UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DION EDWARD CHEESE, a/k/a M. C. Cheese, a/k/a
Fred Jackson,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Charles H. Haden II,
District Judge. (CR-97-155, CA-00-1209-5)
Submitted: September 29, 2003 Decided: November 3, 2003
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dion Edward Cheese, Appellant Pro Se. Michael Lee Keller, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dion Edward Cheese seeks to appeal the district court’s order
denying relief on his motion filed under 28 U.S.C. § 2255 (2000).
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. The district court adopted the
report of the magistrate judge as to two claims, but recommitted
the case for further inquiry into the third claim. The magistrate
judge issued a recommendation on that claim and advised Cheese that
the failure to file timely objections could waive appellate review
of a district court order based on that recommendation. Despite
this warning, Cheese failed to object. The district court adopted
the 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). Cheese has waived appellate
review of the claim concerning the state drug laboratory by failing
to file objections after receiving proper notice.
Cheese did timely object to the magistrate judge’s
recommendation for two claims in the initial report. An appeal may
not be taken from the final order in a § 2255 proceeding unless a
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circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2000). A certificate of appealability will
not issue for claims addressed by a district court absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, , 123 S. Ct.
1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have
independently reviewed the record and conclude that Cheese has not
made the requisite showing as to these claims.
We deny leave to proceed in forma pauperis, 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
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