NELSON S. ROMÁN, District Judge.
Eric Sanabria ("Petitioner"), proceeding pro se, had filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 before this Court. ("Petition," ECF No. 2.) Following a jury trial in 2011, Petitioner was convicted on two counts of criminal possession of stolen property in the fourth degree. Petitioner was sentenced to concurrent terms of imprisonment of two to four years on each count, to run consecutive to an eight-year sentence connected to an unrelated conviction. Currently pending before the Court is a Report and Recommendation ("R&R") issued by Magistrate Judge Judith C. McCarthy, pursuant to 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), recommending that the Petition be denied and that no certificate of appealability be issued. (ECF No. 18.) For the following reasons, the Court adopts the R&R, and the Petition is DENIED.
The Court presumes familiarity with the factual and procedural background of this case, the underlying criminal proceeding, and Petitioner's collateral state challenges.
Following Petitioner's convictions and the exhaustion of his state court appeals, he timely filed a Petition for a writ of habeas corpus on February 22, 2015. (ECF No. 2.) Through his Petition, Petitioner alleged that he was deprived of his due process rights to effective assistance of counsel and that the government did not present legally sufficient evidence to convict him of two counts of criminal possession of stolen property in the fourth degree. He also alleged that he was deprived of a fair trial due to prosecutorial misconduct and that his sentencing was improper. Respondent filed on opposition to the Petition on June 15, 2015, (ECF No. 12), and Petitioner did not submit a reply.
On February 8, 2019, Judge McCarthy issued a R&R pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), recommending that the petition be denied. (ECF No. 18.) Petitioner's objections were due by February 22, 2019, but none were filed.
A magistrate judge may "hear a pretrial matter [that is] dispositive of a claim or defense" if so designated by a district court. Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1)(B). In such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate, proposed findings of fact." Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1). Where a magistrate judge issues a report and recommendation,
28 U.S.C. § 636(b); accord Fed. R. Civ. P. 72(b)(2), (3). However, "[t]o 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." Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003) (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985) (internal quotation marks omitted); accord Feehan v. Feehan, No. 09-CV-7016(DAB), 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011); see also Fed. R. Civ. P. Rule 72 advisory committee note (1983 Addition, Subdivision (b)) ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
Here, the R&R was issued on February 9, 2019 and the deadline for filing objections was February 22, 2019. Because Petitioner failed to file any objections, the Court reviews Judge McCarthy's R&R for clear error and finds none. As Judge McCarthy noted, Petitioner's trial counsel's decision to forego an opening statement, call witnesses, or engage in cross examination were strategic and fell short of the ineffective assistance of counsel standard outlined in Strickland v. Washington, 466 U.S. 668, 685-87 (1984). The Court also agrees that Petitioner's legal insufficiency of the evidence, prosecutorial misconduct, and improper sentence claims are procedurally barred from federal review because a state court determined that the claims were unpreserved for appellate review, which is an independent and adequate state ground.