Opinion
03 Civ. 3867 (GBD) (KNF).
March 17, 2008
REPORT AND RECOMMENDATION
INTRODUCTION
Larry Ross ("Ross"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner alleged his confinement by New York State is unlawful because: (1) his trial counsel rendered ineffective assistance to him when he failed to file a notice of alibi defense and prepare for trial adequately; (2) the introduction into evidence of a pre-arrest, show-up identification by "a crack addict who only briefly glimpsed the perpetrators" violated his due process right; (3) the prosecutor's concealment of a cooperation agreement with a witness, Yolanda Nazario ("Nazario"), violated his due process right; (4) the receipt into evidence of the property seized from him violated his Fourth and Fourteenth Amendments rights; (5) the jury's verdict was against the weight of the evidence; (6) an in-court identification of him, as a perpetrator of the charged crimes, "by a crack addict who only briefly glimpsed the perpetrators" violated his due process right; and (7) police personnel committed misconduct, in violation of his Fourth Amendment rights. The respondent opposed the petition contending: (a) the petitioner received effective assistance from his counsel; (b) the state court's finding that the show-up identification was proper was neither contrary to nor involved an unreasonable application of clearly established federal law; (c) the state court's finding that no cooperation agreement existed between the prosecution and Nazario was neither contrary to nor involved an unreasonable application of clearly established federal law; (d) the petitioner's Fourth Amendment claim is not cognizable on federal habeas review; (e) a claim that the petitioner's verdict was against the weight of the evidence is not cognizable on federal habeas review; (f) a claim that the in-court identification of the petitioner, as a perpetrator of the charged crimes, violated Ross' due process right, is barred by an independent and adequate state-law procedural ground; and (g) a claim of police misconduct, in violation of the petitioner's Fourth Amendment right, is not cognizable on federal habeas review.
On January 18, 2007, the petitioner made an application to the court for an order staying the adjudication of his petition, while he returns to the state court to exhaust a claim of ineffective assistance of appellate counsel. On February 15, 2007, your Honor denied the application, because the petitioner failed to show good cause for staying adjudication of the petition while he exhausts a claim that was not raised timely in his petition.
On October 17, 2007, after exhausting his ineffective assistance of appellate counsel claim in the state courts, the petitioner made an application to the court seeking leave to amend his petition, pursuant to Fed.R.Civ.P. 15(c), to add a claim of ineffective assistance of appellate counsel. The respondent did not oppose the petitioner's application for leave to amend the petition. The petitioner's application for leave to amend the petition and his petition are addressed below.
BACKGROUND
In the early morning hours of December 6, 1993, Rosa Guzman ("R. Guzman"), her husband Sylverio Guzman ("S. Guzman"), Stephen Cody ("Cody"), Nazario, persons known as "Rosuara ("Tata")," "Blanca" and "Donna Reyes ("Dee")," and Jules Vanommeren were in a second-floor apartment of a building on Walton Avenue, Bronx County, where crack cocaine and sex were sold. Someone knocked on the apartment door and asked for R. Guzman. When R. Guzman opened the door, two men told her the apartment was recommended as a place where they could "have fun with girls." One of the men, Dennis Gonzales ("Gonzales"), went to the Guzmans' bedroom with Nazario. There, he produced a gun, bound her with duct tape and asked her "where the stuff was." Since Nazario did not know "where the stuff was," Gonzales ordered her to call R. Guzman to the bedroom. When R. Guzman arrived, Gonzales displayed a gun, directed her not to scream, took her jewelry, money and some crack vials, and bound her with duct tape. Thereafter, Gonzales left the bedroom.
In the meantime, in the living room, the other man, petitioner Ross, pointed a snubnose revolver at Cody and ordered everyone in the living room to lay down on the floor. Gonzales and Ross tied up everyone and removed money and crack vials from Cody's pockets. They also took certain items and money from S. Guzman, after which they took him to the bedroom where R. Guzman and Nazario were located, threatening to fire the revolver if they did not receive "everything." Upon learning from R. Guzman that a bag of watches was in the closet, the two men took it.
At that time, Richard Lewis ("Lewis") rang the door bell and Gonzales and Ross let him inside the apartment. Cody observed that Lewis was "put up against the wall and brought to the floor." Cody heard Lewis argue with his assailants, who hit him with a gun. Thereafter, Cody heard two gun shots and observed Ross holding a gun in his hand and standing over Lewis, who was on the floor.
S. Guzman and Nazario were able to free themselves and leave the apartment through the fire escape. Nazario ran up the fire escape and asked the occupants of an apartment on a higher floor to call the police. S. Guzman jumped down from the fire escape, injuring his foot. At approximately 2:40 a.m., police officers Michael Delbene ("Delbene") and Gregory Manning ("Manning") saw him limping and heard him scream for help. S. Guzman was able to explain that two men with a gun were in his apartment. Delbene made a radio transmission describing the situation. Police officers Thomas Reilley ("Reilley") and David Powers ("Powers") arrived on the scene to help. The officers went to the Guzmans' apartment building. As they approached the front courtyard of the building, Reilley and Powers observed Gonzales and Ross descending the stairwell. Shortly thereafter, Gonzales was apprehended. Manning observed Ross climb the apartment building's fire escape and followed him, but Ross leaped from the fire escape onto the street and ran away. Manning communicated this to other officers via radio.
Police Officer Robert Hanratty ("Hanratty") also responded to Delbene's radio transmission. When he arrived at the location, he observed Ross climb down the fire escape followed by Manning. When Ross leaped from the fire escape and started running away, Hanratty chased him. During the chase, Hanratty saw Ross discard a firearm in an alley, before losing site of him.
Police Officer Anthony Agnelli ("Agnelli") was operating his police vehicle, in the vicinity of Guzmans' apartment building, when he responded to Delbene's radio transmission. Agnelli saw Ross fleeing the scene, after he jumped over a wall and onto the street. Agnelli pursued Ross and was able to reach and grab him. With the aid of other police officers, Ross was subdued and taken into custody. A search of Ross revealed that he possessed jewelry, vials of crack cocaine and a wallet, containing money and S. Guzman's identification. After Ross was apprehended, Hanratty returned to the alley and retrieved the gun Ross had discarded. Hanratty noticed that two of the gun's chambers contained spent shell casings and that the remaining chambers contained live rounds.
The police gathered everyone from the apartment in the hallway. Upon learning that her husband was hurt, R. Guzman ran down the hallway stairs, where she saw and identified Ross as one of the perpetrators. Later that evening, R. Guzman identified the property taken from her, and she and Nazario identified Ross, after viewing two police-conducted line-ups. Lewis was admitted to a hospital, where he expired ten days later, as a result of a gunshot to the head he received.
Ross was indicted by a Bronx County grand jury, and proceeded to trial before a petit jury in the New York State Supreme Court, Bronx County. During the trial, Cody identified Ross as one of the perpetrators of the robbery that took place on December 6, 1993. On February 29, 1996, the jury returned a verdict convicting Ross for: second-degree murder; first-degree robbery (three counts); second degree criminal possession of a weapon; and seventh-degree criminal possession of a controlled substance. Thereafter, Ross was sentenced, as a persistent felony offender, to concurrent and indeterminate terms of imprisonment as follows: (1) twenty-five years to life, for the second-degree murder conviction; (2) three terms of ten years to life, for the first-degree robbery convictions; and (3) eight years to life, for the second-degree possession of a weapon conviction. Ross was also sentenced, as a persistent felony offender, to a concurrent determinate term of imprisonment of one year, for the seventh-degree criminal possession of a controlled substance conviction.
In April 1998, Ross made a motion, in the New York State Supreme Court, Bronx County, to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10 and a recusal motion to bar the judge who presided over his trial from determining his CPL § 440.10 motion. In his motion to vacate the judgment, Ross argued: (1) his right to a fair trial was violated, because the prosecutor failed to disclose an agreement existed with Nazario, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and (2) police misconduct, during the events leading up to and including his arrest, was so reprehensible as to warrant reversal. On October 28, 1998, the court denied Ross' motions, finding that: (i) recusal of the trial judge from deciding Ross' CPL § 440.10 motion was not warranted; (ii) Nazario was questioned by Ross' counsel and the trial judge about the existence of any agreement through which she would receive leniency, with respect to her outstanding charges, in exchange for testifying at Ross' trial and "[a]ny purported failure by the People to reveal the actual existence of such an agreement would not under these circumstances have given rise to a reasonable possibility that had such an agreement been revealed, the verdict would have been different;" and (iii) a claim of police misconduct was barred, because it was "based upon arguments which arise from an examination of the trial records and is readily available for review on appeal."
On November 6, 1998, acting pro se, Ross made an application in the New York State Supreme Court, Appellate Division, First Department, for a certificate granting leave to appeal the denial of his CPL § 440.10 motion. On March 2, 1999, the Appellate Division issued a certificate granting Ross' application and directing that, in the event Ross had an existing direct appeal from the judgment of conviction, the appeal of the CPL § 440.10 motion be consolidated with the direct appeal.
On November 10, 1998, Ross made an application for reargument of his CPL § 440.10 motion in the New York State Supreme Court, Bronx County. On May 25, 1999, the court denied his application.
On December 29, 1999, Ross made an application to the Appellate Division for an order severing the appeal of the denial of his CPL § 440.10 motion from his direct appeal or, in the alternative, relieving his appellate counsel. On January 25, 2000, the Appellate Division denied Ross' application.
On August 7, 2000, Ross filed his consolidated direct appeal and his appeal from the denial of his CPL § 440.10 motion in the Appellate Division. In that consolidated appeal Ross raised the following claims: (1) the prosecutor's concealment of an agreement to provide leniency to a witness denied him due process; (2) trial evidence of the identification of him, made "by a crack addict who only briefly glimpsed the perpetrators" violated his due process right; (3) an in-court identification of him, as a perpetrator of the charged crimes, "by a second crack addict who also briefly glimpsed the perpetrators" violated his right to a fair trial; (4) the receipt into evidence of the property seized from him violated his Fourth Amendment rights; (5) the verdict was against the weight of the evidence; (6) police misconduct violated his Fourth Amendment rights; and (7) his trial counsel rendered ineffective assistance to him. Ross also filed a supplemental pro se brief claiming that: (8) the prosecutor violated his Sixth and Fourteenth Amendments rights by failing to disclose an agreement with one of the witnesses; and (9) his trial counsel rendered ineffective assistance to him by failing to: (i) file an alibi defense notice; (ii) impeach R. Guzman with a prior inconsistent statement; (iii) request a missing witness charge; (iv) impeach Delbene with a prior inconsistent statement; (v) introduce S. Guzman's statement to his doctors that he speaks Spanish only; and (vi) use the fact that he was charged initially with possessing "a 38 Colt revolver, but in open court he was accused of having a 9 mm handgun."
On December 12, 2000, acting pro se, Ross made a second application, to the New York State Supreme Court, Bronx County, pursuant to CPL § 440.10, to vacate the judgment of conviction. In that application, Ross claimed that his trial counsel rendered ineffective assistance to him based on grounds (i) to (v), raised in his supplemental pro se brief to the Appellate Division. On May 24, 2001, the New York State Supreme Court, Bronx County, denied Ross' second CPL § 440.10 motion because it was procedurally barred, pursuant to CPL §§ 440.10(2)(b), (3)(c), and (4)(b), and also lacked merit.
On September 6, 2001, Ross sought leave to appeal from the denial of his second CPL § 440.10 motion to the Appellate Division. On November 27, 2001, the Appellate Division affirmed Ross' conviction and the denial of his first CPL § 440.10 motion.See People v. Ross, 288 A.D.2d 138, 733 N.Y.S.2d 177 (App.Div. 1st Dep't 2001). The Appellate Division determined that Ross': (1) "motion to suppress the showup, lineup and in-court identifications was properly denied" and the show-up and lineup identifications were not unduly suggestive; (2) "challenge to the spontaneous in-court identification [of him,] by a witness who had not been involved in any out-of-court identification procedures[,]" was not preserved for appellate review and, even if it were to be reviewed, had no merit; (3) "various challenges to the reliability of the identification evidence go to the weight to be afforded such evidence by the jury and not to its admissibility;" (4) motion to suppress physical evidence was denied properly and "[s]ince the police properly chased [Ross] based on the information in their possession coupled with [his] flight, his abandonment of a gun was not the result of unlawful police conduct;" and (5) motion to vacate his conviction was denied properly because Ross failed to offer evidence that an agreement existed between the prosecutor and the witness concerning lenient treatment of her charges and the record did not support Ross' "speculative assertions." The Appellate Division also concluded that "[t]he physical evidence found on [Ross'] person was properly recovered incident to a lawful arrest pursuant to the 'fellow officer' rule." In addition, the Appellate Division "considered and rejected" Ross' remaining claims, including those contained in his pro se supplemental brief.
In letters dated December 18, 2001 and January 22, 2002, Ross' appellate counsel and Ross, respectively, applied for leave to appeal from the Appellate Division's affirmance to the New York Court of Appeals. On May 14, 2002, the New York Court of Appeals denied the applications. See People v. Ross, 98 N.Y.2d 655, 745 N.Y.S.2d 514 (2002). The instant petition followed.
DISCUSSION Leave to Amend the Petition: Relation Back
On May 14, 2002, the New York Court of Appeals denied Ross' application for leave to appeal the affirmance of his conviction. His conviction became final on August 12, 2002, when the time to seek a writ of certiorari from the United States Supreme Court expired. See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). Pursuant to the one-year statute of limitations governing federal habeas corpus petitions by persons in state custody, set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Ross had until August 12, 2003, to file his petition for federal habeas corpus relief. See 28 U.S.C. § 2244(d)(2). He filed his petition timely, on May 6, 2003. However, on October 15, 2007, after the one-year statute of limitations had expired, Ross filed his application for leave to amend his petition, by delivering it to prison officials, see Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001).
A habeas corpus petition may be amended, pursuant to Fed.R.Civ.P. 15. See 28 U.S.C. § 2242; Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts;Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001). After a responsive pleading has been served, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2).
Fed.R.Civ.P. 15(c) "governs motions to amend where (as here, given the AEDPA) the statute of limitations for the underlying cause of action has already run." Fama v. Comm'r of Corr. Serv., 235 F.3d 804, 815 (2d Cir. 2000). In that circumstance, an amendment is timely if it relates back to the original pleading.See Ching v. United States, 298 F.3d 174, 181 (2d Cir. 2002). Fed.R.Civ.P. 15(c) provides, in pertinent part: "An amendment to a pleading relates back to the date of the original pleading when: . . . (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading."
"An amended habeas petition does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650, 125 S. Ct. 2562, 2566 (2005). An amendment relates back to the original petition "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts." Id., at 664, 125 S. Ct. at 2574-75.
In his amended petition, Ross proposes to add a claim that his appellate counsel rendered ineffective assistance to him when he failed to: (i) raise a claim respecting trial counsel's failure to "make use of the contradictions in the People's evidence upon major point at the suppression hearing;" (ii) discuss with him and advise him "of the issues raised and those that could have been raised;" and (iii) file an appellate brief timely. Additionally, Ross asserts, his right to effective assistance of appellate counsel was violated when the Appellate Division denied his motion "for reassignment of counsel." In his original petition, Ross raised a claim of ineffective assistance of trial counsel based on trial counsel's failure to: (a) file a notice of alibi defense; (b) request a missing witness jury instruction; (c) impeach Delbene with his statement to Ross' "Parole Officer concerning some information that Officer failed to report;" (d) "introduce Mr. Guzman's statement to his doctors in his Medical Records that he speaks only Spanish, eliminating his chances of communicating with Officer Delbene;" and (e) use "the fact that [Ross] was initially charged with possession of a 38 Colt Revolver, but in open court he was accused of having a 9 mm handgun."
Ross' claim of ineffective assistance of appellate counsel, premised on his appellate counsel's failure to raise issues concerning Ross' trial counsel's "failure to make use of the contradictions in the People's evidence upon major point at the suppression hearing" is not tied to a common core of operative facts on which his claims of ineffective assistance of trial counsel are based because they are separate and apart in both time and type from the allegations raised in the original petition. None of the grounds underlying Ross' ineffective assistance of trial counsel claim, in the original petition, are related to the suppression hearing. Ross' claims of ineffective assistance of appellate counsel, based on that attorney's: (i) failure to discuss with him and advise him of the issues raised and those that could have been raised; and (ii) delay in filing the appellate brief "in excess of 4 1/2 years" after his conviction, are, on their face, entirely separate in time and type from all the claims in the original petition. Similarly, Ross' claim that, the Appellate Division violated his right to effective assistance from appellate counsel when it "denied [his] motion for reassignment of counsel," is separate in time and type from all the claims in the original petition, notwithstanding the fact that criminal defendants who require counsel to be appointed for them do not have a constitutional right to counsel of choice,see United States v. Gonzales-Lopez, 548 U.S. 140, _, 126 S. Ct. 2557, 2565 (2006). Therefore, Ross' claims, concerning the ineffective assistance of appellate counsel, do not relate back to his original petition. Consequently, Ross' leave to amend his petition, to add these claims, is not warranted.
Petition
Procedurally Defaulted 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.
The respondent contends, at the time of Ross' trial, "the proposition that failure to object to an in-court identification would bar appellate review of that issue had a fair and substantial basis in New York law." Moreover, the respondent maintains, Ross failed to establish that his is an exceptional case that would render the state-procedural rule inadequate.
The Court agrees with the respondent. Ross' claim of a due process right violation, resulting from an in-court identification of him, as a perpetrator of the charged crimes, by a witness, is procedurally barred because the record demonstrates that the Appellate Division relied on an independent and adequate state ground-the failure to make a contemporaneous objection-when it found Ross' claim unpreserved for appellate review. 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.
Ross failed to identify an objective factor external to the defense that impeded his counsel's efforts to comply with New York's procedural rule. While Ross claimed his trial counsel rendered ineffective assistance to him, he never grounded that claim on the failure to make a contemporaneous objection to the in-court identification of him, as a perpetrator of the charged crimes, by a witness. Therefore, his ineffective assistance of trial counsel claim cannot serve as a cause for a procedural default, because it was never presented to the state court as an independent claim. Moreover, Ross failed to present evidence to establish that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. Therefore, the Court cannot review Ross' procedurally-barred claim of a due process right violation, based on the in-court identification of him, as a perpetrator of a charged crimes, by a witness.
Claims Adjudicated on the Merits
Pursuant to AEDPA, a federal court may grant a writ of habeas corpus where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition only if the state court's adjudication resulted in a decision that: (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. See 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. 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).
All Ross' claims, except the due process right violation claim, based on the in-court identification of him, as a perpetrator of the charged crimes, by a witness, have been adjudicated on the merits in the state courts. In support of his habeas corpus petition, Ross repeats the same arguments he presented to the Appellate Division. However, Ross failed to identify how the state-court decision on his claims was either contrary to or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court. Furthermore, Ross failed to show that the state court's decision on his claims is grounded on an unreasonable determination of the facts. Additionally, Ross did not present any evidence to the Court that rebuts the presumption of correctness accorded to the factual findings made in the state courts respecting his claims. See 28 U.S.C. § 2254(e)(1). Therefore, the Court finds that Ross failed to meet the burden imposed on him by the relevant statute. Consequently, Ross is not entitled to habeas corpus relief based on all his claims that have been adjudicated on the merits by the state courts.
RECOMMENDATION
For the foregoing reasons, I recommend that the petition, (Docket Entry No. 1), 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 Pearl 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. Revnoso, 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).