Smart v. Reynolds ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8262
ROBERT DALE SMART, a/k/a Robert Smart, a/k/a Robert D.
Smart,
Petitioner – Appellant,
v.
CECILIA REYNOLDS, Warden Kershaw Correctional Institution,
Respondent – Appellee.
No. 10-6227
ROBERT DALE SMART, a/k/a Robert Smart, a/k/a Robert D.
Smart,
Petitioner – Appellant,
v.
CECILIA REYNOLDS, Warden Kershaw Correctional Institution,
Respondent – Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:08-cv-03918-GRA)
Submitted: August 26, 2010 Decided: August 31, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Robert Dale Smart, Appellant Pro Se. Donald John Zelenka,
Deputy Assistant Attorney General; Alphonso Simon, Jr., OFFICE
OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Robert Dale Smart seeks
to appeal the district court’s order denying relief on his 28
U.S.C. § 2254 (2006) petition and the court’s order denying
reconsideration. The district court referred Smart’s § 2254
petition to a magistrate judge pursuant to 28 U.S.C.A.
§ 636(b)(1)(B) (West 2006 & Supp. 2010). The magistrate judge
recommended that relief be denied and advised Smart that failure
to file timely and specific 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
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). Smart
has waived appellate review of the claims raised in his § 2254
petition by failing to file timely and specific objections after
receiving proper notice.
Turning to Smart’s appeal of the district court’s
order denying reconsideration, the order is not appealable
unless a circuit justice of judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,
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369 F.3d 363, 369 (4th Cir. 2004). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); see
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). We have
independently reviewed the record and conclude that Smart has
not made the requisite showing.
Accordingly, we deny Smart’s pending motions, deny a
certificate of appealability, and dismiss the appeals. 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
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