The opinion of the court was delivered by: Stephen C. Robinson, District Judge
ORDER ACCEPTING REPORT AND RECOMMENDATION
This case was referred to Magistrate Judge George A. Yanthis for issuance of a Report and Recommendation. Pro se petitioner Jacinto Santana ("Petitioner"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on the grounds that he received ineffective assistance of appellate counsel and that his sentence was unconstitutional. For the reasons set forth below, this Court affirms Judge Yanthis's Report and Recommendation denying Petitioner's application.
In December 1989, Petitioner was indicted on one count of possession with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 845a(a). On December 23, 1989, Petitioner pled not guilty and was released on bail. He failed to appear in court for his March 1990 trial date, and a bench warrant was issued for his arrest. In June 1993, Petitioner was indicted for failing to appear before the court as a condition of his release in violation of 18 U.S.C. §§ 3146(a)(1) and 3146(b)(1)(A)(i). Petitioner was apprehended in September 2002, over 12 years after missing his initial trial date.
Petitioner pled guilty to both indictments in May 2003, and Judge John S. Martin sentenced Petitioner to two concurrent terms of 57 months of imprisonment followed by concurrent terms of supervised release of eight years for the drug conviction and three years for the failure-to-appear conviction.
Counsel filed two notices of appeal, one for each conviction, which were consolidated at Petitioner's counsel's request by an order of the Second Circuit dated December 9, 2003. Petitioner's counsel did not raise any argument in his supporting brief regarding Petitioner's failure-to-appear conviction. Rather, the brief focused on the district court's denial of Petitioner's motion for an offense level reduction when calculating Petitioner's sentence. The Second Circuit affirmed the decision of the district court on March 24, 2004, and concluded that Petitioner waived any claim regarding the failure-to-appear conviction. United States v. Santana, 91 Fed. Appx. 191 (2d Cir. 2004). Petitioner did not appeal this decision to the Supreme Court.
In reviewing a report and recommendation, a 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). "To accept the report and recommendation of a magistrate, 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." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). Since Petitioner in the instant case made a timely objection to the Report and Recommendation, this Court is required to make a de novo determination as to the aspects of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-74 (1980); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petitioner objects to the report and recommendation inasmuch as it denies his ineffective assistance of counsel claim. This court will review this claim de novo. As there was no objection beyond that, Judge Yanthis's report and recommendation regarding Petitioner's sentencing claim will be reviewed for clear error.
A. Ineffective Assistance of Counsel
Petitioner claims he was denied effective assistance of counsel because his counsel failed to raise any argument on appeal regarding his failure-to-appear conviction. A successful ineffective assistance of counsel claim must demonstrate that the attorney's performance "fell below an objective standard of reasonableness" and that there is a reasonable probability that, but for counsel's error, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990) (applying Strickland to claims for ineffective assistance of appellate counsel).
Appellate counsel is not required to raise every claim, but instead "may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). The constitutional right to effective assistance of counsel does not compel appointed counsel to raise every non-frivolous issue requested by the defendant -- it allows appellate counsel to use his or her professional judgment to decide which issues merit presentation to the court. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Petitioner may, however, establish an ineffective assistance claim if appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Petitioner's ineffective assistance claim fails both prongs of the Strickland standard. Petitioner does little more than argue that his counsel should have appealed the failure-to-appear conviction. He voluntarily pled guilty to the failure-to-appear charge, has not provided a ground on which his counsel could have challenged the plea, and has not shown that the proposed challenge to the failure-to-appear conviction is a "significant and obvious issue." As such, it was not unreasonable that Petitioner's counsel chose to focus exclusively on the stronger sentencing claim. Furthermore, Petitioner has not alleged how the failure to raise a challenge to the failure-to-appear conviction has prejudiced him to ...