Robert Smart v. Cecilia Reynolds

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to compel [998305097-2] in 09-8262, denying Motion to compel [998309603-2] in 09-8262, denying Motion to compel [998335447-2] in 09-8262; denying Motion for default judgment [998305097-3] in 09-8262, denying Motion for default judgment [998309601-2] in 09-8262, denying Motion for default judgment [998316531-2] in 10-6227, denying Motion for default judgment [998348239-2] in 09-8262, denying Motion for default judgment [998358277-2] in 10-6227; denying Motion to present evidence and to get an expert on toxic poisoning's opinion [998408401-2] in 09-8262, denying Motion for explanation [998413368-2] in 09-8262. Originating case number: 8:08-cv-03918-GRA. Copies to all parties and the district court/agency. [998415210] [09-8262, 10-6227]

Robert Smart v. Cecilia Reynolds

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Case: 09-8262 Document: 30

Date Filed: 08/31/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8262 ROBERT Smart, DALE SMART, a/k/a Robert Smart, a/k/a Robert D.

Petitioner ­ Appellant, v. CECILIA REYNOLDS, Warden Kershaw Correctional Institution, Respondent ­ Appellee.

No. 10-6227 ROBERT Smart, DALE SMART, a/k/a Robert Smart, a/k/a Robert D.

Petitioner ­ Appellant, v. CECILIA REYNOLDS, Warden Kershaw Correctional Institution, Respondent ­ Appellee.

Appeals from the United States District Court for the District of South Carolina, at Anderson. G. Ross Anderson, Jr., Senior District Judge. (8:08-cv-03918-GRA) Submitted: August 26, 2010 Decided: August 31, 2010

Dockets.Justia.com

Case: 09-8262 Document: 30

Date Filed: 08/31/2010

Page: 2

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Robert Dale Smart, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General; Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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Case: 09-8262 Document: 30

Date Filed: 08/31/2010

Page: 3

PER CURIAM: In these consolidated appeals, Robert Dale Smart seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (2006) The petition district and the court's order Smart's 28 denying § 2254

reconsideration. petition to a

court

referred to

magistrate

judge

pursuant

U.S.C.A.

§ 636(b)(1)(B) (West 2006 & Supp. 2010).

The magistrate judge

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

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

has waived appellate review of the claims raised in his § 2254 petition by failing to file timely and specific objections after receiving proper notice. Turning order unless denying a to Smart's appeal the judge of the is a district not court's

reconsideration, justice of

order issues

appealable of

circuit

certificate

appealability.

28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 3

Case: 09-8262 Document: 30

Date Filed: 08/31/2010

Page: 4

369

F.3d

363,

369

(4th

Cir.

2004).

A

certificate

of

appealability will not issue absent "a substantial showing of the denial of a constitutional right." (2006); Slack v. McDaniel, 529 U.S. 28 U.S.C. § 2253(c)(2) 473, 484-85 (2000); see We have

Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

independently reviewed the record and conclude that Smart has not made the requisite showing. Accordingly, we deny Smart's pending motions, deny a certificate dispense of appealability, oral argument and dismiss the the appeals. and We legal

with

because

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED

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