Smyre v. Johnson , 197 F. App'x 216 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6727
LEROY JEROME SMYRE,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (2:05-cv-00426-WDK)
Submitted: August 24, 2006 Decided: August 31, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leroy Jerome Smyre, Appellant Pro Se. Robert H. Anderson, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leroy Jerome Smyre 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 Smyre 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, Smyre failed to object to the magistrate judge’s
recommendation that the district court dismiss Smyre’s petition as
barred by the statute of limitations.
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). Smyre has waived appellate review of the district
court’s adoption of the magistrate judge’s timeliness determination
because, despite receiving proper notice, Smyre failed to file
specific objections to the magistrate judge’s finding that his
petition was time-barred. Accordingly, we deny a certificate of
appealability, deny leave to proceed in forma pauperis, 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
the court and argument would not aid the decisional process.
DISMISSED
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