                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7244


JOHN H. DARBY,

                  Petitioner – Appellant,

             v.

STATE OF SOUTH CAROLINA; WARDEN, BROAD RIVER CORRECTIONAL
INSTITUTION,

                  Respondents – Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:08-cv-02931-CMC)


Submitted:    November 24, 2009             Decided:   December 11, 2009


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


John H. Darby, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Columbia, South Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  John H. Darby seeks to appeal the district court’s

orders denying relief on his 28 U.S.C. § 2254 (2006) petition

for a writ of habeas corpus.                        The district court referred this

case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B)

(2006).       The magistrate judge recommended that relief be denied

and advised Darby that failure to file timely objections to this

recommendation could waive appellate review of a district court

order based on the recommendation.                             Despite this warning, Darby

failed       to    file         timely    objections           to    the   magistrate      judge’s

recommendation.                  The    district        court       accepted    the     magistrate

judge’s recommendation and dismissed the petition.

                  On    the     same     day   as    the       district     court’s      dismissal

order, Darby filed objections to the magistrate judge’s report. *

The   objections            were       received     by    the       district    court    two    days

later       and,       in   a    second    order,        the    district       court    considered

Darby’s untimely objections, found them to be without merit, and

affirmed its previous denial of § 2254 relief.                                     Darby timely

appealed both orders.

                  The       timely       filing     of     specific         objections         to   a

magistrate             judge’s     recommendation              is    necessary     to     preserve

        *
       We deem Darby’s objections filed on the date he delivered
them to prison officials for mailing.      See Houston v. Lack,
487 U.S. 266, 270-72 (1988).



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appellate review of the substance of that recommendation when

the    parties    have        been     warned     of   the     consequences         of

noncompliance.     See Wells v. Shriners Hosp., 109 F.3d 198, 201

(4th   Cir.    1997);    Wright      v.     Collins,   766    F.2d    841,    845-46

(4th Cir. 1985).        The district court was under no obligation to

consider      Darby’s    objections          because   they      were      untimely.

Moreover, the fact that the district court ultimately considered

the untimely objections does not excuse the applicability of the

waiver rule.       See Wells, 109 F.3d at 201 (“The law in this

circuit is clear.       If written objections to a magistrate judge’s

recommendations are not filed with the district court within ten

days, a party waives its right to an appeal.”).                      By failing to

file timely objections after receiving proper notice, Darby has

waived appellate review of both of the district court’s orders.

            Accordingly,       we    deny   a   certificate     of   appealability

and dismiss the appeal.             We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials     before    the    court      and   argument     would   not     aid   the

decisional process.

                                                                           DISMISSED




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