US v. Norman Kerr, No. 12-7082 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7082 UNITED STATES OF AMERICA, Plaintiff Appellee, v. NORMAN ALAN KERR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:09-cr-00290-NCT-1; 1:11-cv00382-NCT-JEP) Submitted: October 16, 2012 Decided: October 23, 2012 Before AGEE, DAVIS, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Norman Alan Kerr, Appellant Pro Se. Robert Albert Jamison Lang, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Norman Alan Kerr seeks to appeal the district court s order dismissing his 28 U.S.C.A. § 2255 (West Supp. 2012) motion without prejudice to his right to refile the motion on the proper forms following the conclusion of his direct appeal. * The district court referred this case to a magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp. 2012). The magistrate judge recommended that the motion be dismissed and advised Kerr that the 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 been warned of the consequences of noncompliance. Diamond v. Colonial Life & Accident Ins. Co., 416 315-16 F.3d 310, (4th Cir. 2005); 766 F.2d 841, 845-46 (4th Cir. 1985). * Wright v. Collins, Kerr has waived appellate The district court clerk treated Kerr s notice of appeal as seeking to appeal the district court s March 23, 2012 order adopting the magistrate judge s recommendation to dismiss Kerr s § 2255 motion. To the extent Kerr seeks in the present appeal to challenge the district court s rulings at resentencing in May 2012, his arguments are more properly raised in the pending direct appeal of the district court s amended judgment. That appeal has been assigned case No. 12-4775. 2 review of objections the to district the magistrate receiving proper notice. appealability, court s deny order by judge s failing to recommendation file after Accordingly, we deny a certificate of Kerr s motion to appoint counsel, and dismiss the appeal. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3
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