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  • Braxton v. Johnson, 4th Cir. (2005)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit in the case of James Arthur Braxton v. Gene M. Johnson, Director of the Virginia Department of Corrections. The court dismissed Braxton's appeal of the district court's denial of his habeas corpus petition. The district court had referred the case to a magistrate judge, who recommended denying relief. Braxton failed to file timely objections to the magistrate's recommendation despite being warned that this would result in waiver of his right to appellate review. As Braxton did not preserve his right to appeal, the Fourth Circuit dismissed the case.

    Original Description:

    Filed: 2005-08-24 Precedential Status: Non-Precedential Docket: 05-6454

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit in the case of James Arthur Braxton v. Gene M. Johnson, Director of the Virginia Department of Corrections. The court dismissed Braxton's appeal of the district court's denial of his habeas corpus petition. The district court had referred the case to a magistrate judge, who recommended denying relief. Braxton failed to file timely objections to the magistrate's recommendation despite being warned that this would result in waiver of his right to appellate review. As Braxton did not preserve his right to appeal, the Fourth Circuit dismissed the case.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    Download as pdf
    6 views3 pages

    Braxton v. Johnson, 4th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit in the case of James Arthur Braxton v. Gene M. Johnson, Director of the Virginia Department of Corrections. The court dismissed Braxton's appeal of the district court's denial of his habeas corpus petition. The district court had referred the case to a magistrate judge, who recommended denying relief. Braxton failed to file timely objections to the magistrate's recommendation despite being warned that this would result in waiver of his right to appellate review. As Braxton did not preserve his right to appeal, the Fourth Circuit dismissed the case.

    Copyright:

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 05-6454

    JAMES ARTHUR BRAXTON,


    Petitioner - Appellant,
    versus
    GENE M. JOHNSON, Director
    Department of Corrections,

    of

    the

    Virginia
    Respondent - Appellee.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
    District Judge. (CA-04-406-2)

    Submitted:

    August 18, 2005

    Decided:

    August 24, 2005

    Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    James Arthur Braxton, Appellant Pro Se. Mark Ralph Davis, OFFICE
    OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    James Arthur Braxton, a state prisoner, seeks to appeal
    the district courts order dismissing his petition filed under 28
    U.S.C. 2254 (2000).

    The district court referred this case to a

    magistrate judge pursuant to 28 U.S.C. 636(b)(1)(B) (2000).

    The

    magistrate judge recommended that relief be denied and advised


    Braxton

    that

    failure

    to

    file

    timely

    objections

    to

    this

    recommendation would result in waiver of appellate review of a


    district court order based upon the recommendation.

    Despite this

    warning, and an extension by the magistrate judge of the time in


    which to do so, Braxton failed to timely file objections to the
    magistrate judges recommendation.
    The timely filing of specific objections to a magistrate
    judges recommendation is necessary to preserve appellate review of
    the substance of that recommendation when the parties have been
    warned that failure to object will waive appellate review.

    See

    Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also
    Thomas v. Arn, 474 U.S. 140 (1985).

    Braxton has waived appellate

    review by failing to file timely objections after receiving proper


    notice.

    Accordingly, we deny a certificate of appealability and

    dismiss the appeal.


    facts

    and

    materials

    legal
    before

    We dispense with oral argument because the

    contentions
    the

    court

    are

    adequately

    and

    argument

    decisional process.

    - 2 -

    presented

    would

    not

    in

    the

    aid

    the

    DISMISSED

    - 3 -

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