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David O'kane v. Robert Kirkpatrick

August 25, 2011


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:*fn1


Pro se petitioner David O'Kane brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction and sentence on charges of Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09). Magistrate Judge Katz issued a Report and Recommendation ("R&R"), in which he recommends that the petition be denied and that the action be dismissed with prejudice. Petitioner filed timely objections to the R&R on April 15, 2011.


A. Factual and Procedural History

On January 7, 2004, an undercover detective observed Petitioner handing objects to three individuals. The detective followed O'Kane into a store, where he searched petitioner's jacket and recovered 50 ziplock bags of crack cocaine. The detective attested that he recovered the crack cocaine from the right pocket; Petitioner has stressed throughout the proceedings that the jacket had only a left pocket, not a right pocket. On May 5, 2004, Petitioner pleaded guilty to criminal possession of a controlled substance in the fourth degree (N.Y. Penal Law § 220.09) and received a sentence of 3 to 6 years.

On March 21, 2006, O'Kane filed a pro se motion pursuant to New York Criminal Procedure Law ("CPL") § 440.10 to vacate the judgment of conviction, which the New York Country Supreme Court denied. The Appellate Division, First Department, denied Petitioner leave to appeal on March 28, 2007, and denied leave to reargue on June 6, 2007.

Petitioner appealed his conviction directly. On October 2, 2008, the Appellate Division, First Department, unanimously affirmed the judgment of conviction. People v. O'Kane, 55 A.D.3d 315, 865 N.Y.S.2d 61 (1st Dep't 2008). Petitioner sought leave to appeal to the New York Court of Appeals, which was denied on January 20, 2009. People v. O'Kane, 11 N.Y.3d 928 (2009).

Petitioner commenced this pro se action on June 3, 2009. He amended the petition on January 29, 2010, arguing a defective indictment and ineffective assistance of counsel. The petition was referred to Magistrate Judge Katz, who issued a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(C) on February 15, 2011 (the "R&R").

B. Magistrate Judge Katz's Report & Recommendation

After carefully evaluating the submissions, Magistrate Judge Katz recommended that Petitioner's petition for a writ of habeas corpus be denied. The R&R notes that Petitioner's claims are reiterations of previous arguments made in state court. Petitioner's allegation that false witness testimony was used to convict him was discussed at length. See R&R at 10-24. Judge Katz found that the claim is procedurally barred and is not cognizable in a federal habeas corpus proceeding. R&R at 13. Judge Katz also seriously considered petitioner's objection to effectiveness of appellate counsel. See R&R at 24-34. He concluded that petitioner's claim is "meritless" under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). Judge Katz found counsel's performance met the Strickland standard, and noted that a strategy is not shown to be bad merely because it ultimately fails.. Additionally, given the facts and allegations against Petitioner, Judge Katz noted that Petitioner received a relatively favorable plea deal. This supported his conclusion that Petitioner's counsel met at least an objective standard of reasonableness in representing Petitioner.

C. O'Kane's Objections

Petitioner submitted his Objections to Judge Katz's R&R on April 15, 2011. Petitioner reiterated the arguments that he made in his original petition, including: (A) that the police officers did not have probable cause to search him; (B) that Detective Deshazo's testimony regarding where the drugs were found was false and inadmissible; (C) that Petitioner never stated that the jacket was his; (D) that Petitioner never cooperated in the trial proceedings; and (E) that his counsel at trial was ineffective. Petitioner also included several exhibits with excerpts from proceedings in the case in support of his arguments.


A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); New York Dist. Council of Carpenters Pension Fund v. Perimeter Interiors, Inc., 657 F. Supp. 2d 410, 414 (S.D.N.Y. 2009). This Court reviews de novo those parts of the R&R to which objections are made, and reviews the remainder for clear error. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Perimeter Interiors, 657 F. Supp. 2d at 414. "When a party makes only generalized or conclusory objections, or simply reiterates his original arguments, the Court reviews a magistrate judge's report and recommendation for clear error." Perimeter Interiors, 657 F. Supp. 2d at 414. "The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections." Dotson v. Zenon, 549 F. Supp. 2d 1291, 1299 (D. Colo. 2008) (Citations ...

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