William Smith v. Harold Clarke , 461 F. App'x 341 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7266
WILLIAM ORLANDO SMITH,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Virginia Department of
Corrections,
Respondent - Appellee.
No. 11-7467
WILLIAM ORLANDO SMITH,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Virginia Department of
Corrections,
Respondent - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Tommy E. Miller, Magistrate
Judge; Raymond A. Jackson, District Judge. (2:11-cv-00162-RAJ-
TEM)
Submitted: January 10, 2012 Decided: January 13, 2012
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
William Orlando Smith, Appellant Pro Se. Josephine Frances
Whalen, Assistant Attorney General, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In No. 11-7266, William Orlando Smith seeks to appeal
the magistrate judge’s recommendation to dismiss Smith’s 28
U.S.C. § 2254 (2006) petition. This court may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2006),
and certain interlocutory and collateral orders, 28 U.S.C.
§ 1292 (2006); Fed. R. Civ. P. 54(b). The magistrate judge’s
recommendation is neither a final order nor an appealable
interlocutory or collateral order. See Haney v. Addison, 175
F.3d 1217, 1219 (10th Cir. 1999) (“[a]bsent both designation by
the district court and consent of the parties, a magistrate
judge’s recommendation is not a final appealable decision”).
Accordingly, we dismiss the appeal for lack of jurisdiction.
In No. 11-7467, Smith seeks to appeal the district
court’s order dismissing as untimely his 28 U.S.C. § 2254 (2006)
petition. The district court referred this case to a magistrate
judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp.
2011). The magistrate judge recommended that relief be denied
and advised Smith that failure to file timely objections to this
recommendation could waive appellate review of a district court
order based upon the recommendation.
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
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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). Smith
has waived appellate review by failing to timely file objections
after receiving proper notice. * Accordingly, we deny a
certificate of appealability and dismiss the appeal.
We deny Smith’s motions for appointment of counsel.
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.
DISMISSED
*
To the extent Smith’s notice of appeal in No. 11-7266 can
be considered his objections to the magistrate judge’s report
and recommendation, we discern no persuasive argument that would
have warranted a different outcome before the district court.
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