Kirby v. Warden

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7082

LARRY GORDON KIRBY,

Petitioner - Appellant,

v.

WARDEN, Perry Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Henry M. Herlong, Jr., Senior
District Judge. (3:09-cv-02425-HMH)

Submitted: September 30, 2010 Decided: October 12, 2010

Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Larry Gordon Kirby, Appellant Pro Se. Roy F. Laney, Heath
McAlvin Stewart, III, RILEY, POPE & LANEY, LLC, Columbia, South
Carolina; Donald John Zelenka, Deputy Assistant Attorney
General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Larry G. Kirby seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2254 (2006) petition.

The district court referred this case to a magistrate judge

pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp. 2010).

The magistrate judge recommended that relief be denied and

advised Kirby that failure to file specific objections to this

recommendation could waive appellate review of a district court

order based upon the recommendation.

The 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 of the consequences of noncompliance. Wright v.

Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also

Thomas v. Arn, 474 U.S. 140 (1985). Kirby has waived appellate

review by failing to file specific objections after receiving

proper notice. 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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