Opinion
Civil Action 21 Civ. 9372 (PAE) (SLC)
12-30-2022
MIGUEL E. JOAQUIN, Petitioner, v. WARDEN BRANDON J. SMITH, Respondent.
HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On October 20, 2021, pro se Petitioner Miguel E. Joaquin (“Joaquin”), who is currently incarcerated at Governeur Correctional Facility, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (the “Petition”), challenging his 2011 judgment of conviction (the “Judgment”) in New York State Supreme Court, Bronx County. (ECF No. 1 (the “Petition”)). On November 19, 2021, the Court ordered Joaquin to show cause why his Petition should not be dismissed as time-barred. (ECF No. 5 (the “OTSC”)). On April 19, 2022, Joaquin submitted a declaration in response to the OTSC. (ECF No. 12 (the “Declaration”)).
Having considered the Petition and the Declaration, for the reasons set forth below, the Court respectfully recommends that the Petition be DISMISSED as time-barred.
II. BACKGROUND
The following facts are drawn from Joaquin's Petition and Declaration, and “are assumed to be true for the purposes of this” Report and Recommendation. Brewer v. Lee, No. 16-CV-4 051 (RRM), 2019 WL 1384074, at *1 (E.D.N.Y. Mar. 26, 2019); see Quizhpe v. Superintendent of E. Corr. Facility, No. 21 Civ. 1709 (KMK) (PED), 2022 WL 5202275, at *1 n.2 (S.D.N.Y. Aug. 22, 2022), adopted by, 2022 WL 5197319 (S.D.N.Y. Oct. 5, 2022).
A. State Court Proceedings
On January 21, 2010, in Bronx County Supreme Court, Joaquin was convicted in absentia of kidnapping in the second degree and robbery in the first and second degrees, and sentenced to an aggregate term of twenty years' imprisonment. (ECF No. 1 at 1, 23, 26). In December 2010, Joaquin was arrested in Connecticut on unrelated charges and returned to New York. (Id. at 26). On December 20, 2011, the Judgment was entered. (Id.) See People v. Joaquin, 150 A.D.3d 618 (1st Dep't 2017) (“Joaquin I”).
On May 2, 2016, Joaquin appealed the Judgment (the “Appeal”) to the Appellate Division, First Department (the “First Department”). (ECF No. 1 at 2, 27). Joaquin argued, inter alia, that (i) his trial attorney was ineffective for failing to file a timely speedy trial motion, and (ii) the trial court erred in declining “to strike any of the victim's testimony as a remedy for his repeated invocation of his Fifth Amendment privilege against self-incrimination during cross-examination[.]” Joaquin I, 150 A.D.3d at 619. (See ECF No. 1 at 2). On May 30, 2017, the First Department unanimously affirmed the Judgment. (ECF No. 1 at 2). See Joaquin I, 150 A.D.3d at 618. The First Department held, inter alia, that: (i) Joaquin's “claim that his counsel was unconstitutionally ineffective in failing to file a timely speedy trial motion is unreviewable in the absence of a [N.Y. Criminal Procedure Law §] 440.10 motion, since it involves matters not fully explained by the record[,]” and (ii) the trial court “properly declined to strike any of the victim's testimony” and “provided a suitable remedy by repeatedly instructing the jury that while the victim had the right to do so, the jury may consider his assertion of the [Fifth Amendment] privilege in determining the credibility and weight of his testimony.” Joaquin I, 150 A.D.3d at 619-20. On August 31, 2017, the New York State Court of Appeals denied Joaquin's application for leave to appeal. (ECF No. 1 at 2). People v. Joaquin, 29 N.Y.3d 1128 (2017) (“Joaquin II”). Joaquin did not petition the U.S. Supreme Court for a writ of certiorari. (ECF No. 1 at 3).
On July 2, 2019, Joaquin filed in Bronx County Supreme Court a motion pursuant to N.Y. Criminal Procedure Law § 440.10 (the “440.10 Motion”), challenging the effectiveness of his lawyer's representation. (ECF No. 1 at 3). Joaquin argued that his trial counsel was ineffective for failing to (i) file a timely speedy trial motion, and (ii) “request an adequate remedy in response to the complainant [witnesses invocation at trial of the Fifth Amendment.” (Id. at 17-18). On January 3, 2020, the Bronx court denied the 440.10 Motion, and, on March 9, 2021, the First Department denied leave to appeal. (Id. at 3-4, 16-22).
B. Federal Court Proceedings
On October 20, 2021, Joaquin filed the Petition. (ECF No. 1 at 15). He asserts claims identical to those he asserted in the 440.10 Motion, i.e., that he “was denied his Sixth Amendment right[] to the effective assistance of counsel” because his trial attorney failed to “file a timely speedy trial motion that would have resulted in the indictment being dismissed” and “preserve issues regarding [a] witnesses [sic] invocation of the Fifth Amendment [on] over 30 occasions.” (Id. at 5).
“When a prisoner is proceeding pro se, . . . federal courts generally consider his or her petition for habeas corpus to have been filed as of the date it was given to prison officials for forwarding to the court clerk.” Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2d Cir. 2000).
On November 19, 2021, the Court, noting that the applicable one-year statute of limitations appeared to have expired on November 30, 2018, issued the OTSC directing Joaquin to explain why his Petition should not be dismissed as time-barred. (ECF No. 5 at 1, 3). The Court directed Joaquin to provide the dates when: (1) he filed all post-conviction motions in the state court challenging the Judgment; (2) those motions were decided; (3) he filed any appeals or applications for leave to appeal from those decisions; (4) those appeals or applications were decided; and (5) he received notice of any state court decisions on those applications and appeals. (Id. at 3 (citing 28 U.S.C. § 2244(d)(2)). The Court also directed Joaquin to provide “any facts showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely submitting this petition.” (Id. (citing Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that the one-year limitations period under § 2244(d) for habeas corpus petitions under 28 U.S.C. § 2254 is subject to equitable tolling in appropriate cases))).
On April 19, 2022, Joaquin filed the Declaration, in which he attests that he failed to file the Petition within the limitations period because the attorney who represented him for the Appeal and the 440.10 Motion never informed him of the deadline for seeking habeas relief. (ECF No. 12).Specifically, Joaquin attests that, “[o]n or about 2015 [sic], [his] family retained the services of attorney Paul P. Martin, Esq. [‘Martin'] to prosecute” his Appeal. (Id. at 2 ¶ 3). After the First Department affirmed the Judgment, Martin advised-and Joaquin agreed-that, “[b]ecause the Appellate Division suggested that a CPL 440.10 [motion] was necessary to the issue of whether [Joaquin's] trial counsel was ineffective in regards to his handling of [Joaquin's] speedy trial rights, . . . [the] 440.10 [M]otion should be filed [in] the Bronx Supreme Court to address this issue.” (Id. at 2 ¶ 8). “Because [Joaquin] had no income, [he] relied completely upon [his] family to work out payment arrangements with Mr. Martin's office for the 440 application.” (Id. at 2 ¶ 10). Joaquin “had no control [over] nor was [he] aware of when and how payments would be made or completed to Mr. Martin's office.” (Id.) Joaquin is “uncertain as to how long it took to complete the payment to Mr. Martin,” but he recalls “becoming anxious with the delay in filing the 440.10 [M]otion.” (Id. at 3 11). In July 2019, Joaquin “received communications from Mr. Martin's office that [the] 440.10 [Motion] had been filed on [his] behalf[,]” along with a copy of the 440.10 Motion. (Id. at 3 ¶ 12). In August 2019, Joaquin “received a copy of the District Attorney's Opposition papers” and, in January 2020, he learned that the trial court denied the 440.10 Motion. (Id. at 3 ¶¶ 13-14).
This replaced the unnotarized version of the Declaration Joaquin filed on April 4, 2022. (ECF No. 10).
Joaquin claims that “[a]t no time was [he] made aware of the [] deadlines for filing a Federal Habeas Petition[,]” that he is “a layman and did not know anything about federal law[,]” and that he “relied completely on [Martin] for all legal matters.” (ECF No. 12 at 2 ¶ 9; see Id. at 3 ¶ 18). Joaquin claims that, “[h]ad [he] been aware, [he] would have queried [Martin] as to any filing deadlines and asked if [his] 440 application would be filed in order to stop the clock so as to preserve [his] ability to file a Federal Habeas Corpus [petition] in the future.” (Id. at 3 ¶ 18).
The Declaration attaches a letter dated March 28, 2022 from Martin to Joaquin “regarding [Martin's] previous representation of [Joaquin's] legal matters.” (ECF No. 12 at 6-9). Martin stated that, to the best of his recollection, “a cost of between $7,500.00 - $12,000.00 was agreed upon to file the [] 440.10 [M]otion.” (Id. at 6, 8). “To begin the process, [Martin] accepted partial payment increments and did inform [Joaquin's] family that [he] would not file the 440.10 [Motion] until the complete payment was made.” (Id. at 8). Martin “recalled” that “it took a very long time for the full payment to be reached[,]” and that, “upon information and belief, the final payment was made on or about February-March 2019, outside the one-year limitation [period] . . . for the filing of a habeas corpus petition . . . .” (Id.) According to Martin, his “legal assistant became aware that [he] had missed the opportunity to stop the clock the instan[t] that the final payment was made but, [he was] powerless to do anything about it.” (Id.) “Nevertheless, [Martin] completed the 45-page [] 440.10 [Motion] and filed the same with the Bronx Supreme Court on or about July 2, 2019.” (Id.)
Martin “concede[d] that [his] office dropped the ball in that [he] had no mechanism in place and did not keep an accurate record or mental note as to when the ability to stop the clock by filing the [] 440.10 [M]otion would expire.” (ECF No. 12 at 8) Martin also acknowledged that he “failed to inform [Joaquin's] family that payment should be completed by a date certain in advance of the [] limitation[s] period” for filing a habeas petition. (Id.) He stated that his “policy not to file post-judgment CPL 440.10 applications until full payment is made is based upon the fact that often 440.10 applications are determined summarily, that is, without a hearing” and, “[a]s such, it is very difficult to obtain unpaid balances from a defendant after a 440 application is summarily denied.” (Id. at 8 n.1).
III. DISCUSSION
A. Applicable Legal Standards
1. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations on federal habeas corpus petitions filed by prisoners in custody pursuant to a state court judgement. See 28 U.S.C. § 2244(d). The one-year filing period begins on the latest of four benchmark dates, i.e., when: (1) the judgment of conviction becomes final; (2) a government-created impediment to filing a petition is removed; (3) the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) the facts supporting the petition could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)-(2).
The “AEDPA's statute of limitations is tolled during the pendency of a properly filed application for state post-conviction relief, or other collateral review, of a claim raised in the petition.” Davalloo v. Kaplan, No. 16 Civ. 9342 (VB) (PED), 2017 WL 10299582, at *3 (S.D.N.Y. Dec. 20, 2017) (citing 28 U.S.C. § 2244(d)(2)). Post-conviction motions filed after the limitations period expires, however, do not start the limitations period anew. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (“[P]roper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run.”). “In other words, a pending state relief application can pause the clock, but that application must itself be filed within the one-year limitations period.” Brewer, 2019 WL 1384074, at *2.
2. Equitable Tolling
“The AEDPA limitations period is ‘subject to equitable tolling in appropriate cases.'” Cosey v. Lilley, 460 F.Supp.3d 346, 371 (S.D.N.Y. 2020) (quoting Holland, 560 U.S. at 645). To claim equitable tolling, the petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (citation omitted). “The term ‘extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). “Equitable tolling is warranted only in rare and exceptional circumstances.” ITT Corp. v. Lee, 663 Fed.Appx. 80, 84 (2d Cir. 2016) (citing Harper, 648 F.3d at 136).
B. Analysis
1. The Petition is Time-Barred.
Joaquin failed to file the Petition within one year of the Judgment becoming final under 28 U.S.C. § 2244(d)(1)(A). The First Department affirmed the Judgment on May 30, 2017, see Joaquin I, 150 A.D.3d at 618, the Court of Appeals denied Joaquin's application for leave to appeal on August 31, 2017, see Joaquin II, 29 N.Y.3d 1128, and Joaquin did not petition the U.S. Supreme Court for a writ of certiorari. (ECF No. 1 at 3). As a result, the Judgment became final on November 30, 2017, on “the expiration of his [90-day period of] time to petition for certiorari in the Supreme Court of the United States.” Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000); see 28 U.S.C. 2101(d); Sup. Ct. R. 13. Joaquin then had one year-until November 30, 2018-to file a petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). He did not file the Petition, however, until October 20, 2021, nearly four years after the Judgment became final. (See ECF No. 1 at 15).
Joaquin's filing of the 440.10 Motion on July 2, 2019 did not toll the statute of limitations. As discussed above, the AEDPA's tolling provision applies only if a petitioner's post-conviction motion was already pending within the one-year limitations period. See 28 U.S.C. § 2244(d)(2); Smith v. McGinnis, 208 F.3d at 17. Here, Joaquin filed the 440.10 Motion July 2, 2019, seven months after the limitations period expired on November 30, 2018. (ECF No. 1 at 3). See Brewer, 2019 WL 1384074, at *2.
Thus, the Petition is time-barred unless one of § 2244(d)(1)'s exceptions warrants starting the limitation period later. A review of Joaquin's claims, however, reveals that none of the exceptions applies. Joaquin does not argue (nor is there any basis in the record to support an argument) that any legal impediment barred him from filing his Petition, that there was an intervening establishment of an applicable constitutional right to which he would be retroactively entitled, or that the factual predicate for his claims was not discoverable through the exercise of due diligence in the year prior to filing the Petition. See 28 U.S.C. § 2244(d)(1)(B)-(D). To the contrary, the claims Joaquin asserts in the Petition are effectively identical to those he asserted in the Appeal and the 440.10 Motion. (Compare ECF No. 1 at 5 with id. at 2-3, 6, 17-18). See Joaquin I, 150 A.D.3d at 619.
Accordingly, because Joaquin did not file the Petition within a year after the Judgment became final and none of the § 2244(d)(1)(B)-(D) exceptions applies, the Petition is untimely.
2. Joaquin is Not Entitled to Equitable Tolling.
As discussed above, the AEDPA limitations period is subject to equitable tolling in appropriate cases where extraordinary circumstances prevented timely filing and the petitioner diligently pursued his rights. (See § III.A.2 supra). To support the application of equitable tolling, Joaquin claims that he failed to file the Petition within the limitations period because Martin never informed him of the deadline for seeking habeas relief. (ECF No. 12 at 2-3 ¶¶ 9, 18). The Court finds that this argument fails to satisfy either prong of the test for equitable tolling.
First, Joaquin has not established that “extraordinary circumstances prevented him from filing his petition on time.” Smith v. McGinnis, 208 F.3d at 17. “Because a lawyer is the agent of his client, the client generally ‘must bear the risk of attorney error.'” Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012) (quoting Holland, 560 U.S. at 650) (internal citation omitted). “Therefore, ‘a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.'” Id. (quoting Holland, 560 U.S. at 651); see Davis v. Racette, 99 F.Supp.3d 379, 387 (E.D.N.Y. 2015) (“While attorney misconduct may satisfy the ‘extraordinary circumstances' requirement, ordinary error or neglect typically does not justify equitable tolling.”). “Rather, in order to rise to the level necessary to constitute an ‘extraordinary circumstance,' for purposes of tolling § 2254's limitation period, attorney negligence must be so egregious as to amount to an effective abandonment of the attorneyclient relationship.” Rivas, 687 F.3d at 538. As the Court summarized in Samo v. Kayser:
Instances of attorney misconduct that have been deemed sufficiently “extraordinary” include an attorney's abandonment of an appeal mid-process resulting in procedural default, see Maples[ v. Thomas, 565 U.S. 266, 274-75 (2012)]; a court-appointed attorney's failure to file a timely petition for habeas relief despite a series of letters from the client noting the importance of the deadline and citing the applicable legal rules, see Holland, 560 U.S. at 652; an attorney retained for post-conviction relief who “did virtually nothing for almost a year,” despite many requests for updates from the client who was eventually forced to file a pro se appeal, Martinez[ v. Supt. of E. Corr. Facility, 806 F.3d 27, 29-30 (2d Cir. 2015)]; an attorney who miscalculated the last date for filing a timely habeas petition despite repeated requests from the client that the lawyer file well in advance of it to avoid just that result, Dillon[ v. Conway, 642 F.3d 358, 363-64 (2d Cir. 2011)]; and an attorney who told his client, after performing no legal research, that the time to file a habeas petition had passed, even though fourteen months remained, and who additionally failed to communicate with the client despite the client's efforts to reach him, Baldayaque[ v. United States, 338 F.3d 145, 152 (2d Cir. 2003)].305 F.Supp.3d 551, 559 (S.D.N.Y. 2018), adopted by, 2018 WL 4565143 (S.D.N.Y. Sept. 21, 2018); see Nickels v. Conway, 480 Fed.Appx. 54, 56 (2d Cir.2012) (holding that attorney's failure to file petitioner's habeas petition “despite its repeated promises, and apparent direction from [the petitioner], to do so” constituted an “extraordinary circumstance” to warrant equitable tolling of the AEDPA's one-year limitations period).
Here, Martin's failure to file the 440.10 Motion within the AEDPA limitations period or track Joaquin's deadline for seeking habeas relief constitute the type of “attorney laxity and neglect” that “is insufficient to warrant equitable tolling.” Mears v. Graham, No. 13 Civ. 8737 (AJN), 2014 WL 4060022, at *11 (S.D.N.Y. Aug. 14, 2014) (finding that “counsel's misunderstanding or miscalculation of the AEDPA statute of limitations would constitute garden variety excusable neglect, and did not discharge [the petitioner] from his duty to file his petition by the . . . deadline, of which he was aware.”); see Maples, 565 U.S. at 282 (“[A]n attorney's negligence, for example, miscalculating a filing deadline, does not provide a basis for tolling a statutory time limit.”); Deskovic v. Mann, 210 F.3d 354 (2d Cir. 2000) (“Attorneys' failure to comply with statutes of limitations due to their own neglect is no basis for equitable tolling.”) (citing South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994) (finding that the “lack of due diligence on the part of [the] plaintiff's attorney [was] insufficient to justify application of an equitable toll”); Smith v. Bell, No. 21-CV-03570 (DG), 2022 WL 2704508, at *6 (E.D.N.Y. July 12, 2022) (finding that “appellate counsel's failure to file Petitioner's 440.20 motion” within the AEDPA limitations period “does not constitute an extraordinary circumstance”); Melendez v. United States, No. 04 Cr. 1097(HB), 2010 WL 1790415, at *3 (S.D.N.Y. May 5, 2010) (“That Petitioner's trial attorney failed to inform him of the one-year statute of limitations is insufficient to grant equitable tolling.”). While Martin concedes that he “dropped the ball in that [he] had no mechanism in place and did not keep an accurate record or mental note as to when the ability to stop the clock by filing the [] 440.10 [M]otion would expire[,]” he ultimately “completed the 45-page [] 440.10 [Motion] and filed the same with the Bronx Supreme Court on or about July 2, 2019. (ECF No. 12 at 8). Thus, the Court cannot conclude that Martin's conduct was “so egregious as to amount to an effective abandonment of the attorney-client relationship.” Rivas, 687 F.3d at 538; see Smith v. Bell, 2022 WL 2704508, at *6 (“The conduct of appellate counsel in filing the 440.20 motion [after the AEDPA limitations period] is not so egregious as to amount to an effective abandonment of the attorney-client relationship.”).
Second, and in any event, Joaquin has not shown that he acted “with reasonable diligence” during the limitations period. Smith v. McGinnis, 208 F.3d at 17. Joaquin claims that that he is “a layman and did not know anything about federal law[,]” and that, “[h]ad [he] been aware, [he] would have queried [Martin] as to any filing deadlines and asked if [his] 440 application would be filed in order to stop the clock so as to preserve [his] ability to file a Federal Habeas Corpus [petition] in the future.” (ECF No. 12 at 3-4 ¶¶ 9, 18). The law is clear, however, that equitable tolling cannot “be premised on [a litigant]'s lack of education, pro se status, or ignorance of the right to bring a claim.” Watson v. United States, 865 F.3d 123, 133 (2d Cir. 2017); see Wallace v. Kato, 549 U.S. 384, 396 (2007) (“Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.”). While Joaquin asserts, and Martin concedes, that Martin failed to advise him of the AEDPA limitations period, Joaquin did not retain Martin to file a habeas petition, i.e., the document for which he seeks to toll the statute of limitations. (ECF No. 12 at 2 ¶¶ 3, 9; see id. at 6-8). “In other words, [Joaquin], not his attorney, was responsible for complying with the one-year deadline” and, “[i]n light of this responsibility, it is reasonable to expect that [Joaquin] would make at least some effort within” the limitations period to satisfy the reasonable diligence requirement. Samo, 305 F.Supp.3d at 561. Here, after the First Department affirmed the Judgment and the Court of Appeals denied Joaquin's application for leave to appeal, Martin and Joaquin agreed to proceed with the 440.10 Motion. (ECF No. 12 at 2 ¶ 8). Despite “becoming anxious with the delay in filing the 440.10 [M]otion[,]” (id. at 3 ¶ 11), Joaquin “made no efforts during the time period at issue” to contact Martin or to access the resources available to him to learn of the AEDPA limitations period. Samo, 305 F.Supp.3d at 561 (“The diligence requirement at least requires that a prisoner act reasonably in accessing those resources that are available to him.”); c.f. Williams v. Kelley, 830 F.3d 770, 773 (8th Cir. 2016) (“A petitioner acts with diligence when, for example, he writes letters to his attorney asking her to file a habeas petition, contacts the court to learn about the status of his case, seeks to have his attorney removed for failure to pursue his case, and files a pro se petition the very day that he learns it is late.”) (citing Holland, 560 U.S. at 653).
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Petition be DISMISSED as time-barred.
Respondent shall promptly serve a copy of this Report and Recommendation on Joaquin and file proof of service on the docket by January 3, 2023.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to Joaquin.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Joaquin does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.