Walter Speller v. Commonwealth of Virginia
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999944834-2] Originating case number: 3:15-cv-00781-HEH-RCY Copies to all parties and the district court/agency. [999975550]. Mailed to: appellant. [16-7290]
Appeal: 16-7290
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7290
WALTER Z. SPELLER,
Petitioner - Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:15-cv-00781-HEH-RCY)
Submitted:
November 22, 2016
Before DIAZ and
Circuit Judge.
THACKER,
Circuit
Decided:
Judges,
November 28, 2016
and
DAVIS,
Senior
Dismissed by unpublished per curiam opinion.
Walter Z. Speller, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Walter Speller seeks to appeal the district court’s order
dismissing as successive his 28 U.S.C. § 2254 (2012) petition.
The
district
court
referred
this
case
to
a
magistrate
pursuant to 28 U.S.C. § 636(b)(1)(B) (2012).
judge
The magistrate
judge recommended that the petition be dismissed as successive
and advised Speller that the failure to file timely and specific
objections to this recommendation could waive appellate review
of
a
district
court
order
based
upon
the
recommendation.
Speller did not object to the magistrate judge’s recommendation.
The district court adopted the recommendation and dismissed the
§ 2254 petition.
The
district
court’s
order
is
not
appealable
unless
a
circuit justice or judge issues a certificate of appealability.
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.”
(2012).
28 U.S.C. § 2253(c)(2)
When the district court denies relief on the merits, a
prisoner
satisfies
reasonable
this
jurists
would
standard
find
that
by
demonstrating
the
district
that
court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).
denies
relief
on
procedural
When the district court
grounds,
2
the
prisoner
must
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demonstrate
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both
that
the
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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.
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.
Colonial
Life
&
(4th Cir.
2005);
(4th Cir.
1997);
Accident
Wells
district
proper
court’s
notice
v.
Wright
(4th Cir. 1985).
Ins.
Co.,
Shriners
v.
416
Hosp.,
Collins,
F.3d
109
766
Diamond v.
310,
F.3d
F.2d
315-16
198,
841,
201
845-46
Speller has waived appellate review of the
order
to
by
the
failing
to
object
magistrate
judge’s
after
receiving
recommendation
concerning all claims other than his claim alleging that the
indictment was procured through false testimony.
Accordingly, we deny a certificate of appealability, deny
leave to proceed in forma pauperis, and dismiss the appeal.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
DISMISSED
3
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