Walter Speller v. Commonwealth of Virginia, No. 16-7290 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7290 WALTER Z. SPELLER, Petitioner - Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent -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 THACKER, Circuit Decided: Judges, November 28, 2016 and DAVIS, Senior Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 demonstrate both that the 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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