United States v. Geiger ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6404
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERICK A. GEIGER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (2:01-cr-00261-5; 2:05-cv-00166)
Submitted: July 31, 2007 Decided: August 17, 2007
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derick A. Geiger, Appellant Pro Se. Michael Lee Keller, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derick A. Geiger seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion. 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 granted in part and advised
Geiger that the failure to file timely objections to this
recommendation could waive appellate review of a district court
order based upon the recommendation. Despite this warning, Geiger
failed to 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). Geiger has waived appellate review by failing to
timely file specific objections after receiving proper notice.*
*
To the extent Geiger claims for the first time on appeal that
counsel failed to file a petition for panel and en banc rehearing
in the appeal of the criminal judgment, we decline to address this
claim. See U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d
275, 283 (4th Cir. 2006) (“Generally, an issue raised for the first
time on appeal will not be considered, unless the refusal to
consider it would result in a fundamental miscarriage of
justice.”). In addition, because Geiger did not challenge in his
informal brief the district court’s rejection of the claim that
counsel provided ineffective assistance by failing to file a timely
petition for writ of certiorari as requested by Geiger, we find
that he has waived appellate review of that issue. See 4th Cir. R.
(continued...)
- 2 -
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
*
(...continued)
34(b) (“The Court will limit its review to the issues raised in the
informal brief.”).
- 3 -