Smith v. Rushton, (4th Cir. 2006)

Status: Not Published

Docket Number: 06-6785

Linked as:

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-6785

DAVID DWIGHT SMITH,

Petitioner - Appellant,

versus

COLLIE RUSHTON, Warden; HENRY MCMASTER,

Attorney General,

Respondents - Appellees.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. G. Ross Anderson, Jr., District

Judge. (6:06-cv-00338-GRA)

Submitted: September 26, 2006 Decided: October 2, 2006

Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

David Dwight Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: David Dwight Smith seeks to appeal the district court's order adopting the recommendation of the magistrate judge and dismissing his 28U.S.C. § 2254 (2000) petition without prejudice.

The district court referred this case to a magistrate judge pursuant to 28U.S.C. § 636(b)(1)(B) (2000). The magistrate judge recommended that relief be denied and advised Smith that failure to file timely and specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Smith's objections to the magistrate judge's recommendation were non-specific.

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). Smith has waived appellate review by failing to timely file specific objections after receiving proper notice.

Accordingly, we deny a certificate of appealability and Smith's motion for appointment of counsel, 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