United States District Court, Southern District of New York
June 18, 1999
JOSE ORRACA, PETITIONER,
HANS G. WALKER, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, DEFENDANT.
The opinion of the court was delivered by: McKENNA, District Judge.
MEMORANDUM AND ORDER
By Report and Recommendation dated May 26, 1999 (the
"Report"), Magistrate Judge Peck recommended that the above
petition for a writ of habeas corpus be denied without
prejudice as a mixed petition. No timely objections having been
filed (and petitioner having, apparently, see his letter to the
Court dated June 14, 1999, commenced a proceeding to raise his
unexhausted claims in state court), and upon consideration of
the Report, this Court accepts the recommendation of the
The petition is dismissed without prejudice as a mixed
REPORT AND RECOMMENDATION
Petitioner Jose Orraca filed this timely habeas corpus
petition on or about April 27, 1998 alleging that: his
manslaughter conviction was against the weight of the evidence;
he was denied a fair trial because of erroneous evidentiary
rulings and prosecutorial misconduct; Brady violations; issues
regarding eyewitness identification; and errors in his
sentencing. (E.g., Pet. ¶ 12(A); Orraca Br. at 1.)
For the reasons set forth below, because Orraca's petition
raises claims that have not been exhausted in State court, I
recommend that Orraca's petition be dismissed
without prejudice as a mixed petition.
On November 17, 1993, Orraca was convicted in Supreme Court,
New York County, of first degree manslaughter, second degree
assault and first degree reckless endangerment, and sentenced
to consecutive sentences totaling 19 1/2 to 39 years
imprisonment. (Pet. ¶¶ 1-4.) See People v. Orraca, 237 A.D.2d 148,
148, 655 N.Y.S.2d 7, 8 (1st Dep't), appeal denied, 90
N Y2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062 (1997). Orraca's
conviction arose from the June 1, 1992 shooting death of Israel
Martinez, and the July 30, 1992 police chase and arrest of
Orraca. (See, e.g., Orraca 1st Dep't Br. at 3.)
Orraca's Direct Appeal
On August 5, 1996, Orraca's counsel filed a 62-page brief to
the First Department, raising the following issues: (1)
insufficiency of the evidence and the verdict was against the
weight of the evidence (Orraca 1st Dep't Br. at 15-25; Orraca
1st Dep't Reply Br. at 12-15); (2) exclusion of defense
evidence (Orraca 1st Dep't Br. at 25-28); (3) prosecutorial
misconduct during summation and related evidentiary errors
(id. at 28-54; Orraca 1st Dep't Reply Br. at 2-12); (4)
identification evidence should have been suppressed (Orraca 1st
Dep't Br. at 57-60; Orraca 1st Dep't Reply Br. at 15-19); (5)
Orraca was erroneously sentenced as a second violent felony
offender (Orraca 1st Dep't Br. at 60-61; Orraca 1st Dep't Reply
Br. at 19); and (6) consecutive sentences were excessive
(Orraca 1st Dep't Br. at 61-62).
The First Department affirmed Orraca's conviction on March
13, 1997, and on June 16, 1997 the Court of Appeals denied
leave to appeal. People v. Orraca, 237 A.D.2d 148, 655 N.Y.S.2d
7 (1st Dep't), appeal denied, 90 N.Y.2d 861, 661 N.Y.S.2d 188,
683 N.E.2d 1062 (1997).
Orraca's N.Y. CPL § 440.10 Motion
On or about June 19, 1998, Orraca filed a CPL § 440.10 motion
in the trial court alleging ineffective assistance of trial
counsel. (Orraca Traverse Aff. ¶¶ 20-21; Affirmation of ADA
Susan Axelrod, dated 11/17/98, ¶ 10.) On or about October 9,
1998, the trial court denied Orraca's CPL § 440.10 motion.
(Orraca Traverse Aff. ¶ 21 & Ex. A: 10/9/98 Order; see Axelrod
Aff. ¶ 10.) On February 26, 1999, the First Department denied
leave to appeal from the trial court's denial of the CPL §
440.10 motion, and the New York Court of Appeals denied leave
to appeal on March 16, 1999. (See Docket No. 8: Orraca 3/17/99
Letter to Court: Enclosures.)*fn1
Orraca's Current Federal Habeas Petition
Orraca's current federal habeas petition is dated April 27,
1998 and was received by the Court's Pro Se Office on April 30,
1998. (See Pet. at pp. 2, 7.) Orraca agrees with the following
summary by the State of his Petition:
In that petition, he sought relief on a number of
grounds: 1) that his conviction for manslaughter
had been obtained in violation of his due process
rights; 2) that the trial court had erred in
permitting the People to introduce evidence of the
lineup identifications; 3) that all of the court's
pretrial rulings were unfair; 4) that the trial
court precluded the introduction of exculpatory
evidence; 5) that the trial court prevented him
from asserting his defense; 6) that the police and
prosecutor had engaged in misconduct
which included the suppression of exculpatory
evidence; 7) and that his sentence was unlawful.
(Axelrod Aff. ¶ 11; accord, Orraca Traverse Aff. ¶ 27; see also
Pet. ¶ 12(A).)
Orraca also filed two memoranda of law in support of his
habeas petition. In the 26-page brief ("Brief A"), Orraca
raised various claims/arguments: (1) Brady violation and
prosecutorial misconduct (Orraca Br. A at 6-7); (2)
prosecutor's failure to gather information and inform Orraca of
benefits given to a prosecution witness (id. at 7-8); (3)
improper pretrial identification procedures including denial of
counsel at the lineup (id. at 8-12); (4) Brady/Rosario
violation (id. at 12-15); (5) prosecutorial misconduct during
summation, with "actual innocence" excusing procedural default
(id. at 16-18); (7) the verdict was against the weight of the
evidence (id. at 18-20); (8) prosecutorial duty to preserve
evidence until requested (without specifying what evidence)
(id. at 20-21); (9) denial of due process in curtailing his
cross-examination of witnesses as to whether drugs were sold in
the store at which the shooting occurred (id. at 21-22); (10)
Rosario violation for the State's failing to preserve the piece
of paper with car license number and the car reported as
speeding away from the shooting (id. at 23-24); and (11)
prosecutorial misconduct and Brady violation for allowing the
car in which Orraca was riding when previously arrested in
January 1992 to be stolen (id. at 25-26). (See Axelrod Aff.
Orraca agrees with the following summary by the State of his
second memorandum of law, Brief B:
In [Brief] B, petitioner again complained that
he had been denied his right to counsel at the
lineups and that the lineups had been unduly
suggestive because none of the fillers were
dark-skinned Hispanic men (see p. 4-8). Petitioner
also complained that the People had not provided
certain items of Rosario material in a timely
fashion and thus prevented petitioner from
establishing a defense (p. 9). Petitioner then
alleged that the People had failed to disclose the
existence of a ballistics report that demonstrated
that the gun used to shoot Israel Martinez was not
the same as the one that had been used to shoot
petitioner (p. 10). Lastly, petitioner claimed that
the court had erred when it refused to sever the
murder counts from the charges arising as a result
of the high speed chase on the day of petitioner's
arrest (p. 11).
(Axelrod Aff. ¶ 13; accord, Orraca Traverse Aff. ¶ 30; see
Orraca Br. B.) In addition, Orraca's Brief B (to which was
attached a 116-page Addendum Statement of Facts) argued that
his conviction was based on insufficient evidence and against
the weight of the evidence. (Orraca Br. B. at 11-12.)
ORRACA'S HABEAS PETITION SHOULD BE DISMISSED WITHOUT PREJUDICE
AS A "MIXED" PETITION THAT FAILED TO EXHAUST STATE COURT
A. Orraca's Petition Contains Both Exhausted and Unexhausted
A determination of whether Orraca exhausted all of his
present claims in State court is made more difficult by the way
Orraca brought his petition — his petition contains only a
single ground (Pet. ¶ 12(A)) that is, however, made up of
several claims set out in the Petition and in two supporting
briefs. Accordingly, the Court must begin by examining each of
Oracca's federal habeas claims to see whether it was raised in
First, Orraca raises a sufficiency/weight of the evidence
claim. (E.g., Orraca Br. A at 18-20; Orraca Br. B at 11.)
Orraca raised this issue on direct appeal. (Orraca 1st Dep't
Br. at 15-25; Orraca 1st Dep't
Reply Br. at 12-15.) Thus, this claim appears to be
Second, Orraca complains about the state court's rulings on
the pretrial identifications. (Pet. ¶ 12(A); Axelrod Aff. ¶
11(2) & Orraca Traverse Aff. ¶ 27; Orraca Br. A at 8-12; Orraca
Br. B at 4-8.) Orraca raised this issue on direct appeal.
(Orraca 1st Dep't Br. at 57-60; Orraca 1st Dep't Reply Br. at
15-19.) Thus, this claim appears to be exhausted. (See fn. 2
Third, Orraca alleges various Brady (or its state law
counterpart, Rosario) violations. (See Pet. ¶ 12(A); Orraca Br.
A at 6-8, 12-15, 20-21, 23-26; Orraca Br. B at 9-10.)*fn3
Orraca did not raise any Brady/Rosario claims on direct state
appeal or in his CPL § 440.10 motion. (See pages 2-3 above; see
also Axelrod Aff. ¶ 14.) According to the State, Orraca may
still raise his Brady claims in a second CPL § 440.10 motion.
(See Axelrod Aff. ¶ 14; State Br. at 4-6.) The claim,
therefore, is not exhausted.
Fourth, Orraca claims that the trial court erred in admitting
evidence of prior criminal conduct or "bad acts" by Orraca.
(Orraca Br. A at 16-18.) Orraca raised this claim on direct
appeal (Orraca 1st Dep't Br. at 29-34, 37-44) and thus it
appears to be exhausted. (See fn. 2 above.)
Fifth, Orraca claims that the trial court erred in limiting
his cross-examination of witnesses and presentation of defense
evidence. (Orraca Br. A at 21-22.) Orraca raised this claim on
direct appeal (Orraca 1st Dep't Br. at 25-28), and thus it
appears to be exhausted. (See fn. 2 above.)
Sixth, Orraca argues that the trial court erred in refusing
to sever the different counts of the indictment. (Orraca Br. B
at 11.) Orraca did not raise this claim before the State
courts, and thus the claim is not exhausted.
Seventh, Orraca challenges his sentence as a predicate
offender. (Pet. ¶ 12(A), last sentence.) Orraca raised this
claim on direct appeal (Orraca 1st Dep't Br. at 60-61), but
only on state statutory grounds, and not federal constitutional
grounds. The issue, therefore, is not exhausted. See, e.g.,
Levine v. Commissioner of Correctional Servs., 44 F.3d 121,
125-26 (2d Cir. 1995) (constitutional challenge to sentencing
dismissed as unexhausted where only state statutory challenge
pressed on direct appeal in New York courts); Petrucelli v.
Coombe, 735 F.2d 684, 687-90 (2d Cir. 1984); Wilson v. Fogg,
571 F.2d 91, 92 (2d Cir. 1978) ("[w]here a petitioner has
raised his claim in the state court solely as a violation of a
state statute and not on the basis of an invasion of his
federal constitutional rights, dismissal by the federal court
is mandated" as the claim is unexhausted); Colon v. Johnson,
19 F. Supp.2d 112,
117-18 (S.D.N.Y. 1998) (claim that was "framed under New York
State law" rather than as a federal constitutional claim is
unexhausted); Brown v. Miller, 97 Civ. 1874, 1998 WL 91081 at
*2 (S.D.N.Y. March 3, 1998) (Sotomayor, D.J.); Francis v.
Stone, 995 F. Supp. 368, 378-79 (S.D.N.Y. 1998) (claim is
unexhausted where it was "framed solely as a contention that
the state had failed to comply with CPL § 330.20" on direct
appeal); Gibriano v. Attorney General of New York, 965 F. Supp. 489,
491-92 (S.D.N.Y. 1997) (Sprizzo, D.J. & Peck, M.J.)
(speedy trial claim was unexhausted where it was raised in
state court only on state statutory grounds).
Finally, several sentences in the petition are so vague that
the Court cannot determine what claims they are meant to raise,
if any, and whether they have been exhausted: (a) reference to
denial of a fair trial in violation of due process and equal
protection rights; (b) "police and prosecutorial misconduct
denied petitioner of his right to counsel at crucial points.
. . ." (Pet. ¶ 12(A).)*fn4
In short, Orraca clearly has not exhausted his
Brady, severance and sentencing claims.
B. Prior to the Antiterrorism and Effective Death Penalty
Act, the Court was Required to Dismiss "Mixed"
Petitions Containing Both Exhausted and Unexhausted
This section discusses the law as to "mixed" petitions in
effect prior to the April 24, 1996 enactment of the
Antiterrorism and Effective Death Penalty Act ("AEDPA").
A federal court may not consider the merits of a state
prisoner's petition for a writ of habeas corpus until the
petitioner has exhausted the state remedies available to him.
28 U.S.C. § 2254(b).*fn5 While preamendment Section 2254 did
not directly address the problem of "mixed" habeas petitions,
that is, those containing both exhausted and unexhausted
claims, the Supreme Court adopted a rule of total exhaustion in
Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379
(1982). The Supreme Court held:
Because a rule requiring exhaustion of all claims
furthers the purposes underlying the habeas
statute, we hold that a district court must
dismiss such "mixed petitions," leaving the
prisoner with the choice of returning to state
court to exhaust his claims or of amending or
resubmitting the habeas petition to present only
exhausted claims to the district court.
Id. at 510, 102 S.Ct. at 1199.*fn6
The Supreme Court explained
that the complete "exhaustion doctrine is principally designed
to protect the state courts' role in the enforcement of federal
law and prevent disruption of state judicial proceedings." Rose
v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203. "A rigorously
enforced total exhaustion rule will encourage state prisoners
to seek full relief first from the state courts, thus giving
those courts the first
opportunity to review all claims of constitutional error."
Id. at 518-19, 102 S.Ct. at 1203. The Supreme Court further
noted that the total exhaustion rule will not impair the
prisoner's interest in obtaining speedy federal relief "since
he can always amend the petition to delete the unexhausted
claims." Id. at 520, 102 S.Ct. at 1204.*fn7
The Second Circuit held, prior to the AEDPA, that "[p]assing
on the merits of claims in a habeas petition containing
unexhausted claims runs counter to Rose v. Lundy" Levine v.
Commissioner of Correctional Servs., 44 F.3d 121, 125 (2d Cir.
1995); see, e.g., Morris v. Reynolds, 48 F. Supp.2d 379, 380
(S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); Cowans v. Artuz,
14 F. Supp.2d 503, 505 (S.D.N.Y. 1998) (Preska, D.J. & Peck, M.J.);
Espinal v. Walker, 97 Civ. 3187, 1998 WL 151273 at *3 (S.D.N Y
March 27, 1998) (Patterson, D.J. & Peck, M.J.); Johnson v.
Scully, 967 F. Supp. 113, 115 (S.D.N.Y. 1997) (Rakoff, D.J. &
Peck, M.J.); Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at
*2-3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.);
Gibriano v. Attorney General, 965 F. Supp. 489, 491 (S.D.N Y
1997) (Sprizzo, D.J. & Peck, M.J.); Walker v. Miller,
959 F. Supp. 638, 641 (S.D.N.Y. 1997) (McKenna, D.J. & Peck, M.J.);
Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May
31, 1996) (Batts, D.J. & Peck, M.J.); Ehinger v. Miller,
928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. & Peck, M.J.).
C. Effect of the AEDPA
The AEDPA permits the Court to deny on the merits habeas
petitions containing unexhausted claims. Thus, 28 U.S.C. § 2254
now states, in relevant part:
(b)(1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that —
(A) the applicant has exhausted the remedies
available in the courts of the State;
(2) An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies
available in the courts of the State.
28 U.S.C. § 2254(b)(1)-(2) (1998).
Section 2254(b) merely gives the Court discretion to deny
unexhausted petitions on the merits; it does not require the
Court to determine unexhausted claims. See
28 U.S.C. § 2254(b)(2) (1998).
Section 2254(b)(2), however, "does not provide a standard for
determining when a court should dismiss a petition on the
merits rather than requiring complete exhaustion." Lambert v.
Blackwell, 134 F.3d 506, 516 (3d Cir. 1997); accord, e.g.,
Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied,
___ U.S. ___, 118 S.Ct. 126, 139 L.Ed.2d 77 (1997); Morris v.
Reynolds, 48 F.supp.2d 379, 381 (S.D.N.Y. 1999) (Baer, D.J. &
Peck, M.J.); Rivera v. New York State Parole Div., 98 Civ.
7555, 1999 WL 246752 at *3 (S.D.N.Y. April 1, 1999) (Rakoff,
D.J. & Peck, M.J.); Redd v. Quinones, 98 Civ. 2604, 1998 WL
702334 at *3 n. 3 (S.D.N.Y. Oct. 7, 1998); Lum v. Penarosa,
2 F. Supp.2d 1291, 1292-93 (D.Haw. 1998); Cowans v. Artuz,
14 F. Supp.2d 503, 506 (S.D.N.Y. 1998) (Preska, D.J. & Peck, M.J.);
Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *3
(S.D.N.Y. May 19, 1998) (Cote, D.J. & Peck, M.J.); Gaylor v.
Harrelson, 962 F. Supp. 1498, 1499 (N.D.Ga. April 3, 1997).
Neither the Supreme Court nor the Second Circuit has
established what standard a district court should use to
determine when to dismiss a petition on the merits rather than
requiring complete exhaustion.
The Court agrees with the decision in Duarte v. Hershberger,
947 F. Supp. 146 (D.N.J. 1996), where the court explained:
Pursuant to the 1996 AEDPA amendments, however,
the Court may exercise discretion to hear and deny
petitioner's non-exhausted claim; the total
exhaustion rule is no longer binding. See 28 U.S.C. § 2254
[sic; § 2254(b)]. The Court, however,
declines to exercise the discretion to hear and
dismiss petitioner's application in this case.
By refusing to exercise the discretion provided
under section 2254 [sic; § 2254(b)], this Court
endorses the rationale of the "total exhaustion
rule" and continues to furnish state appellate
courts the initial opportunity to correct trial
court decisions. Moreover, the refusal to exercise
discretion here does not conflict with the intent
of Congress. In fact, enforcing the "total
exhaustion rule" in this context will "encourage
habeas petitioners to exhaust all of their claims
in state court and to present the federal court
with a single habeas petition." Rose, 455 U.S. at
520, 102 S.Ct. at 1204. This will serve to avoid
piecemeal litigation and eventually decrease the
burden on federal courts. Id.
Finally, the Court notes that applying the
"total exhaustion rule" in cases such as this one
does not unduly prejudice petitioners. Those who
misunderstand the requirement and submit
unacceptable "mixed petitions" may resubmit their
application pending either the removal of the
unexhausted claim, or exhaustion of the offending
claim at the state level.
Duarte v. Hershberger, 947 F. Supp. at 150; accord, e.g., Morris
v. Reynolds, 1999 WL 289205 at *4; Rivera v. New York State
Parole Div., 1999 WL 246752 at *3-4; Cowans v. Artuz, 14
F. Supp.2d at 506; Fennell v. Artuz, 14 F. Supp.2d 374, 379
(S.D.N.Y. 1998) (Preska, D.J. & Peck, M.J.); Benitez v.
Senkowski, 1998 WL 265245 at *3-4; Espinal v. Walker, 97 Civ.
3187, 1998 WL 151273 at *4 (S.D.N.Y. March 27, 1998)
(Patterson, D.J. & Peck, M.J.); Diaz v. Coombe, 1997 WL 529608
at *4; Fluellen v. Walker, 975 F. Supp. 565, 568 (S.D.N.Y. 1997)
(Wood, D.J. & Peck, M.J.); Johnson v. Scully, 967 F. Supp. at
116; Walker v. Miller, 959 F. Supp. at 642; see also
Dafnos v. Artuz, No. 97 CV 1562, 1998 WL 801775 at *2 (E.D.N Y
Nov. 16, 1998). Duarte does not provide a standard, but makes
clear that even under the AEDPA, the federal courts usually
should defer to the state courts on unexhausted habeas claims.
The Court notes that several district judges in this Circuit
have expressed the test as whether the unexhausted claim is
patently frivolous." E.g., Turner v. Senkowski, No. 97-CV-653,
1998 WL 912011 at *4 (W.D.N.Y. Nov. 23, 1998); Young-blood v.
Greiner, 97 Civ. 3289, 1998 WL 720681 at *6 (S.D.N.Y. Oct. 13,
1998); Colon v. Johnson, 19 F. Supp.2d 112, 120, 122 (S.D.N Y
1998); Hogan v. Ward, 998 F. Supp. 290, 293 (W.D.N.Y. 1998);
Edkin v. Travis, 969 F. Supp. 139, 142 n. 1 (W.D.N.Y. 1997);
Rodriguez v. Miller, 96 Civ. 4723, 1997 WL 599388 at *3
(S.D.N.Y. Sept. 29, 1997); Ojeda v. Artuz, 96 Civ.5900, 1997 WL
283398 at *3 n. 5 (S.D.N.Y. May 29, 1997); see also, e.g.,
Terrence v. Senkowski, 97 Civ. 3242, 1999 WL 301690 at *5 n. 4
(S.D.N.Y. May 12, 1999) (exercising discretion to dismiss
unexhausted claims under § 2254(b) where "all of petitioner's
claims lack merit," citing Youngblood's "patently frivolous"
language); Cuadrado v. Stinson, 992 F. Supp. 685, 687 (S.D.N Y
1998) (it is perhaps appropriate for court to decide
unexhausted claim on merits "where a petition was `patently
frivolous,' . . . but this is not such a case. The Court
believes that it is still the best policy to `allow[ ] the
State an initial opportunity to pass upon and correct alleged
violations of prisoners' federal rights.'"); Brown v. Miller,
97 Civ. 1874, 1998 WL 91081 at *2 (S.D.N.Y. March 3, 1998)
(Sotomayor, D.J.) (same).*fn8
The Court here need not decide whether the "patently
frivolous" or some other standard is appropriate to use to
determine when to consider the merits of unexhausted claims
pursuant to § 2254(b).*fn9 See, e.g., Morris v. Reynolds, 1999
WL 289205 at *5; Rivera v. New York State Parole Div., 1999 WL
246752 at *4; Cowans v. Artuz, 14 F. Supp.2d at 507; Fennell v.
Artuz, 14 F. Supp.2d at 379; Benitez v. Senkowski, 1998 WL
265245 at *4. Suffice it to say that in this case, where three
of Orraca's claims have not been addressed by the State courts
and where the parties will need to make a record as to some of
the claims, the Court believes it appropriate to decline to
exercise its discretion to decide Orraca's petition on the
merits. This best comports with the rationale of Rose v. Lundy
and Duarte v. Hershberger, discussed above.
The Court notes that petitioner Orraca should not be heard to
complain about the Court's decision as to his petition, since
under the AEDPA, this Court can reach the merits as to
unexhausted claims only if it denies them. See
28 U.S.C. § 2254(b)(2) (1998) ("An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
For the reasons set forth above, the Court should dismiss
Orraca's federal habeas
petition without prejudice, because he has failed to properly
exhaust several of his claims in state court, unless Orraca
withdraws his unexhausted claims (see fn. 7 above).*fn11
FILING OF OBJECTIONS TO THIS REPORT AND
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 the
Court, with courtesy copies delivered to the chambers of the
Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, and
to my chambers, 500 Pearl Street, Room 1370. Any requests for
an extension of time for filing objections must be directed to
Judge McKenna. Failure to file objections will result in a
waiver of those objections for purposes of appeal. Thomas v.
Arn 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL
— CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.
1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38
(1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992);
Small v. Secretary of Health & Human Servs., 892 F.2d 15 (2d
Cir. 1989); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d. Cir.
1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
May 26, 1999.