John Darby v. State of South Carolina, No. 09-7244 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7244 JOHN H. DARBY, Petitioner Appellant, v. STATE OF SOUTH CAROLINA; WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION, Respondents Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cv-02931-CMC) Submitted: November 24, 2009 Decided: December 11, 2009 Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. John H. Darby, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John H. Darby seeks to appeal the district court s orders 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. § 636(b)(1)(B) (2006). The magistrate judge recommended that relief be denied and advised Darby that failure to file timely objections to this recommendation could waive appellate review of a district court order based on the recommendation. Despite this warning, Darby failed to to file timely recommendation. The objections district court the magistrate accepted the judge s magistrate judge s recommendation and dismissed the petition. On the same day as the district court s dismissal order, Darby filed objections to the magistrate judge s report. * The objections later and, in were a received second by order, the the district district court court two days considered Darby s untimely objections, found them to be without merit, and affirmed its previous denial of § 2254 relief. Darby timely appealed both orders. The magistrate timely judge s filing of recommendation * specific is objections necessary to to a preserve We deem Darby s objections filed on the date he delivered them to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270-72 (1988). 2 appellate review of the substance of that recommendation when the parties have noncompliance. (4th Cir. warned of the consequences of See Wells v. Shriners Hosp., 109 F.3d 198, 201 1997); (4th Cir. 1985). consider been Wright v. Collins, 766 F.2d 841, 845-46 The district court was under no obligation to Darby s objections because they were untimely. Moreover, the fact that the district court ultimately considered the untimely objections does not excuse the applicability of the waiver rule. See Wells, 109 F.3d at 201 ( 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, a party waives its right to an appeal. ). By failing to file timely objections after receiving proper notice, Darby has waived appellate review of both of the district court s orders. Accordingly, and dismiss the appeal. we deny a certificate of appealability 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 3
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