MILLER v. Chief Beatty; Scarlet Wilson; Preliminary Hearing Court Transcript Records; Judge Gosnell; Atty Patricia Kennedy, Respondents. (2018)

Keith Miller, a South Carolina pretrial detainee, seeks to appeal the district court's order accepting the recommendation of the magistrate judge and dismissing Miller's 28 U.S.C. § 2241 (2012) petition without prejudice.^* The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2012). The magistrate judge recommended that relief be denied and advised Miller that failure to file timely specific objections to this recommendation would waive appellate review of a district court order based upon 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 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Miller 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 this court and argument would not aid the decisional process.

DISMISSED

FOOTNOTES

FOOTNOTE.   The district court improperly characterized Miller's pleading as a 28 U.S.C. § 2254 (2012) petition. Petitions by state pretrial detainees like Miller are properly construed as 28 U.S.C. § 2241 (2012) petitions. In re Wright, 826 F.3d 774, 782 (4th Cir. 2016).

PER CURIAM:

Dismissed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.