Mason Johnson v. Warden McFadden
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [1000114855-2]. A certificate of appealability is denied. Originating case number: 5:17-cv-01026-JMC. Copies to all parties and the district court/agency . Mailed to: Mason Johnson. [17-6780]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. J. Michelle Childs, District Judge. (5:17-cv-01026-JMC)
Submitted: September 28, 2017
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mason Johnson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
Decided: October 3, 2017
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Mason Johnson seeks to appeal the district court’s order dismissing his 28 U.S.C.
§ 2254 (2012) petition as an unauthorized, successive petition. The district court referred
this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2012).
magistrate judge recommended that the petition be dismissed on this basis and advised
Johnson that failure to file timely, specific objections to this recommendation could
waive appellate review of a district court order based upon the recommendation.
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. Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). While
Johnson objected to the magistrate judge’s failure to consider his actual innocence claim
or to evaluate evidence that Johnson contended was wrongfully excluded from trial, his
objections did not address the magistrate judge’s proposed conclusion that this was an
unauthorized, successive § 2254 petition. We thus conclude that Johnson has waived
appellate review of the district court’s order because, after receiving proper notice, he
filed objections that were not responsive to the magistrate judge’s dispositive
recommendation. See United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007)
(holding that a litigant “waives a right to appellate review of particular issues by failing
to file timely objections specifically directed to those issues”).
Accordingly, we deny a certificate of appealability, deny Johnson’s motion for
appointment of counsel, and dismiss the appeal.
We dispense with oral argument
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because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
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