Ricky Shepard v. Warden of Perry Correctional I ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7133
RICKY JAMES SHEPARD, a/k/a Rickey James Shepard,
Petitioner - Appellant,
v.
WARDEN OF PERRY CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Florence.
Mary G. Lewis, District Judge. (4:21-cv-00818-MGL)
Submitted: October 29, 2021 Decided: December 6, 2021
Before THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ricky James Shepard, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky James Shepard seeks to appeal the district court’s order dismissing as
successive his 28 U.S.C. § 2254 petition. The district court referred this case to a
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge
recommended dismissing the petition as successive and advised Shepard that failure to file
timely, specific objections to this recommendation could waive appellate review of a
district court order based upon the recommendation. The district court denied the § 2254
petition as a successive petition for which Shepard had not obtained authorization from this
Court to file.
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. Martin v. Duffy, 858
F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see
also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). Although Shepard received proper
notice and filed objections to the magistrate judge’s recommendation, he has waived
appellate review because the objections only argued the merits of his claims, and were not
specific to the particularized recommendations made by the magistrate judge that the
petition was successive. Accordingly, we deny a certificate of appealability and dismiss
the appeal.
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We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
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