Robert Smart v. Cecilia Reynolds, No. 09-8262 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8262 ROBERT Smart, DALE SMART, a/k/a Robert Smart, a/k/a Robert D. Petitioner Appellant, v. CECILIA REYNOLDS, Warden Kershaw Correctional Institution, Respondent Appellee. No. 10-6227 ROBERT Smart, DALE SMART, a/k/a Robert Smart, a/k/a Robert D. Petitioner Appellant, v. CECILIA REYNOLDS, Warden Kershaw Correctional Institution, Respondent Appellee. Appeals from the United States District Court for the District of South Carolina, at Anderson. G. Ross Anderson, Jr., Senior District Judge. (8:08-cv-03918-GRA) Submitted: August 26, 2010 Decided: August 31, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Robert Dale Smart, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General; Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Robert Dale Smart seeks to appeal the district court s order denying relief on his 28 U.S.C. § 2254 (2006) reconsideration. petition to petition The a and district magistrate the court judge court s order Smart s referred pursuant § 636(b)(1)(B) (West 2006 & Supp. 2010). denying § 2254 to 28 U.S.C.A. The magistrate judge recommended that relief be denied and advised Smart that failure to file timely and specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation. The magistrate timely judge s filing of specific recommendation is objections necessary to to a preserve appellate review of the substance of that recommendation when the parties have noncompliance. been warned of the consequences of Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Smart has waived appellate review of the claims raised in his § 2254 petition by failing to file timely and specific objections after receiving proper notice. Turning order unless denying a Smart s appeal reconsideration, circuit appealability. to justice of the judge of the order issues district is a not court s appealable certificate of 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 3 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. (2006); Slack v. McDaniel, 529 U.S. 28 U.S.C. § 2253(c)(2) 473, 484-85 (2000); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). see We have independently reviewed the record and conclude that Smart has not made the requisite showing. Accordingly, we deny Smart s pending motions, deny a certificate dispense of with appealability, and oral because argument dismiss the the appeals. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 4
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