United States District Court, S.D. New York
August 4, 2005.
CURTIS CRAYTON, Petitioner,
SCOTT CARLSEN, Superintendent, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
Before the Court is the petition of Curtis Crayton ("Crayton")
for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254.
Crayton alleges that his confinement by the state of New York is
unlawful because his right to a fair trial was violated when: (1)
the trial court participated excessively in the examinations of
Crayton and of prosecution witnesses, with the goals of
rehabilitating the testimony of prosecution witnesses and casting
doubt on the credibility of Crayton's testimony; (2) during its
closing statement to the jury at Crayton's trial, the prosecution
made a factual statement that was not supported by the evidence;
and (3) the trial court did not instruct the jury properly about
The respondent opposes the petitioner's application for habeas
corpus relief on the grounds that all of the petitioner's claims
are procedurally forfeited and lack merit.
Crayton was arrested on August 9, 1998, as part of a "buy and
bust" operation conducted by undercover police officers in the
vicinity of 129th Street and Fifth Avenue in Manhattan. An undercover officer approached Carmen Hernandez ("Hernandez") and
asked where he could find some "nicks," referring to five-dollar
amounts of crack cocaine. Hernandez directed the officer to James
Breddock ("Breddock"), who was standing astride a bicycle on the
corner of 132nd Street and Fifth Avenue. According to the
officer, Crayton was also standing astride a bicycle, next to
Breddock. The officer testified that Crayton gave the officer two
purple-topped vials of crack cocaine in exchange for ten dollars.
Shortly thereafter, police officers placed Crayton under arrest.
At the time of his arrest, Crayton was in possession of five
purple-topped vials of crack cocaine.
A New York County grand jury returned an indictment charging
Crayton with: one count of criminal sale of a controlled
substance in the third degree (N.Y. Penal Law § 220.39) and one
count of criminal possession of a controlled substance in the
third degree (N.Y. Penal Law § 220.16).
Crayton proceeded to trial before a jury in New York State
Supreme Court, New York County. Crayton conceded that he was in
possession of five vials of crack cocaine at the time of his
arrest. He claimed that they were for his personal use and that
he was not involved in the sale of illegal drugs. Crayton
maintained that Breddock, not Crayton, sold the two vials of
crack cocaine to the undercover officer. In his trial testimony,
the undercover officer contradicted Crayton's account of the
sale, stating that "there is no doubt in my mind" that Crayton
provided him with two vials of crack cocaine.
During the trial, in addition to the undercover officer, other
police officers involved in the buy and bust operation testified.
At one point, one of the officers gave testimony concerning the
sequence of arrests of Crayton and another that might not have
been consistent with the information that the officer recorded in his Daily Activity
Report ("DAR") on the day Clayton was arrested. In particular,
the officer testified that he arrested Hernandez before he
arrested Crayton and Breddock, while the DAR indicated that
Crayton and Breddock were arrested first. During the officer's
re-direct examination, the following exchange occurred:
[PROSECUTION]: Officer, when was Miss Hernandez
arrested, before or after Mr. Breddock and Mr.
[THE WITNESS]: To the best of my recollection, I
personally apprehended Carmen Hernandez. The way I
see it, assuming I grabbed her, in my mind she was
the first one grabbed. So in my mind, she was the
first one grabbed. In fact, the rest of the team may
have just prior moved in on the other subjects.
Because of my recollection, I'm assuming
THE COURT: But you were the first guy there when they
apprehended the other two guys, Crayton and Breddock?
THE WITNESS: No.
THE COURT: So that could have preceded
THE WITNESS: Correct.
THE COURT: Or at least simultaneously?
THE WITNESS: Correct.
At various times during Crayton's testimony, the trial court
interposed its own questions. For instance, during direct
examination of Crayton, the following exchange occurred:
THE COURT: How many vials a day would you do?
THE WITNESS: Anywhere from four to ten.
THE COURT: How much a day, money-wise?
THE WITNESS: Anywhere from $15 to $30 or $40.
THE COURT: You were getting four or five vials a day
THE WITNESS: I said from $15 to $30. I don't buy the
same amount every time. If I don't have the money I
couldn't buy what I wanted. Tr. 280.
During summation, Crayton argued that a slight discrepancy
between the weights of the two vials sold to the undercover
officer and the five vials found in Crayton's possession
suggested they were of different origins. The prosecution, during
its summation, stated: "These vials, I submit, were packed by
crackheads in some kind of drug market or whatever. . . . They're
not packed by a pharmaceutical company; they're not weighed out
exactly." Tr. 344-45. No evidence was adduced at trial concerning
the manner in which the vials of crack cocaine were packed or
After the presentation of evidence, the trial court instructed
the jury about, inter alia, accessorial liability. The court
told the jury that "under our law, a person who aids, assists, or
participates in the commission of a crime is as guilty as any
other person taking part in the crime." The court continued:
"When one person engages in conduct which constitutes
an offense, another person is criminally liable for
such conduct when acting with the mental culpability
required for the commission thereof, he solicits,
requests, commands, importunes, or intentionally aids
such person to engage in such conduct."
* * *
So, when two or more persons act with each other in
pursuant [sic] of a common plan, actuated by the same
intent and knowledge, to wit, to sell and possess
drugs, and each of them does some act or acts in
fulfillment of that plan or common scheme, then each
of the persons who does some act towards the
accomplishment of the common end is a principal in
the crime, whether he performs a major or minor part
in the common endeavor.
Tr. 378, 380-81 (quoting N.Y. Penal Law § 20.00).
The trial court instructed the jury that in order to find the
petitioner guilty of the offense of criminal sale of a controlled
substance in the third degree, it must find that "[t]he
defendant, acting in concert, in the County of, City of New York, on or
about August 9, 1998, knowingly and unlawfully sold to a police
officer known to the Grand Jury a narcotic drug, to wit,
Thereafter, Crayton objected that the court's instruction about
accessorial liability was unbalanced. Crayton asked the court to
state explicitly that "mere presence at the scene" or "mere
association" does not establish accessorial liability. The court
stated, in response: "That was never part of the accessorial
liability charge." The court declined to instruct the jury
further on this point.
During its deliberations, the jury asked the court to clarify
the term "acting in concert," which the court used in its
instructions about the criminal sale of a controlled substance.
The court stated that "I will, in effect, reiterate my charge
pertaining to accessorial liability. And I will not include the
phrase that the defendant wants or the defense lawyer insists
upon." When Crayton reiterated his request for an explicit "mere
presence" instruction, the trial court responded: "No. I think
this accessorial liability is couched in language which anyone
can absorb and appreciate. . . . I think it's quite explicit and
quite clear, and I don't think I can improve upon it."
The jury found Crayton guilty on both charges. On April 19,
1999, Crayton was sentenced to concurrent terms of incarceration:
five to ten years of imprisonment for the third degree sale
conviction and five to ten years of imprisonment for the third
degree possession conviction. Crayton appealed from the judgment of conviction to the New
York State Supreme Court, Appellate Division, First Department
("Appellate Division"). He urged that court to upset his
conviction because: (1) the trial court participated excessively
in examining witnesses, for the purposes of rehabilitating the
testimony of prosecution witnesses and casting doubt on Crayton's
testimony; (2) the prosecution's statement, during its closing
argument, concerning the manner in which the vials of crack had
been packaged, was not supported by the evidence; and (3) the
trial court's instruction to the jury about accessorial liability
did not properly convey the applicable law. On December 12, 2000,
the Appellate Division affirmed the judgment of conviction. It
found, among other things, that Crayton's "claim that the trial
court excessively interfered in the examination of witnesses is
unpreserved for review . . . and we decline to review it in the
interest of justice." People v. Crayton, 278 A.D.2d 64,
718 N.Y.S.2d 299, 300 (App.Div. 1st Dep't 2000). The Appellate
Division found that "[t]he court's instruction on accessorial
liability was appropriate and the court meaningfully responded to
a jury note on that subject by rereading its original
instruction." Id. Finally, the Appellate Division found that
"[t]he prosecutor's summation remark concerning the manner in
which illegal drugs are packaged drew a reasonable inference from
the evidence and was a permissible response to defendant's
summation." Id. at 65, 300.
Crayton sought leave to appeal from the Appellate Division's
determination to the New York Court of Appeals. In his
application for leave, Clayton did not raise any claim concerning
the examination of witnesses by the trial court, but he did raise
the claims of prosecutorial misconduct and erroneous jury
instruction that were raised before the Appellate Division. On March 20, 2001, the New York Court of Appeals denied Crayton's
application. See People v. Crayton, 96 N.Y.2d 782,
725 N.Y.S.2d 646 (2001).
Thereafter, Crayton filed the instant petition for a writ of
habeas corpus, seeking relief on the grounds noted above.
Examination of Witnesses by the Trial Court
Before a habeas corpus petitioner may seek habeas corpus relief
in a federal court, he must have "exhausted the remedies
available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).
In order for a claim to be exhausted, a petitioner must have
presented it to each level of the state courts to which the right
to appeal lies, including the highest state court. See, e.g.,
Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 888
(1995); Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509,
In his application for leave to appeal to the New York Court of
Appeals, Crayton did not raise his claim that the trial court's
examination of witnesses was improper. As this claim was not
presented to that court, it has not been exhausted at the state
court level. Moreover, Crayton may not return to that court to
make a second request for leave to appeal. See Rules of
Practice, N.Y. Court of Appeals § 500.10. Moreover, he may not
obtain collateral review of this claim in state court because the
trial record provided sufficient facts to permit review of this
claim on direct appeal. See N.Y. Criminal Procedure Law
("NYCPL") § 440.10(2)(c). Crayton can no longer present this
claim to the state courts; the claim has been procedurally
defaulted. As a result, the claim should be deemed exhausted. In order to obtain federal habeas corpus review of a
procedurally defaulted claim, a habeas corpus petitioner must
show cause for the default and prejudice attributable thereto, or
that the federal court's failure to consider his claim would
result in a fundamental miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2564-65 (1991).
To show cause for a procedural default, a petitioner must show
that "some objective factor external to the defense impeded
counsel's efforts" to raise the claim in state court. See
McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470
(1991) (quoting Murray v. Carrier, 477 U.S. 478, 488,
106 S. Ct. 2639, 2645 ). In the case at bar, Crayton does not
allege any such external impediment, and none is apparent from
the record before the Court. Therefore, Crayton has not shown
cause for his default, and it is unnecessary to consider the
issue of prejudice. See Levine v. Commissioner of Correctional
Servs., 44 F.3d 121, 126-127 (2d Cir. 1995).
To show that a fundamental miscarriage of justice will result
if a federal habeas court does not consider the merits of a
claim, a petitioner must provide "new reliable evidence . . .
that was not presented at trial" and that shows that he is
"actually innocent." See Schlup v. Delo, 513 U.S. 298, 324,
115 S. Ct. 851, 865 (1995). As Crayton has proffered no new
evidence of his innocence, he cannot overcome the procedural
default of this claim.
B) Independent and Adequate State Law Ground
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, 501 U.S. at 729,
111 S. Ct. at 2553-54. In most cases, a state procedural bar constitutes an adequate and independent state law ground that is sufficient to
preclude federal habeas corpus review. "In exceptional cases,
however, an exorbitant application of a generally sound rule may
affect the adequacy and independence of the state procedural
ground, and allow the United States district court to consider
the merits of a constitutional claim." Rosa v. Herbert,
277 F. Supp. 2d 342, 351 (S.D.N.Y. 2003) (quoting Lee v. Kemna,
534 U.S. 362, 376, 122 S. Ct. 877, 885 ); see also Bell v.
Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr.
10, 2003) ("The mere invocation of a procedural bar does not . . .
automatically preclude review in this court.").
The Second Circuit Court of Appeals has stated that a
procedural bar is adequate to support a state court judgment only
if it is based on a rule that is "firmly established and
regularly followed" by the state in question. Cotto v. Herbert,
331 F.3d 217, 239-41 (2d Cir. 2003). Thus, the parties to an
action must have notice of the state procedural rule and the rule
must be applied consistently in similar circumstances. See
Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural
rule must serve a legitimate state interest. See Rosa,
277 F. Supp. 2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir.
1986). However, "the adequacy of a state procedural bar is
determined with reference to the particular application of the
rule; it is not enough that the rule generally serves a
legitimate state interest." Cotto, 331 F.3d at 240 (quoting
Lee, 534 U.S. at 387, 122 S. Ct. at 891) (internal quotation
marks omitted). Therefore, an inquiry into whether the
application of a procedural rule is "firmly established and
regularly followed" in the specific circumstances presented in a
case includes "an evaluation of the asserted state interest in
applying the procedural rule in such circumstances." Id. When Crayton presented this claim to the Appellate Division,
that court rejected the claim because Crayton had not raised the
claim at trial and, thus, had not preserved it for appellate
review. People v. Crayton, 278 A.D.2d at 64,
718 N.Y.S.2d at 300.
NYCPL § 470.05, in its most pertinent part, provides that:
For purposes of appeal, a question of law with
respect to a ruling or instruction of a criminal
court during a trial or proceeding is presented when
a protest thereto was registered, by the party
claiming error, at the time of such ruling or
instruction or at any subsequent time when the court
had an opportunity of effectively changing the same.
Such protest need not be in the form of an
"exception" but is sufficient if the party made his
position with respect to the ruling or instruction
known to the court. . . .
NYCPL § 470.05(2).
The purpose of the rule is "to fairly apprise the court and the
opposing party of the nature and scope of the matter contested."
People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261
(App.Div. 2d Dep't 1981).
New York's contemporaneous objection rule is firmly established
and has, for many years, been applied to claims of error
involving federal constitutional rights. See People v.
Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16 (1986); People v.
Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584 (1980). It has been
applied routinely in circumstances, such as those in the case at
bar, in which a defendant did not make a timely protest to
judicial bias or interference by a trial court in the examination
of witnesses. See, e.g., People v. Yut Wai Tom, 53 N.Y.2d 44,
54-56, 439 N.Y.S.2d 896, 902-04 (1981); People v. Prado,
1 A.D.3d 533, 534, 767 N.Y.S.2d 129, 130 (App.Div. 2d Dep't 2003)
(judicial bias); People v. Association of Trade Waste Removers
of Greater New York, 267 A.D.2d 137, 140, 701 N.Y.S.2d 12, 16
(App.Div. 1st Dep't 1999) (judicial bias and interference);
People v. Jennings, 210 A.D.2d 349, 620 N.Y.S.2d 282 (App. Div. 2d Dep't 1994) (citing Yut Wai Tom, supra). Crayton has
not identified any respect in which the Appellate Division's
application of this rule to the case at bar might have departed
from the regular application of the rule to similar cases in New
York appellate courts.
Therefore, in order to overcome the procedural bar imposed by
the Appellate Division's determination that this claim is
unpreserved, Crayton must show cause for his default and
prejudice attributable thereto or demonstrate that the failure to
consider his federal claims will result in a fundamental
miscarriage of justice. Crayton has shown neither cause for his
procedural default nor prejudice. As noted above, he has not
proffered any new evidence that he is actually innocent.
In light of the foregoing, the petitioner may not obtain habeas
corpus relief on this claim.
As noted above, in order to seek habeas corpus relief in a
federal court, a petitioner must have fairly presented the
substance of his federal claims to the state courts for
adjudication. See 28 U.S.C. § 2254(b)(1)(A). A petitioner must
also fairly apprise the state courts that his claim possesses a
federal dimension. See Daye v. Attorney General,
696 F.2d 186, 192 (2d Cir. 1982).
Stating simply that the petitioner did not receive a "fair
trial" is not enough in itself to apprise state courts of an
alleged federal constitutional violation. See Kirksey v.
Jones, 673 F.2d 58, 60 (2d Cir. 1982) ("Alleging lack of a fair
trial does not convert every complaint about evidence or a
prosecutor's summation into a federal due process claim.").
However, even without alleging the violation of a specific
constitutional provision expressly, a petitioner may fairly
present a federal constitutional claim to a state court by: "(a)
[relying] on pertinent federal cases employing [federal]
constitutional analysis, (b) [relying] on state cases employing
[federal] constitutional analysis in like fact situations, (c) [asserting]
the claim in terms so particular as to call to mind a specific
right protected by the Constitution, [or] (d) [alleging] a
pattern of facts that is well within the mainstream of [federal]
constitutional litigation." Daye, 696 F.2d at 194.
Although Crayton alleged a violation of his right to due
process under the Fourteenth Amendment explicitly in his
application for leave to appeal to the New York Court of Appeals,
he did not do so in his appeal to the Appellate Division.
However, in the brief submitted to the Appellate Division,
Crayton cited People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204
(1976). In Ashwal, the New York Court of Appeals cited Berger
v. United States, 295 U.S. 78, 55 S. Ct. 629 (1935), to support
the proposition that "[a]bove all [the prosecutor] should not
seek to lead the jury away from the issues by drawing irrelevant
and inflammatory conclusions which have a decided tendency to
prejudice the jury against the defendant." Ashwal,
39 N.Y.2d at 110, 383 N.Y.S.2d at 207. Berger reversed a criminal conviction
on the grounds that the prosecutor had used "improper
insinuations and assertions calculated to mislead the jury."
Berger, 295 U.S. at 85, 55 S. Ct. at 633. Although it does not
cite the Due Process Clauses of the Fifth or Fourteenth
Amendments, the Berger holding on prosecutorial misconduct sets
forth a federal rule of due process that is applicable to state
criminal prosecutions. See Powell v. Wiman, 287 F.2d 275, 279
(5th Cir. 1961) (citing Berger to support holding that state
criminal prosecution violated federal due process rights);
Curran v. Delaware, 259 F.2d 707, 712 (3d Cir. 1958) (same).
The Court finds that the citation to Ashwal in Crayton's
appellate brief was sufficient to apprise the Appellate Division
that Crayton's prosecutorial misconduct claim possessed a federal
constitutional dimension. Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, a writ of habeas
corpus may issue 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 proceeding. See
28 U.S.C. § 2254(d). Under this standard, "a federal habeas court
may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision
applied clearly established law erroneously or incorrectly.
Rather, that application must also be unreasonable." Williams v.
Taylor, 529 U.S. 362, 411, 120 S. Ct. 1495, 1522 (2000). In
order to grant the writ there must be "some increment of
incorrectness beyond error. [T]he increment need not be great;
otherwise, habeas relief would be limited to state court
decisions so far off the mark as to suggest judicial
incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
Under federal law, an improper statement to a jury by a
prosecutor will require reversal of a conviction only where the
remark so infected the trial as to make it fundamentally unfair,
thereby denying a defendant due process. See Donnelly v.
DeChristoforo, 416 U.S. 37, 643, 94 S. Ct. 1868, 1871 (1974).
"Inappropriate prosecutorial comments, standing alone, would not
justify a reviewing court to reverse a criminal conviction
obtained in an otherwise fair proceeding. Instead, . . . the
remarks must be examined within the context of the trial to
determine whether the prosecutor's behavior amounted to
prejudicial error." United States v. Young, 470 U.S. 1, 11-12,
105 S. Ct. 1038, 1044 (1985); see also Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471 (1986) ("It is not enough that the
prosecutors' remarks were undesirable or even universally
In determining whether a prosecutor's improper remarks
prejudiced a defendant, a court should consider three factors:
(1) the severity of the [prosecutor's] misconduct; (2) the
measures adopted to cure the misconduct; and (3) the certainty of
conviction absent the improper statements. See, e.g., United
States v. Thomas, 377 F.3d 232, 245 (2d Cir. 2004); United
States v. Evangelista, 122 F.3d 112, 120 (2d Cir. 1997).
During his closing statement, Crayton argued that a slight
discrepancy between the average weights of four of the five vials
found in his possession and the weights of the two vials sold to
the undercover officer could indicate that the two sets of vials
had different origins. In response, during its closing statement,
the prosecution stated that "[t]hese vials, I submit, were packed
by crackheads in some kind of drug market or whatever . . .
[t]hey're not packed by a pharmaceutical company; they're not
weighed out exactly."
A prosecutor, during summation, may draw all reasonable
inferences from the evidence on the record. See Young,
470 U.S. at 9 n. 7, 105 S. Ct. at 1043 n. 7. The discrepancy between
the weights of vials from the two sets of vials was, at most, 0.4
grams. Crack cocaine is an illegal substance. Under the
circumstances, it was not unreasonable for the prosecution to
draw an inference that the vials of cocaine at issue in Crayton's
trial were likely packaged in an unregulated environment that
would produce some variation in the vials' weight. Even if the
prosecutor's remarks had been improper, it was not unreasonable
to conclude, in light of the other evidence presented at trial,
that the above-noted remark did not result in substantial
prejudice to Crayton. A police officer identified Crayton in
court as the man who sold him two vials of crack cocaine. Crayton conceded that he was in
possession of five vials at the time of his arrest, and other
evidence adduced at trial indicated that those five vials were
similar in appearance to the two vials sold to the undercover
officer. Crayton has not identified any basis upon which to
conclude that the jury's verdict turned on the challenged remark
or that the remark affected the jury's ability to weigh the
evidence and apply the law. See Young, 470 U.S. at 12,
105 S. Ct. at 1045. In any event, it does not appear that the Appellate
Division applied the above-noted Supreme Court precedents
unreasonably when it held that "[t]he prosecutor's summation
remark . . . drew a reasonable inference from the evidence and
was a permissible response to defendant's summation." Crayton,
278 A.D.2d at 65, 718 N.Y.S.2d at 300.
Consequently, this claim does not warrant habeas corpus relief.
Erroneous Jury Instruction
In his appellate brief and application for leave to appeal to
the New York Court of Appeals, Crayton did not raise expressly
any points of federal law in support of his contention that the
jury instruction about accessorial liability was inadequate.
Crayton did not cite any state decisional law that employed
pertinent federal constitutional analysis. He did not present
these claims to the state courts using terms or alleged facts
that would call to mind a specific federal constitutional right
or place his claim within the mainstream of federal
constitutional litigation. While Crayton asserted that he was
deprived of a "fair trial," this phrase is not, without more,
sufficient to apprise the state courts of a Fourteenth Amendment
due process violation. See Kirksey, 673 F.2d at 60.
Therefore, this ground of Crayton's habeas corpus petition,
regarding the jury instruction, is unexhausted. Moreover, the
trial record provided sufficient facts to permit review of this claim by the Appellate Division on direct appeal. In such a
circumstance, Crayton is procedurally barred from challenging his
conviction on this ground in state court. See NYCPL §
440.10(2)(c). Crayton has shown neither cause for his procedural
default nor prejudice. As noted above, he has not proffered any
new evidence that he is actually innocent.
Under these circumstances, his claim concerning the trial
court's jury instruction should not be entertained by this court.
For the reasons set forth above, the petitioner's application
for a writ of habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of the Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Jed S. Rakoff,
United States District Judge, 500 Pearl St., Room 1340, New York,
New York 10007, and to the chambers of the undersigned, 40 Centre
St., Room 540, New York, New York 10007. Any requests for an
extension of time for filing objections must be directed to Judge
Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v.
Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).