Brett Howard v. Warden, Lieber Correctional

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6696
BRETT HOWARD,
Petitioner - Appellant,
v.
WARDEN, LIEBER CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Aiken.
Timothy M. Cain, District Judge. (1:18-cv-02234-TMC)
Submitted: August 22, 2019 Decided: August 27, 2019
Before KING and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Brett Howard, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brett Howard seeks to appeal the district court’s order adopting the magistrate
judge’s recommendation to dismiss Howard’s 28 U.S.C. § 2254 (2012) petition. The
district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B)
(2012). The magistrate judge recommended that Howard’s petition be dismissed and
advised Howard that failure to file timely and specific objections to the recommendation
would waive appellate review of a district court order based upon the recommendation.
The district court’s order is not appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012). 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) (2012). When the district court denies relief on the merits,
a prisoner satisfies this standard by demonstrating that reasonable jurists would find that
the district court’s assessment of the constitutional claims is debatable or wrong. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-
38 (2003). When the district court denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is debatable, and that the petition
states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.
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. See Wright v. Collins,
766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985).
Howard waived appellate review of the district court’s disposition by failing to file specific
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objections to the magistrate judge’s dispositive recommendations. Howard also fails to
challenge the district court’s dispositive rationale in his informal brief, which further
supports the conclusion that he has waived appellate review of the appealed-from order.
See 4th Cir. R. 34(b).
Accordingly, we deny a certificate of appealability and dismiss this appeal. We
deny Howard’s application to proceed in forma pauperis. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
DISMISSED
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