William Smith v. Harold Clarke

U.S. Court of Appeals for the Fourth Circuit January 13, 2012

William Smith v. Harold Clarke, 461 F. App'x 341 (4th Cir. 2012)

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

In No. 11-7266, William Orlando Smith seeks to appeal the magistrate judge’s recommendation to dismiss Smith’s 28 U.S.C. § 2254 (2006) petition. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b). The magistrate judge’s recommendation is neither a final order nor an appealable interlocutory or collateral order. See Haney v. Addison, 175 F.3d 1217, 1219 (10th Cir. 1999) (“[ajbsent both designation by the district court and consent of the parties, a magistrate judge’s recommendation is not a final appealable decision”). Accordingly, we dismiss the appeal for lack of jurisdiction.

In No. 11-7467, Smith seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The district court referred this case to a magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp. 2011). The magistrate judge recommended that relief be denied and advised Smith 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 also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Smith has waived appellate review by failing to timely file objections after receiving proper notice. * Accordingly, we deny a certificate of appealability and dismiss the appeal.

We deny Smith’s motions for appointment of counsel. 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.

To the extent Smith's notice of appeal in No. 11-7266 can be considered his objections to the magistrate judge’s report and recommendation, we discern no persuasive argument that would have warranted a different outcome before the district court.

Reference

Full Case Name: William Orlando SMITH, Petitioner—Appellant, v. Harold W. CLARKE, Director, Virginia Department of Corrections, Respondent—Appellee; William Orlando Smith, Petitioner-Appellant, v. Harold W. CLARKE, Director, Virginia Department of Corrections, Respondent—Appellee
Status: Unpublished