Owens v. Padula , 232 F. App'x 323 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6063
MICHAEL OWENS,
Petitioner - Appellant,
versus
ANTHONY J. PADULA, Warden, Lee Correctional
Institution; JON OZMINT, Director, South
Carolina Department of Corrections; HENRY
MCMASTER, Attorney General of South Carolina,
Respondents - Appellees.
No. 07-6603
MICHAEL OWENS,
Petitioner - Appellant,
versus
ANTHONY J PADULA, Warden Lee Correctional
Institution; JON OZMINT; HENRY MCMASTER,
Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. G. Ross Anderson, Jr., District
Judge. (2:06-cv-00639-GRA)
Submitted: May 30, 2007 Decided: July 9, 2007
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 07-6063 dismissed; No. 07-6603 vacated by unpublished per
curiam opinion.
Michael Owens, Appellant Pro Se. Derrick K. McFarland, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In No. 07-6063, Michael Owens seeks to appeal the
district court’s order denying relief on his 28 U.S.C. § 2254(2000) petition. The district court referred this case to a
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2000). The
magistrate judge recommended that relief be denied and advised
Owens that failure to file timely, specific objections to this
recommendation could waive appellate review of a district court
order based upon the recommendation. Despite this warning, Owens
failed to specifically object to the magistrate judge’s
recommendation.1
The timely filing of specific objections to a magistrate
judge’s recommendation is necessary to preserve appellate review of
the substance of that recommendation when the parties have been
warned of the consequences of noncompliance. Wright v. Collins,
766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474
U.S. 140 (1985). Owens has waived appellate review by failing to
timely file specific objections after receiving proper notice.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
1
Owens did not object to the substance of the magistrate’s
report, which determined that Owens’ claims were procedurally
defaulted. Instead of addressing his default, Owens’ objections
argued the merits of his § 2254 petition.
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In No. 07-6603, Owens appeals the district court’s order
denying his motion for leave to appeal in forma pauperis. The
district court denied the motion based on its finding that Owens’
notice of appeal in case number 2:06-cv-00639-GRA was untimely.
Because Owens noted a timely appeal from the denial of his § 2254
petition,2 however, we grant leave to proceed in forma pauperis,
deny a certificate of appealability and vacate the order of the
district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
No. 07-6063 - DISMISSED
No. 07-6603 - VACATED
2
The district court’s final order denying § 2254 relief was
entered on November 22, 2006. Owens gave his notice of appeal to
prison officials for mailing on December 21, 2007. Under the rule
of Houston v. Lack, 487 U.S. 266 (1988), the notice of appeal is
deemed filed on December 21. It was therefore timely under Fed. R.
App. P. 4(a)(1)(A).
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