Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kadarko v. Lempke

United States District Court, S.D. New York

February 25, 2014

JAMES KADARKO, Petitioner,
JOHN B. LEMPKE, Respondent.



On April 29, 2011, petitioner James Kadarko ("petitioner" or "Kadarko")[1] filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C, § 2254. (ECF No. 2.) The petition seeks relief from Kadarko's November 2, 2006 conviction of robbery in the first degree. Kadarko was sentenced to 12 years in prison followed by five years of post-release supervision.

On October 9, 2008, the Appellate Division, First Department reversed Kadarko's conviction and ordered a new trial. People v. Kadarko , 867 N.Y.S.2d 32 (1st Dep't 2008). The First Department held that the trial court failed to provide sufficiently meaningful notice to counsel of the specific contents of a jury note. Id. at 36. On April 6, 2010, the New York Court of Appeals reversed the First Department and remanded the case for consideration of facts and issues raised but not determined by the Court of Appeals. People v. Kadarko , 902 N.Y.S.2d 828 (2010). The Court of Appeals held that the trial court's failure to read the jury note aloud did "not amount to a failure to provide counsel with meaningful notice of the contents of the jury note or an opportunity to respond." Id. at 828. On May 27, 2010, the First Department affirmed petitioner's conviction and sentence. People v. Kadarko. 901 N.Y.S.2d 612 (1st Dep't 2010) . On September 1, 2010, the New York Court of Appeals denied petitioner leave to appeal. People v. Kadarko. 901 N.Y.S.2d 612 (2010) . Kadarko is currently incarcerated pursuant to the trial court's November 2, 2006 conviction.

As aforementioned, Kadarko filed his habeas petition on April 29, 2011. On May 11, 2011, the Court Ordered the respondent to answer; on May 16, 2011, this matter was referred to The Honorable Ronald L. Ellis to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b). (ECF Nos. 4, 6.) On November 7, 2011, respondent answered (ECF No. 12), and on November 16, 2011, this matter was reassigned to the undersigned (ECF No. 17); the Report and Recommendation reference remained in place.

On June 14, 2013, Magistrate Judge Ellis issued a Report and Recommendation recommending that petitioner's request for habeas relief be denied. (ECF No. 22.) On July 12, 2013, petitioner requested and was granted an extension of time to file objections to the Report and Recommendation. (ECF No. 23.) On August 19, 2013, petitioner filed his objections. (ECF No. 24.)[2]


In reviewing a Report and Recommendation, 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)(C). When specific objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); United States v. Male Juvenile , 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." King v. Greiner, No. 02 Civ. 5810 , 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (internal quotation marks and citation omitted). The same standard applies if a petitioner's objections are "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition." Kelly v. Lempke, No. 08 Civ. 8241, 2012 WL 5427909, at *1 (Nov. 7, 2012) (quotation marks omitted).

"The Court is mindful that pro se parties are generally accorded leniency when making objections." Jones v. Smith, No. 09 Civ. 6497, 2012 WL 1592190, at *1 (S.D.N.Y. May 7, 2012) (citations omitted). Nonetheless, "to trigger de novo review, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate judge's report." Id.

In this case, petitioner's August 19, 2013 objections raise essentially the same arguments set forth in his original petition: (1) that the use of evidence at trial concerning uncharged crimes was improper, in particular because the court failed to provide a limiting instruction; and (2) that a "mode of proceedings"[3] error occurred because the contents of a note from the jury were not timely read aloud to counsel. To the extent that the arguments raised in petitioner's objections, read liberally, "simply reiterate arguments considered and rejected" in the Report and Recommendation, the Court finds that they do not necessitate de novo review. See id. at *2.

Petitioner does raise one particularized objection to the Report and Recommendation, however. Petitioner argues that the Report and Recommendation is incorrect insofar as Magistrate Judge Ellis relies on the contemporaneous objection rule to support his finding that petitioner's claims are procedurally barred. Petitioner argues that the contemporaneous objection rule does not bar his claims because his attorney made sufficient, timely objections (particularly with respect to the use of the evidence of uncharged crimes); according to petitioner, additional objections by his counsel would have amounted to "pointless protest."

Accordingly, the Court reviews the section discussing whether petitioner's claims are procedurally barred de novo, but reviews the merits portion of Magistrate Judge Ellis's Report and Recommendation under a clear error standard.


A. De Novo Review of Contemporaneous Objection Issue

a. Failure to reveal the contents of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.