Gary Kemp v. Joseph Noeth

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

GARY KEMP,

Petitioner, 20-CV-9121 (RA)

v. ORDER ADOPTING REPORT AND JOSEPH NOETH, RECOMMENDATION

Respondent.

RONNIE ABRAMS, United States District Judge: Petitioner Gary Kemp petitions under 28 U.S.C. § 2254 for a writ of habeas corpus setting aside his January 17, 2017 judgment of conviction. Dkt. 97 (the “Petition” or “Pet.”). The matter is referred to Magistrate Judge Sarah Netburn for habeas corpus purposes. On March 5, 2026, Judge Netburn issued a Report and Recommendation (the “Report”), Dkt. 113, recommending that the Court deny the Petition. No objections to the Report were filed. 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). “Within fourteen days after being served with a copy [of a report], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” Id.; see also Fed. R. Civ. P. 72(b). Where no timely objection has been made to a magistrate judge’s report and recommendation, “a district court need only satisfy itself that there is no clear error on the face of the record.” Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). “Furthermore, if as here . . . the magistrate judge’s report states that failure to object will preclude appellate review and no objection is made within the allotted time, then the failure to object generally operates as a waiver of the right to appellate review.” Hamilton v. Mount Sinai Hosp., 331 F. App’x 874, 875 (2d Cir. 2009). As no objections to the Report were timely filed, the Court has reviewed Judge Netburn’s Report for clear error. After careful review of the record, the Court finds no error and thus adopts the well-reasoned Report in its entirety. For the reasons stated above, the Petition is denied. The Court further certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status should be denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to terminate this case. SO ORDERED. Dated: April 20, 2026 {7 New York, New York ey Ronnie Abrams United States District Judge