Petition for Writ of Certiorari — John Foster Norris, Petitioner v. Donnie Stonebreaker, Warden

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-6960

JOHN FOSTER NORRIS,

Petitioner - Appellant,

v.

WARDEN, EVANS CORRECTIONAL INSTITUTION,

Respondent - Appellee,

and

SOUTH CAROLINA, STATE OF; DEPARTMENT OF CORR.

Respondents.

Appeal from the United States District Court for the District of South Carolina, at Rock

Hill. Henry M. Herlong, Jr., Senior District Judge. (0:22-cv-00736-HMH)

Submitted: January 17, 2023

Decided: January 20, 2023

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

John Foster Norris, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

John Foster Norris seeks to appeal the district court’s order denying relief on his

28 U.S.C. § 2254 petition. The district court referred this case to a magistrate judge

pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that relief be

denied and advised Norris 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. Martin v. Duffy, 858

F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); .see

also Thomas v. Am, 474 U.S. 140, 154-55 (1985).

Although Norris received proper notice and filed timely objections to the magistrate

judge’s recommendation, he has waived appellate review because the objections were not

specific to the particularized legal recommendations made by the magistrate judge. See

Martin, 858 F.3d at 245 (holding that, “to preserve for appeal an issue in a magistrate

judge’s report, a party must object to the finding or recommendation on that issue with

sufficient specificity so as reasonably to alert the district court of the true ground for the

objection” (internal quotation marks omitted)). Accordingly, we deny a certificate of

appealability and dismiss the appeal.

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FILED: January 20, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-6960

(0:22-cv-00736-HMH)

JOHN FOSTER NORRIS

Petitioner - Appellant

v.

WARDEN, EVANS CORRECTIONAL INSTITUTION

Respondent - Appellee

and

SOUTH CAROLINA, STATE OF; DEPARTMENT OF CORR.

Respondents

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

FILED: March 7, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-6960

(0:22-cv-00736-HMH)

JOHN FOSTER NORRIS

Petitioner - Appellant

v.

WARDEN, EVANS CORRECTIONAL INSTITUTION

Respondent - Appellee

and

SOUTH CAROLINA, STATE OF; DEPARTMENT OF CORR.

Respondents

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge King, Judge Thacker, and

Senior Judge Traxler.

For the Court

/s/ Patricia S. Connor. Clerk

0:22-cv-00736-HMH

Date Filed 08/11/22

Entry Number 20

Page lot 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

John Foster Norris,

Petitioner,

vs.

Warden, Evans Correctional Institution,

Respondent.

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C.A. No. 0:22-736-HMH-PJG

OPINION & ORDER

This matter is before the court for review of the Report and Recommendation of United

States Magistrate Judge Paige J. Gossett made in accordance with 28 U.S.C. § 636(b)(1) and

Local Civil Rule 73.02 for the District of South Carolina.1 Petitioner John Foster Norris

(“Norris”) is a pro se state prisoner seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.

In her Report and Recommendation filed on April 19, 2022, Magistrate Judge Gossett

recommends dismissing the Petition without prejudice and without requiring the Respondent to

file a return. (R&R, generally, ECF No. 13.)

Norris timely filed objections to the Report and Recommendation.2 (Obj., generally,

ECF No. 15.) Objections to the Report and Recommendation must be specific. Failure to file

1 The recommendation has no presumptive weight, and the responsibility for making a

final determination remains with the United States District Court. See Mathews v. Weber, 423

U.S. 261, 270 (1976). The court is charged with making a de novo determination of those

portions of the Report and Recommendation to which specific objection is made. The court may

accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge

or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

2 Houston v. Lack, 487 U.S. 266 (1988).

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0:22-cv-00736-HMH

Date Filed 08/11/22

Entry Number 20

Page 2 of 3

specific objections constitutes a waiver of a party’s right to further judicial review, including

appellate review, if the recommendation is accepted by the district judge. See United States v.

Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of specific objections to the

Report and Recommendation of the magistrate judge, this court is not required to give any

explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.

1983).

Upon review, the court finds that Norris’s objections are non-specific, unrelated to the

dispositive portions of the magistrate judge’s Report and Recommendation, or merely restate his

claims. Norris’s objections are therefore without merit. Accordingly, after a thorough review of

the magistrate judge’s Report and the record in this case, the court adopts Magistrate Judge

Gossett’s Report and Recommendation and incorporates it herein.

It is therefore

ORDERED that the Petition is dismissed without prejudice and without requiring the

Respondent to file a return. It is further

ORDERED that a certificate of appealability is denied because Norris has failed to make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

s/Henry M. Herlong, Jr.

Senior United States District Judge

Greenville, South Carolina

August 11, 2022

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0:22-cv-00736-HMH

Date Filed 08/11/22

Entry Number 20

Page 3 of 3

NOTICE OF RIGHT TO APPEAL

Petitioner is hereby notified that he has the right to appeal this order within thirty (30)

days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate

Procedure.

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