USCA4 Appeal: 21-7277 Doc: 10 Filed: 02/01/2023 Pg: 1 of 2

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-7277

DAVID G. CLARK, Petitioner - Appellant, v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:20-cv-00294-AWA-RJK)

Submitted: January 10, 2023 Decided: February 1, 2023

Before WYNN and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

David G. Clark, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 21-7277 Doc: 10 Filed: 02/01/2023 Pg: 2 of 2

PER CURIAM: David G. Clark seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2254 petition without prejudice for failure to exhaust state court remedies. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended dismissal of the petition and advised Clark that failure to file timely objections to this recommendation would waive appellate review of a district court order based upon the recommendation.

The timely filing of 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. Martin v. Duffy, 858 F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). Clark has waived appellate review by failing to file objections to the magistrate judge’s recommendation after receiving proper notice.

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 this court and argument would not aid the decisional process.

DISMISSED