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HOWARD v. WARDEN LIEBER CORRECTIONAL INSTITUTION (2019)

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United States Court of Appeals, Fourth Circuit.

Brett HOWARD, Petitioner - Appellant, v. WARDEN, LIEBER CORRECTIONAL INSTITUTION, Respondent - Appellee.

No. 19-6696

Decided: August 27, 2019

Before KING and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Brett Howard, Appellant Pro Se.

Brett Howard seeks to appeal the district court's order adopting the magistrate judge's recommendation to dismiss Howard's 28 U.S.C. § 2254 (2012) petition. 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 Howard's petition be dismissed and advised Howard that failure to file timely and specific objections to the recommendation would waive appellate review of a district court order based upon the recommendation.

The district court's order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595.

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. See 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). Howard waived appellate review of the district court's disposition by failing to file specific objections to the magistrate judge's dispositive recommendations. Howard also fails to challenge the district court's dispositive rationale in his informal brief, which further supports the conclusion that he has waived appellate review of the appealed-from order. See 4th Cir. R. 34(b).

Accordingly, we deny a certificate of appealability and dismiss this appeal. We deny Howard's application to proceed in forma pauperis. 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

PER CURIAM:

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

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