Bradley v. Bodison ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8041
FREDDIE BRADLEY,
Petitioner – Appellant,
v.
MCKITHER BODISON,
Respondent – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. R. Bryan Harwell, District Judge.
(3:08-cv-03352-RBH)
Submitted: August 19, 2010 Decided: August 26, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Freddie Bradley, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Bradley seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2006) petition for
a writ of habeas corpus. The district court referred this case
to a magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B)
(West Supp. 2010). The magistrate judge recommended that relief
be denied and advised Bradley that failure to file timely
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 Thomas v. Arn, 474 U.S. 140, 146-48 (1985).
Bradley has waived appellate review by failing to timely file
objections after receiving proper notice. 1 Wells v. Shriners
1
Bradley acknowledges our waiver rule and does not dispute
that his failure to object to the magistrate judge’s
recommendation within the time limit would ordinarily constitute
a waiver of his right to appeal. He nonetheless contends that
he has shown excusable neglect for his failure to timely object.
Although we have recognized that “the [waiver] rule is not
absolute,” Wright, 766 F.2d at 845, we have thus far recognized
an exception only in the limited context of “procedural ambush,”
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Specifically, we have held that a pro se litigant's failure to
object will not bar an appeal if the litigant “received no
(Continued)
2
Hosp., 109 F.3d 198, 201 (4th Cir. 1997) (“The law in this
circuit is clear. If written objections to a magistrate judge's
recommendations are not filed with the district court within ten
days,[2] a party waives its right to an appeal.”). 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
notice of the consequences of a failure to object to the
magistrate's report.” Wright, 766 F.2d at 846-47. Bradley was
not procedurally ambushed, and, insofar as he suggests that we
create an exception to the waiver rule for excusable neglect, we
decline the invitation.
2
On December 1, 2009, after the entry of the district
court’s order, the ten-day period became fourteen days.
See Statutory Time-Periods Technical Amendments Act of 2009,
Pub. L. No. 111-16, § 6, 123 Stat. 1607, 1608 (2009) (codified
at 28 U.S.C.A. § 636(b)(1)).
3