Stanford Allen, Jr. v. David Ballard

Filing 920091208

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6524

STANFORD T. ALLEN, JR., Petitioner - Appellant, v. DAVID BALLARD, Warden, Respondent ­ Appellee, and THOMAS L. MCBRIDE, Warden, Respondent.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:06-cv-00597)

Submitted:

September 24, 2009

Decided:

December 8, 2009

Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Stanford T. Allen, Jr., Appellant Pro Se. Goldberg, OFFICE OF THE ATTORNEY GENERAL OF Charleston, West Virginia, for Appellee.

Robert David WEST VIRGINIA,

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Stanford T. Allen, Jr., appeals the district court's order granting summary judgment in favor of the Respondent 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. § 636(b)(1)(B) (2006). The magistrate judge recommended that

relief be denied and advised Allen that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation.

Despite this warning, Allen failed to object specifically to the magistrate judge's recommendation. The magistrate timely filing of specific is objections to to a

judge's

recommendation

necessary

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 Allen

Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985).

has waived appellate review by failing to timely file specific objections after receiving proper notice. Accordingly, we deny

leave to proceed in forma pauperis, deny Allen's motion for 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

2

before

the

court

and

argument

would

not

aid

the

decisional

process. DISMISSED

3