [s]tate the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and alterations omitted)); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000). The exhaustion requirement is animated by “notions of comity between the federal and [s]tate judicial systems.” Strogov v. Attorney Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999); see also Davila v. Davis, --- U.S. __, 137 S.Ct. 2058, 2064 (2017) (“The exhaustion requirement is designed to avoid the ‘unseemly' result of a federal court ‘upset[ting] a state court conviction without' first according the state courts an ‘opportunity to . . . correct a constitutional violation.'”) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). Though a state prisoner is not required to cite “chapter and verse of the Constitution” to satisfy this requirement, Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir.1982) (en banc), he must present his challenge in terms that are “likely to alert the [state] court[s] to the claim's federal nature.” Lurie, 228 F.3d at 124 (quoting Daye, 696 F.2d at 192). The Second Circuit has instructed that a petitioner may satisfy the fair presentation requirement by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Daye, 696 F.2d at 194.
Here, there is no dispute that Petitioner raised the same facts in his state court actions as he now raises in his habeas petition. However, Respondent argues that Petitioner failed to present either of his claims as a federal constitutional claim and has therefore failed to exhaust his administrative remedies. (Dkt. No. 6-1.) Therefore, before proceeding to considering the merits of Massey's petition, the Court must determine whether his legal arguments put the state courts “on notice” of the federal nature of his claim.
With respect to his ineffective assistance of counsel claim, the state courts evidently understood this claim as a challenge pursuant to the New York law. Applying the Daye factors, this Court recommends finding that no federal claim was fairly presented to the state courts. His challenge was consistently expressed as an argument raising the New York ineffective assistance of counsel standards. Petitioner did not invoke “pertinent federal cases employing constitutional analysis, ” nor did he seek support for his contention from “state cases employing constitutional analysis in like fact situations.” Daye, 696 F.2d at 194. Though ineffective assistance claims are commonly understood as raising a Sixth Amendment challenge, Petitioner primarily relied on state court decisions interpreting state law. Notably, though he cited Strickland v. Washington, 466 U.S. 668 (1984), in his brief, he did so specifically to distinguish federal and state law for ineffective assistance of counsel and noted that the New York standard is easier to establish. (Dkt. No. 8-1 at 39-40 (stating that “[t]he [New York] standard for determining ineffective assistance of counsel is much more liberal than the Federal rule because New York's prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case.”).); see Anderson v. Harless, 459 U.S. 4, 7 n.3 (1982) (per curiam) (noting that the Supreme Court “doubt[s] that a defendant's citation to a state-court decision predicated solely on state law ordinarily will be sufficient to fairly apprise a reviewing court of a potential federal claim.”).
Importantly, his appeal to the Fourth Department hinged in large part on that court's interpretation of the New York cases People v. Harris, 97 A.D.3d 1111, 1112 (4th Dept. 2012), and People v. Dale, 142 A.D.3d 1287, 1290 (4th Dept. 2016). Harris held that a petitioner does not establish ineffective assistance of counsel for failing to bring a likely unsuccessful motion, see Harris, 97 A.D.3d at 1112, and Dale reiterated the New York law holding that, “[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of [defense] counsel.” Dale, 142 A.D.3d at 1290. Accordingly, this Court does not consider the Fourth Department's conclusion as a ruling on federal law. Rather, read in context, the Fourth Department was opining on a matter of state law.
Similarly, Plaintiff's claim that he “should have been afforded the opportunity to withdraw his guilty plea” was an argument couched in state law. To that end, Petitioner's argument-and the Fourth Department's reasoning-hinged on whether the state court judge abused his discretion in denying the motion to withdraw pursuant to N.Y. C.P.L. § 220.60. The Fourth Department noted that, according to New York law, “it is well established that the denial of a motion to withdraw a guilty plea is not an abuse of discretion absent ‘some evidence of innocence, fraud, or mistake in inducing the plea.'” Massey II, 151 A.D.3d 1969 (quoting People v. Noce, 145 A.D.3d 1456, 1457 (4th Dept. 2016)). Here, Petitioner's arguments to the State depended on whether he mistakenly took the plea bargain due to his understanding that he might be able to withdraw his plea if he provided substantial assistance to the prosecution. As the Fourth Department properly held, “[a]lthough defendant alleges that the prosecutor promised him the opportunity to withdraw his guilty plea if he provided information concerning other crimes, the record establishes that defendant refused to cooperate with the prosecutor in that regard. Furthermore, the minutes of the plea colloquy belie defendant's belated assertions of innocence[.]” Massey II, 151 A.D.3d 1969. As with his ineffective assistance of counsel claim, the Fourth Department relied on state decisions to reject his claim that the Trial Court should have granted his motion to withdraw his guilty plea. Thus, this Court concludes the Fourth Department's consideration and ultimate rejection of Petitioner's argument regarding his motion to withdraw his guilty plea was a state law issue. See, e.g., Chodakowski v. Annucci, No. 119CV00248LTSKHP, 2020 WL 9065795, at *7 (S.D.N.Y. Apr. 28, 2020) (finding petitioner did not exhaust a Sixth Amendment claim because his arguments to the state courts were understood as challenges to state procedural rules).
Put simply, the New York courts ruled-as a matter of state law-that Petitioner received effective assistance throughout the plea-bargaining stage and that the Supreme Court judge did not abuse his discretion in denying his motion to withdraw his guilty plea. Thus, in recognition of “our dual judicial system, ” and out of “concern for harmonious relations between the two adjudicatory institutions, ” this Court cannot find that Petitioner properly presented his federal claims to the state courts in a manner that would allow this Court to grant relief. Daye, 696 F.2d at 191; see also DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006); Galdamez v. Keane, 394 F.3d 68, 72-73 (2d Cir. 2005).
If a habeas applicant fails to exhaust state remedies the Court can dismiss the case without prejudice to allow the Petitioner to reargue the federal constitutional issues in state court. However, where, as here, state courts would deem the claims procedurally barred, this Court “must deem the claim [] procedurally defaulted.” Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (noting the “apparent salve” of deeming a claim not presented in state court exhausted is “cold comfort”). The Court's dismissal of an application for habeas relief on the ground of procedural default amounts to “a disposition of the habeas claim on the merits.” Id. An applicant seeking habeas relief may escape dismissal on the merits of a procedurally defaulted claim only by demonstrating “cause for the default and prejudice” or by showing that he is “actually innocent” of the crime for which he was convicted. Id.
The failure of Petitioner's counsel to press his arguments in federal constitutional terms “does not constitute cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 486 (1986). Moreover, the Court finds that there is no injustice done here because the New York courts were correct in their determinations regarding Petitioner's arguments. Even were the court to consider his claims as federal claims, the Court would still recommend rejecting his petition. Naturally, Petitioner's procedural defaults of his ineffective assistance and withdrawal of his guilty plea claims are prejudicial only if such claims are meritorious. Cappiello v. Hoke, 698 F.Supp. 1042, 1052 (E.D.N.Y.), aff'd, 852 F.2d 59 (2d Cir. 1988). Here, the Court finds they are not.
Under federal law, with respect to ineffective assistance of counsel in the context of guilty pleas, a petitioner must demonstrate that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). In this regard, the fundamental question is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970); United States v. Berger, 826 F.Supp. 100, 104 (S.D.N.Y.1993). Here, the Court is satisfied that Petitioner understood his plea allocution as providing him the opportunity to work with investigators to obtain a more favorable disposition. As Respondent correctly notes, “[t]he plea record accurately set forth the entire agreement: that petitioner would receive a sentence between five and nine years in exchange for his guilty plea to the indictment, depending upon [his] degree of cooperation with the District Attorney.” (Dkt. No. 6-1 at 22.) That he ultimately failed to provide such assistance is the reason he received the sentence he did. The record does not, as Petitioner appears to assert, demonstrate that he was ever promised that he could withdraw his guilty plea even if he failed to cooperate. Rather, Mr. Hennessy stated Petitioner's “understanding that if he did enough work with investigators from the Sheriff's Department he would be allowed to withdraw his plea” was not based on any “promises [that] were explicitly stated . . . .” (Dkt. No. 8-1 at 355.) Notably, the ADA explained at the plea allocution that “[n]o other promises have been made about potential sentences being any lower than five years.” (Dkt. No. 7-1 at 4 (Petitioner answering in the affirmative when asked if he understood the plea agreement as providing that “the minimum sentence” was five years).) In sum, the record in front of the Court establishes his plea bargain could have been advantageous had he cooperated. Accordingly, the Court finds Petitioner has not established cause for the default and prejudice necessary to excuse his procedural default.
With respect to his contentions regarding his guilty plea, had he raised such a claim as a due process violation under the United States Constitution, it would also likely fail. To that end, “[t]he longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the [petitioner].” Ferrer v. Superintendent, 628 F.Supp.2d 294, 304 (N.D.N.Y. 2008) (citation omitted). As a court in this District has explained:
Applying this standard, to establish that a criminal defendant's guilty plea was knowingly, intelligently, and voluntarily entered the court must find, based upon the record of the relevant plea proceedings, that he or she 1) was competent to proceed and was fully aware of the nature of the charges faced; 2) had a rational and factual understanding of the proceedings; and, 3) was cognizant of the constitutional protections relinquished upon entry of the plea.Capra v. LeClair, No. 06-CV-1230, 2010 WL 3323676, at *9 (N.D.N.Y. Apr. 12, 2010) (citing Oyague v. Artuz, 393 F.3d 99, 106 (2d Cir. 2004)). In evaluating whether a plea was knowing and voluntary, a court may consider, “among other things, [petitioner's] allocution statements.” Carpenter v. Unger, No. 10-CV-1240, 2014 WL 4105398, at *19 (N.D.N.Y. Aug. 20, 2014) (citing United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)). “Where . . . [petitioner] . . . has explicitly stated in his allocution that he fully understands the consequences of his plea and that he has chosen to plead guilty after a thorough consultation with his attorney, a district court on habeas review may rely on [petitioner's] sworn statements and hold him to them.” Padilla v. Keane, 331 F.Supp.2d 209, 217 (S.D.N.Y. 2004); Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“[T]he representations of the [petitioner], his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.”)
Petitioner's claim here turns on his allegation that the plea allocution did not include a full understanding of his plea agreement. However, as discussed above, the record evidence establishes that Petitioner had a full understanding of the bargain at the time he pled guilty. Contrary to Petitioner's argument, there is no evidence that he was ever promised anything other than that he would be sentenced between five and nine years upon pleading guilty. Petitioner openly admitted in court that he understood he could receive such a sentence as a result of his plea. (Dkt. No.7-1 at 4.) Though the Trial Court did not specifically ask Petitioner whether any other promises were made, the ADA confirmed that no other promises were made and Petitioner agreed with the ADA's explanation of the plea bargain. See id. Accordingly, the Court finds Petitioner's statements in open court and the record as a whole contradict Petitioner's claim that he only pleaded guilty because he believed his case would be dismissed.
Finally, Petitioner has not plausibly argued that he is “actually innocent” (meaning factually innocent) of the crime for which he was convicted. The Court recognizes that Petitioner asserts in a conclusory way that he was innocent. (Dkt. No. 10.) Specifically, Petitioner asserts that there was conflicting witness statements regarding the theft and that his wallet being found in the car that was at the scene of the theft could be explained. See id. at 1-2. However, those arguments are belied by his admission in open court that he committed the crime of which he was accused. (Dkt. No. 7-1 at 8); Bousley v. United States, 523 U.S. 614, 622 (1998).
Accordingly, the Court recommends denying Petitioner's application for habeas relief because he failed to exhaust his state remedies. Aparicio, 269 F.3d at 89-90.
III. CERTIFICATE OF APPEALABILITY
28 U.S.C. § 2253(c)(1) provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2553(c)(1). A court may only issue a Certificate of Appealability “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2553(c)(2).
Since Petitioner has failed to make such a showing with regard to any of his claims, the Court recommends declining to issue a Certificate of Appealability in this matter. See Hohn v. United States, 524 U.S. 236, 239-40 (1998) (quotation omitted).
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein the Court hereby
RECOMMENDS that the petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED; and the Court further
RECOMMENDS that no Certificate of Appealability shall be issued with respect to any of Petitioner's claims; and the Court further
ORDERS that the Clerk provide Petitioner with a copy of this Order and Report-Recommendation along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
IT IS SO ORDERED