Carr v. Haines , 193 F. App'x 205 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6598
DAVID CARR,
Petitioner - Appellant,
versus
WILLIAM S. HAINES, Warden, Huttonsville
Correctional Center,
Respondent - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CA-01-1257)
Submitted: June 30, 2006 Decided: August 2, 2006
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Carr, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Carr seeks to appeal the district court’s orders
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 in part and recommended holding an
evidentiary hearing on several claims. The magistrate judge
advised Carr that failure to file timely objections to this
recommendation could waive appellate review of a district court
order based upon the recommendation. Despite this warning, Carr
failed to timely object to the magistrate judge’s 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). Carr has waived appellate review by failing to
timely file specific objections after receiving proper notice.
After the magistrate judge held the evidentiary hearing
on the remaining claims, she submitted proposed findings and
recommendation to the district court to dismiss the remaining
claims. After Carr filed timely objections to this second
magistrate judge’s report, the district court conducted a de novo
review of the evidentiary hearing claims. The court accepted the
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recommendation of the magistrate judge, denied the 28 U.S.C. § 2254petition, and dismissed the case.
The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). 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) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Carr has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. 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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