Summary
finding that factual "[a]llegations of improper juror dismissal evoke[d] the Sixth Amendment right to an impartial jury" were sufficient to allow for federal habeas review
Summary of this case from Holder v. LamannaOpinion
No. 00 Civ. 5693 (LTS)(JCF)
June 4, 2002
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION
On December 11, 2001, Magistrate Judge James C. Francis IV issued a Report and Recommendation ("Report") recommending that the petition of Alfredo Carrasco ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. No objections to the Report have been filed.
In reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "`need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N Y 2001) (citation omitted). See also Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").
The Court has reviewed thoroughly Magistrate Judge Francis's well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition for writ of habeas corpus is denied.
The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 1994 Supp. 2001). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal.
Magistrate Judge Francis's Report follows.
SO ORDERED.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ALFREDO CARRASCO, 00 Civ. 5693 (LTS) (JCF)
Petitioner, REPORT AND RECOMMENDATION -against-
JOSEPH DAVID, Superintendent, Greene Correctional Facility,
Respondent.
TO THE HONORABLE LAURA TAYLOR SWAIN, U.S.D.J.:
Alfredo Carrasco brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County for the sale of narcotics. The petitioner claims that: (1) the trial court improperly discharged three sworn jurors during voir dire and an additional juror after opening statements; (2) the judge wrongly permitted an undercover police officer to testify anonymously; (3) Mr. Carrasco was denied his right to speak before sentencing; and (4) his sentence should be reduced in the interests of justice. For the following reasons, I recommend that the petition be denied.
Background
On February 19, 1996, the petitioner was arrested for selling crack cocaine to an undercover police officer. He was subsequently charged with criminal sale of a controlled substance in the third degree, a class B felony, in violation of New York Penal Law § 220.39(1). According to evidence presented at trial, Mr. Carrasco was standing outside 313 East 115th Street in Manhattan on February 19, 1996, when he approached an undercover detective and offered to sell him crack. (Tr. 341-42). The detective told Mr. Carrasco that he wanted two five-dollar bags. Following Mr. Carrasco into the vestibule of the building, the detective proceeded to exchange ten dollars of pre-recorded buy money for two ziplock bags of crack cocaine. (Tr. 342, 347).
The undercover detective then left the building and radioed to his field team the description and location of Mr. Carrasco. (Tr. 342). Detective Brian Hunt received the transmission and proceeded to the location where he found Mr. Carrasco and searched him for weapons. (Tr. 412-14). Meanwhile, the undercover detective drove by and identified Mr. Carrasco as the man who sold him the crack. (Tr. 354). When Detective Hunt received confirmation that the undercover detective had made the identification, he arrested Mr. Carrasco and recovered the pre-recorded ten dollar bill from his pocket. (Tr. 417-18).
The trial took place before Justice Ronald Zweibel. During a pretrial proceeding, the prosecution moved that the name of the undercover police detective who bought the drugs from Mr. Carrasco not be used in the courtroom. The assistant district attorney argued that the detective be identified only by his shield number because he had an unusual first name and was listed in the phone book, factors that could endanger him and his family. (Tr. 45-46). The petitioner objected, arguing that his right to a public trial would be violated and that the undercover detective could be identified by using only his last name, which was a common one. (Tr. 46-47). The court ruled that revealing the undercover detective's name could place him and his family in jeopardy and that only his shield number would be used. (Tr. 47).
On the first day of Mr. Carrasco's trial, three jurors were selected and sworn. The court then halted jury selection for the day and instructed the three sworn jurors and the remaining potential jurors to return the next morning to continue with voir dire. Before jury selection resumed, the court was informed by one of the potential jurors, Judith Londale McQuen, that a group of the prospective jurors had discussed the merits of the case in the elevator. Ms. McQuen related that in the course of this discussion, someone suggested that the "case against [Mr. Carrasco] couldn't be very strong because otherwise it wouldn't be taken to trial considering how minor the offense was." (Tr. 164). According to Ms. McQuen, one of the potential jurors added "that he knew of a criminal case where a defendant had been held in jail for nine months when the purpose was to pressure him and he wasn't really guilty of anything." (Tr. 165). Finally, Ms. McQuen told the court that another potential juror argued that "because of the minor nature of the charges, the defendant would not be insisting on the trial if the charges were true." (Tr. 168).
After receiving this information through a note from Ms. McQuen, the court called her in and asked if she knew which jurors participated in this conversation. (Tr. 167). Ms. McQuen responded, "I could identify three of them but I was so shocked at what was going on I didn't really register the faces as well as I might have. Plus I was at the very back [of the elevator]." (Tr. 167-68). Based on that information, the trial court found that it would be virtually impossible to isolate the potential jurors who might have preconceived notions concerning the case because it was not clear who made the statements or who heard them in the elevator. (Tr. 169) Therefore, the court discharged the entire panel, including the three sworn jurors, and began selection again from a new panel. (Tr. 171-72).
After the entire jury had been sworn and counsel had made opening statements, one of the jurors told a court officer that the petitioner lived in her neighborhood. The trial judge then asked the juror to remain and speak with him and the parties. (Tr. 304).
Upon questioning, the juror told the court that Mr. Carrasco did reside in her neighborhood but that she did not personally know him. The juror also said she was nervous and expressed concern that the petitioner's associates would "take care of" those who were responsible for his conviction. (Tr. 312-13). Upon questioning by Mr. Carrasco's counsel, the juror also said she was nervous and that she could not completely fulfill her obligations as a juror. (Tr. 309-10). After it was determined that the juror lived in the same building where the drug sale at issue took place, the assistant district attorney asked that the juror be dismissed. (Tr. 315-16). Finding that she was "unfit for continued service" and "grossly unqualified" to serve, the trial court discharged the juror over the petitioner's objections. (Tr. 317).
On April 28, 1997, the jury found Mr. Carrasco guilty, and on May 12, 1997, he was sentenced to an indeterminate term of imprisonment of six to twelve years.
On appeal, Mr. Carrasco raised five arguments. He contended that the court improperly dismissed the three sworn jurors without making any inquiry about their continued fitness to serve. Next, he argued that the court applied an incorrect standard of law in removing the other juror after opening statements. Additionally, he maintained that the court abused its discretion by allowing the undercover detective to testify after being identified only by his shield number rather than by name. Also, the petitioner argued that his sentence should be vacated because the court sentenced him without affording him an opportunity to speak. Finally, Mr. Carrasco contended that the court should reduce his sentence to the mandatory minimum in the interest of justice because he had only one prior conviction, which was for a non-violent offense.
On June 8, 1999, the Appellate Division, First Department, unanimously affirmed the judgment of conviction. People v. Carrasco, 262 A.D.2d 50, 691 N.Y.S.2d 465 (1st Dep't 1999). The New York Court of Appeals denied leave to appeal on August 30, 1999. People v. Carrasco, 93 N.Y.2d 1015, 697 N.Y.S.2d 574 (1999).
Mr. Carrasco then filed the instant petition for a writ of habeas corpus, raising the same arguments as in his appeal to the Appellate Division. The respondent moves to dismiss the petition on both procedural and substantive grounds. First, the respondent argues that all of the petitioner's claims should be deemed exhausted yet forfeited for habeas review because Mr. Carrasco failed to raise them in federal constitutional terms to the state's highest court. Second, the respondent contends that the petitioner's claims should be denied on the merits.
Discussion
A. Exhaustion and Procedural Default
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. 28 U.S.C. § 2254(b), (c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1404 (2001). Nevertheless, a claim will be deemed exhausted if it is clear that the state court would find it procedurally barred. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). That same procedural bar, however, precludes the habeas corpus court in most instances from reviewing the defaulted claim on the merits. Gray, 518 U.S. at 162; Spence, 219 F.3d at 170. Substantive review will only be available if the petitioner is able to show cause for the default and resulting prejudice, or "demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice,' or, in other words, an unjust incarceration." Spence, 219 F.3d at 170 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
To satisfy the exhaustion requirement, a petitioner must have "fairly presented" his federal constitutional claims in state court. Picard v. O'Connor, 404 U.S. 270, 275 (1971); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). "In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (citations omitted). A petitioner need not cite "`book and verse on the federal constitution'" to alert a state court to the federal nature of a legal claim; it is sufficient that the legal claims are substantially equivalent. Id. at 192 (quoting Picard, 404 U.S. at 278). Without explicitly citing the Constitution, the federal nature of a state defendant's claim may be demonstrated 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.
The respondent argues that all of the claims are unexhausted because the petitioner failed to raise them in federal terms in the New York Court of Appeals and that they are forfeited because he can no longer raise them there. The respondent further maintains that the petitioner has not shown any ground to excuse the procedural default.
1. Right to Speak Before Sentencing
Mr. Carrasco claims that his statutory right under New York Criminal Procedural Law ("CPL") § 380.50 to address the court before sentencing was violated. Mr. Carrasco's contention before the Appellate Division and the Court of Appeals relied specifically on a state statute and did not raise any federal issues. In further support of his appellate argument, Mr. Carrasco cited a state case that does not employ constitutional analysis in any respect. Therefore, this claim is unexhausted.
In addition, Mr. Carrasco is now procedurally barred from returning to state court to argue this claim based on federal constitutional grounds. This is because New York law provides for only a single application for direct review, N.Y. Rules of Court § 500.10(a); see also Spence, 219 F.3d at 170, and a defendant who fails to press an available claim on direct appeal is barred from raising it on collateral review. N.Y. Crim. Proc. Law § 440.10(2)(c); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d. Cir. 2000), cert. denied, U.S., 121 S.Ct. 1404 (2001). Mr. Carasco has not suggested any cause for failing to assert this claim on appeal, nor has he demonstrated prejudice. Finally, he has not shown that manifest injustice will result if this ground is not considered. Accordingly, this claim is procedurally barred and should be dismissed.
2. Sentence
Mr. Carrasco asserts that his sentence should be reduced in the interest of justice. Again, the petitioner did not raise in state court a federal claim with regard to his sentence. Only a sentence that is grossly excessive or illegal under state law violates the United States Constitution and warrants habeas corpus review. See Solem v. Helm, 463 U.S. 277, 303 (1983) (finding life sentence for passing $100 bad check unconstitutional); United States v. DiTommaso, 817 F.2d 201, 217 (2d Cir. 1987) (imposition of longer sentence than that recommended by government does not violate constitution where sentence is within statutory range and there are no extraordinary circumstances); Wills v. Andrews, 903 F. Supp. 318, 320 (N.D.N Y 1995) (sentence constitutionally permissible where sentence not "wholly devoid of discretion"). Generally, "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law," as was the case here. Mercer v. Keane, 95 Civ. 1538, 1997 WL 529031, at *5 (S.D.N Y Aug. 25, 1993) (quoting White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)). Because Mr. Carrasco did not allege to the state courts that his sentence was either grossly excessive or outside the range permitted by state law, he did not fairly present a federal claim challenging his sentence to the state court, and it is, therefore, unexhausted.
Furthermore, this claim should be dismissed with prejudice for the same reasons as the petitioner's prior claim. Mr. Carasco is now procedurally barred from returning to state court to argue that his sentence violated the federal Constitution. Thus, the claim is deemed exhausted, yet procedurally defaulted. Again, he has not demonstrated either cause and prejudice or manifest injustice in order to overcome the procedural bar. Accordingly, this claim should also be dismissed.
3. Dismissal of Jurors
In his state appellate brief, Mr. Carrasco argued that "[a]ppellant was denied his right to a jury in whose selection he had a voice, in essence, of his right to a jury trial, and such an error cannot be harmless regardless of the strength or weakness of the evidence against him." (Brief for Defendant-Appellant ("App. Br."), attached as Exh. C to Declaration S. Kenneth Jones, dated Jan. 15, 2001, at 14). While the invocation of broad concepts such as "due process" or "fair trial" may be insufficient to alert a state court to a federal constitutional claim, certain factual allegations are patently of constitutional dimension and will fulfill the fair presentment requirement. See Daye, 696 F.2d at 193; Perez v. McGinnis, No. 96 CV 5868, 1999 WL 1021818, at *5 (E.D.N.Y. Jan. 4, 1999) (allegations of curtailment of cross-examination directly call to mind Sixth Amendment right to confrontation and constitute fair presentment). Allegations of improper juror dismissal evoke the Sixth Amendment right to an impartial jury and the Fourteenth Amendment right to due process. Accordingly, the state courts were fairly appraised of the federal constitutional issues involved with the petitioner's juror dismissal claims and the issue is exhausted.
In his appellate brief, the petitioner characterized the two instances when jurors were dismissed as a single issue with two parts, but only asserted that he was denied the right to a jury trial with regard to the first instance. (App. Br. at 14). The federal constitutional claim, however, is clearly applicable to both instances, and the claim is therefore exhausted in its entirety.
4. Right to a Public Trial
The petitioner contends that the trial court abused its discretion by permitting the undercover detective to testify anonymously. In his appellate brief, Mr. Carrasco cited People v. Tolentino, 90 N.Y.2d 867, 661 N.Y.S.2d 593 (1997), in support of his position. (App. Br. at 19-20). In Tolentino, the New York Court of Appeals considered whether a trial court denied the defendant his Sixth Amendment right to a public trial by closing the courtroom in order to protect the identity of an undercover police officer without holding a hearing.
Defendant having timely objected to the People's request to close the courtroom, the People, as the proponent of closure, were required to `advance an overriding interest that [wa]s likely to be prejudiced' by open-court testimony in defendant's case (Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216-2217, 81 L.Ed.2d 31). To comport with the Sixth Amendment guarantee of a public trial, moreover, the trial court was obligated to ensure that closure was no broader than necessary to protect that interest, to consider reasonable alternatives to closing the proceeding, and to make findings adequate to support the closure (id.).
Tolentino, 90 N.Y.2d at 869, 661 N.Y.S.2d at 595. The petitioner's reliance on a state case that employed federal constitutional analysis in a like fact situation fairly disclosed to the state courts the federal nature of the claim. Therefore, this issue, too, is exhausted.
B. Merits
1. Dismissal of Jurors
Mr. Carrasco claims that the dismissal of three sworn jurors from the first jury panel without affording defense counsel an opportunity to question the individual jurors violated his right to a jury trial. (Petition at 6A; App. Br. at 12, 14). He also alleges that the trial court improperly disqualified another juror without sufficient evidence of her unsuitability to serve. (Petition at 6A; App. Br. at 14-17).
"Although certain decisions suggest that in some circumstances a defendant may have a `right to have his trial completed by a particular tribunal,' a showing of ensuing prejudice is generally required before a conviction will be overturned on this ground." Taxiarhopoulos v. Spence, No. CV 92-0790, 1992 WL 403112, at *14 (E.D.N.Y. 1992) (citations omitted). Absent such prejudice, the trial court is granted wide discretion to remove jurors who cannot perform their duty. Id., at *14-15.
In this case, Mr. Carrasco has not made any showing of prejudice. Therefore, the trial court's decision must be granted great deference. See United States v. Millar, 79 F.3d 338, 342 (2d Cir. 1996) ("[s]ubstitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any party.") (internal quotations and citation omitted); Shepard v. Artuz, No. 99 Civ. 1912, 2000 WL 423519, at *5 (S.D.N.Y. April 19, 2000) (same); Edmonds v. McGinnis, 11 F. Supp.2d 427, 432 (S.D.N.Y. 1998) (same); see also United States v. Aiello, 771 F.2d 621, 629 (2d Cir. 1985) (upon learning of unauthorized communication by third person with juror, "trial judge must be given wide discretion to decide upon the appropriate course to take"). With regard to the dismissal of the three sworn jurors, the record reveals that the state court properly considered juror bias. In particular, Justice Zweibel individually interviewed Ms. McQuen after reading her note. That interview revealed that an unidentifiable number of jurors were either present or participated in the inappropriate conversation. (Tr. 167-68). Furthermore, the trial court recognized the unreliability of asking the members of the panel to identify themselves if they were a party to this conversation. (Tr. 170). Given the imprecise scope of the tainted conversation and the virtual impossibility of discovering its ramifications, the trial court acted reasonably in dismissing the entire panel. Accordingly, the petitioner's contention is without merit.
With regard to the dismissal of the other juror, the petitioner argues that the trial court should have allowed his attorney to continue questioning her. However, Justice Zweibel did permit petitioner's counsel to interrogate the juror after learning of her ties to Mr. Carrasco's neighborhood. Additionally, Justice Zweibel continued to question her after petitioner's counsel finished. After conducting a thorough interview with the juror, during which she admitted that she was nervous, appeared "petrified," and become unresponsive to the court's questions, Justice Zweibel determined that she was unfit for service. (Tr. 316-17). Furthermore, Justice Zweibel noted that upon his discharge of the juror she breathed a sigh of relief. (Tr. 317-18). Because the trial court conducted a reasonable inquiry into the ability of the juror to continue to serve and acted well within its discretion when it discharged the juror, this claim should be denied.
2. Right to a Public Trial
Finally, the petitioner argues that the trial court abused its discretion by permitting the undercover detective to testify anonymously based solely on the representations made by the prosecutor. The Sixth Amendment to the United States Constitution affords all criminal defendants the "right to a speedy and public trial," U.S. Const. amend. VI. A public trial ensures that "the public may see [that the accused] is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions[.]" Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979) (quoting In re Oliver, 333 U.S. 257, 270 n. 25 (1948)). "In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." Waller v. Georgia, 467 U.S. 39, 46 (1984) (citations omitted).
However, the right to a public trial is not absolute, and in certain circumstances, may yield to other rights or interests. Id. at 45. In Waller, the Supreme Court held that the right to a public trial may be curtailed if: (1) the party seeking to close the hearing advances an overriding interest; (2) the closure is no broader than necessary to protect that interest; (3) the trial court considers reasonable alternatives to closing the proceeding; and (4) the court makes findings adequate to support the closure. Id. at 48. Denying the accused a public trial without satisfying all four prongs of the test is a violation of the Sixth Amendment. Id. at 47.
a. Interests Justifying Closure
In order to fulfill the first requirement of the Waller analysis, the party seeking closure must come forward with evidence of an "overriding interest that is likely to be prejudiced" if public access is denied. Waller, 467 U.S. at 48. The Second Circuit has recognized that the safety of a police officer can be such an overriding interest. Brown v. Kuhlmann, 142 F.3d 529, 537 (2d Cir. 1998).
In addition, the state must show a "substantial probability" that prejudice will result from taking testimony in open court; the mere possibility of prejudice is insufficient. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 14 (1986). However, a less stringent standard is applied in the case of a partial closure that does not "implicate the same secrecy and fairness concerns" as a total closure. Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); see Ayala v. Speckard, 131 F.3d 62, 70 (2d Cir. 1997) (en banc) ("[T]he more extensive . . . the closure requested [is], the greater . . . the gravity of the required interest and the likelihood of risk to that interest [must be]."); see also Brown, 142 F.3d at 538 (where closure was brief, limited likelihood that undercover officer's safety would be prejudiced by open courtroom sufficient). In such a case the court must determine whether there was a "substantial reason" for the partial closure, rather than an "overriding interest." The closure here was extremely limited since the court was not "closed" in the literal sense; access was only curtailed in that the undercover detective would not reveal his name to the defendant or to the public attending the trial. The public could in fact watch the detective testify. Because the prosecutor provided ample reason for the limited "closure," the first prong of the Waller test was fulfilled.
b. Breadth of Closure
The second Waller requirement was also satisfied. "Implicit in [the] command [that the closure be no broader than necessary] is the requirement to consider measures less broad than complete closure." Ayala v. Speckard, 102 F.3d 649, 653 (2d Cir. 1996) (per curiam), vacated on reh'g en banc by 131 F.3d 62 (2d Cir. 1997). Concealing the name of an undercover detective while he testifies in open court is narrower in scope than physically closing the courtroom to the public during the testimony. Therefore, considering that it was necessary to conceal the officer's identity in a practical manner, concealing his name and identifying him by his shield number was no broader than necessary.
c. Reasonable Alternatives
Under the third prong of Waller, the court must consider reasonable alternatives to the complete closure of the courtroom. In this case, the trial judge never contemplated completely closing the courtroom; it only considered various limited "closures." After considering the prosecution's request, which was ultimately adopted, and the alternative presented by the defendant, which was to require the undercover officer to use only his last name, Justice Zweibel responded, "I don't think [Mr. Carrasco's] rights are violated in any sense with an open trial which he will be granted if the officer just goes by the shield number without revealing his name." (Tr. 47). Justice Zweibel further reasoned, "I think revealing the name could tend to place the undercover and his family perhaps in some jeopardy. I will rule that only the number can be used." (Tr. 47). Thus, not only did the trial judge leave the courtroom open during the testimony of the undercover detective, but he also considered and rejected the defendant's alternative suggestion. Accordingly, the third prong of the Waller test was satisfied.
d. State Court Findings
Finally, Justice Zweibel's findings adequately supported his ruling. The record shows that the court's ruling was based on the fact that the undercover detective had a unique first name and was listed in the telephone book, so that if his name were revealed, both he and his family could be endangered. (Tr. 46-47). Therefore, all four prongs of the Waller test were satisfied and the petitioner's right to a public trial was not violated.
Conclusion
For the reasons set forth above, I recommend that Mr. Carrasco's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, Room 426, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, Room 1960, at 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
/s/ JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York December 11, 2001