UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 file timely objections to the magistrate judge’s
recommendation. The district court accepted the 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 were received by the district court two days
later and, in a second order, the district court 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 timely filing of specific objections to a
magistrate judge’s recommendation is necessary to 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).
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appellate review of the substance of that recommendation when
the parties have been warned of the consequences of
noncompliance. See Wells v. Shriners Hosp., 109 F.3d 198, 201
(4th Cir. 1997); Wright v. Collins, 766 F.2d 841, 845-46
(4th Cir. 1985). The district court was under no obligation to
consider 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, 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
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