Larry Kirby v. Warden


UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:09-cv-02425-HMH Copies to all parties and the district court/agency. [998443353] [10-7082]

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Larry Kirby v. Warden Doc. 0 Case: 10-7082 Document: 9 Date Filed: 10/12/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7082 LARRY GORDON KIRBY, Petitioner - Appellant, v. WARDEN, Perry Correctional Institution, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Columbia. Henry M. Herlong, Jr., Senior District Judge. (3:09-cv-02425-HMH) Submitted: September 30, 2010 Decided: October 12, 2010 Before NIEMEYER, AGEE, and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Larry Gordon Kirby, Appellant Pro Se. Roy F. Laney, Heath McAlvin Stewart, III, RILEY, POPE & LANEY, LLC, Columbia, South Carolina; Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 10-7082 Document: 9 Date Filed: 10/12/2010 Page: 2 PER CURIAM: Larry G. Kirby seeks to appeal the district court's order denying relief 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.A. 636(b)(1)(B) (West 2006 & Supp. 2010). The magistrate judge recommended that relief be denied and advised Kirby that failure to file specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation. The 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. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); Wright v. see also Thomas v. Arn, 474 U.S. 140 (1985). Kirby 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 before contentions the court are and adequately argument presented not in aid the the materials decisional would process. DISMISSED 2

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