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United States Court of Appeals, Fourth Circuit.

Brandon Wayne THOMAS, Petitioner-Appellant, v. Harold W. CLARKE, Director, Virginia Department of Corrections, Respondent-Appellee.

Brandon Wayne Thomas, Petitioner-Appellant, v. Harold W. Clarke, Director, Virginia Department of Corrections, Respondent-Appellee.

No. 20-7271, No. 20-7550

Decided: January 22, 2021

Before AGEE, WYNN, and DIAZ, Circuit Judges. Brandon Wayne Thomas, Appellant Pro Se.

In these consolidated cases, Brandon Wayne Thomas seeks to appeal the district court's orders denying relief on his 28 U.S.C. § 2254 petition and dismissing his motion for reconsideration. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that Thomas’ § 2254 petition be dismissed and advised Thomas that failure to file timely objections to the recommendation would waive appellate review of a district court order based upon the recommendation. The district court adopted the magistrate judge's recommendation after Thomas failed to file objections with the court. Thomas thereafter filed a notice of appeal as to the court's order, as well as a motion for reconsideration, which the district court dismissed.

The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). 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). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists could find the district court's assessment of the constitutional claims debatable or wrong. See Buck v. Davis, ––– U.S. ––––, 137 S. Ct. 759, 773-74, 197 L.Ed.2d 1 (2017). 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. Gonzalez v. Thaler, 565 U.S. 134, 140-41, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

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). Thomas waived appellate review of the district court's dismissal of his § 2254 petition by failing to file timely objections to the magistrate judge's recommendation to dismiss the petition. Thomas has also forfeited this court's review of the appealed-from orders by failing to challenge the district court's dispositive rationale in his informal briefs. See 4th Cir. R. 34(b).

Accordingly, we deny a certificate of appealability and dismiss the appeals. 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 by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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