UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1427
BARBARA KELLY,
Petitioner - Appellant,
versus
GEORGE GINITOL, Director, South Carolina
Department of Mental Health; MR. COOPER,
Director Columbia Care Center; CHARLES CONDON,
Attorney General,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Patrick Michael Duffy, District Judge.
(CA-02-2333)
Submitted: June 19, 2003 Decided: June 24, 2003
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Barbara Kelly, Appellant Pro Se. Donald John Zelenka, Chief Deputy
Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Barbara Kelly seeks to appeal the district court’s order
adopting the report and recommendation of the magistrate judge and
dismissing her petition for a writ of habeas corpus filed under 28
U.S.C. § 2241 (2000).* An appeal may not be taken from the final
order in a habeas corpus proceeding unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). When, as here, a district court dismisses a § 2241 petition
solely on procedural grounds, a certificate of appealability will
not issue unless the petitioner can demonstrate both “(1) ‘that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right’ and
(2) ‘that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.’” Rose v. Lee,
252 F.3d 676, 684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)), cert. denied, 534 U.S. 941 (2001).
The district court referred this case to a magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) (2000). The magistrate judge
recommended that relief be denied and advised Kelly that failure to
file timely objections to this recommendation could waive appellate
review of a district court order based upon the recommendation.
*
Although the petition was filed on a form for relief under
28 U.S.C. § 2254 (2000), the district court construed the motion
under § 2241. See Braden v. 30th Judicial Cir. Ct., 410 U.S. 484,
489-90 (1973).
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Despite this warning, Kelly failed to object to the magistrate
judge’s 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 that failure to object will waive appellate review. See
Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also
Thomas v. Arn, 474 U.S. 140 (1985). Kelly has waived appellate
review by failing to file objections after receiving proper notice.
Because jurists of reason would not find this point debatable, 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 the court and
argument would not aid the decisional process.
DISMISSED
3