                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No.  15-6130



ALBERTO MARQUEZ CRUZ,

                Petitioner - Appellant,

           v.

BOB W. MARSHALL; KIERAN J. SHANAHAN,

                Respondents – Appellees. 


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  James A. Beaty, Jr.,
Senior District Judge. ( 1:13-cv-01097-JAB-LPA)


Argued:   September 21, 2016                 Decided:   December 19, 2016


Before KING, SHEDD, and THACKER, Circuit Judges. 


Vacated and remanded by unpublished per curiam opinion. 

ARGUED: Shon Robert Hopwood, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.      Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees.      ON BRIEF: Steven H. Goldblatt, Director,
Alexander J. Egbert, Ryan J. Travers, Student Counsel, Appellate
Litigation   Program,    GEORGETOWN    UNIVERSITY  LAW    CENTER,
Washington, D.C., for Appellant.     Roy Cooper, Attorney General
of the State of North Carolina, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. 
PER CURIAM:

             North     Carolina         state          prisoner        Alberto        Cruz

(“Petitioner”)       filed    a    habeas    corpus     petition       asserting      five

grounds for relief in the District Court for the Middle District

of North Carolina against Bob Marshall, Acting Superintendent of

the   Harnett        Correctional        Institution,          and     Frank     Perry,

Secretary,    North     Carolina      Department        of    Public    Safety       (“the

State”).      The State moved to dismiss the petition as untimely. 

The   magistrate           court    recommended          granting       the      motion. 

Petitioner    filed        objections    to      the    recommendation,        but    the

district     court     summarily        rejected       Petitioner’s       objections,

adopted the recommendation, and entered an order dismissing the

action as untimely. 

             We granted Certificates of Appealability to determine

whether the petition timely asserts a Brady violation and an

ineffective assistance of counsel claim.                      Because the district

court failed to properly consider Petitioner’s objections to the

magistrate’s Report and Recommendation and provide an adequate

rationale    for     its    decision,       we   vacate      the   district      court’s

decision and remand for further proceedings. 




                                            2
                                            I.

                                            A.

             On July 26, 2010, police arrested Petitioner, a 21-

year-old     Mexican       citizen,    in        a   McDonald’s      parking   lot    in

Guilford County, North Carolina.                      On September 20, 2010, the

grand jury indicted Petitioner for a variety of drug-related

charges.           Thereafter,       Petitioner’s          counsel       proceeded     to

negotiate a plea agreement with the State. 

             On January 10, 2011, Petitioner pled guilty to seven

drug-related offenses.             He was ultimately sentenced to between

175   and   219    months     imprisonment.              Per    the   plea    agreement,

Petitioner waived his right to direct appeal. 

                                            B.

             On    March    14,    2013,     Petitioner        filed    a   Motion    for

Appropriate Relief (“MAR”) in the North Carolina Superior Court

raising five challenges to his guilty plea and sentence: (1) a

violation of due process because the State did not allow him a

consular     visit     pursuant       to    the       Vienna    Convention;     (2)    a

violation of due process because Petitioner’s plea agreement was

not   knowing,       intelligent,          and       voluntary;      (3)    ineffective

assistance    of     counsel      because       counsel    failed      to   investigate

possible defenses; (4) a violation of due process because the

court sentenced him to a sentence outside the appropriate range;

and (5) a violation of Brady v. Maryland, 373 U.S. 83 (1963),

                                            3
because the State did not disclose a fingerprint analysis of the

drugs.  1

            When the North Carolina Superior Court rejected the

MAR, Petitioner filed a Motion for Reconsideration, which was

denied.     Petitioner next filed a Petition for Writ of Certiorari

with the North Carolina Court of Appeals, which was also denied. 

                                 C.

            On December 9, 2013, Petitioner filed a Petition for

Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (the “Habeas

Petition”), in the United States District Court for the Middle

District of North Carolina.        The district court referred the

matter to a magistrate judge.     See 28 U.S.C. § 636(b)(1)(B).    In

the Habeas Petition, Petitioner raised the same five challenges

to his plea and sentence as he did in his MAR.      Although almost

two years had elapsed since his guilty plea, the Habeas Petition

claimed timeliness under 28 U.S.C. § 2244(d)(1)(D).  2    The court




     1 In the MAR, Petitioner did not provide information about
how or when he became aware of either the existence of the
State’s report or his attorney’s failure to investigate. 
     2   Section 2244 (d)(1) provides:

          A 1-year period of limitation shall apply to
          an application for a writ of habeas corpus
          by a person in custody pursuant to the
          judgment of a State court.     The limitation
          period shall run from . . . ( D) the date on
          which the factual predicate of the claim or
(Continued)
                                  4
ordered      the    State          to    respond.            Rather      than    respond    on    the

merits,      the    State          moved       to     dismiss     the    Habeas      Petition      as

untimely. 

              On    January             9,    2015,    the      magistrate      judge     issued    a

Report and Recommendation (“R & R”).                               It first held the claims

about   the    consular            visit,        the      voluntary      nature      of   the   plea

agreement,         and       the    length       of       the   sentence       untimely    because

“Petitioner knew the factual predicate [for those claims] . . . 

when    he    pled       guilty          and    received        his   sentence.”           Cruz     v.

Marshall, No.  1:13-cv-1097, 2015 WL 136089, at *3 (M.D.N.C. Jan.

9, 2015), report and recommendation adopted, No.  1:13-cv-1097,

2015 WL 270026 (M.D.N.C. Jan. 21, 2015). 

              The        R    &     R        analyzed       the    Brady       and    ineffective

assistance         of    counsel             claims    separately       but     ultimately      held

these claims untimely because Petitioner had failed to plead

sufficient facts to toll the statute of limitations pursuant to

28 U.S.C. § 2244(d)(1)(D).                        Although the Habeas Petition alleged

a Brady violation and asserted the State suppressed a report

showing Petitioner’s fingerprints were not on the drugs he was

charged with trafficking, it did not include the date Petitioner

learned of the State’s report.                              Likewise, although the Habeas



              claims presented could have been discovered
              through the exercise of due diligence. 



                                                      5
Petition alleged ineffective assistance of counsel and asserted

Petitioner’s counsel failed to adequately investigate his case,

it    did    not   include    the    date    Petitioner       learned   of   counsel’s

failure      to    investigate       or   even     how   he   learned   of   counsel’s

failure.        The R & R deemed the failure to include these dates a

“fatal” error and therefore held these claims untimely.                           Cruz,

2015 WL 136089, at *3. 

               Petitioner timely filed his objections to the R & R

and    corrected      the    flaw.         Specifically,       Petitioner     stated    he

learned of the report showing his fingerprints were not on the

drugs when he received the State’s discovery documents “on or

about       January   15,    2013.”          J.A.    159.  3     His   objection    also

explained he learned of counsel’s failure to investigate his

case when he received his “file from counsel on or about March

1, 2013.”          Id. at 160. 

               Although Petitioner filled in this critical gap, the

district court nonetheless adopted the R & R and declined to

issue a Certificate of Appealability.                     Furthermore, the district

court’s laconic order failed to provide any insight as to why

the district court was rejecting Petitioner’s objections.                              See

Cruz, 2015 WL 270026, at *1. 



       3
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal. 



                                             6
                 Petitioner timely filed a Notice of Appeal, and we

granted      a    Certificate    of    Appealability    on    the    Brady   claim. 

Counsel was appointed for Petitioner and, upon request, we also

granted      a     Certificate   of     Appealability    on    the    ineffective

assistance of counsel claim. 

                                         II. 

                 Pursuant to 28 U.S.C. § 636(b)(1)(C), a district court

must review de novo any parts of an R & R to which objections are

made.        When a party fails to object to an adverse ruling, the

district court, in its discretion, may adopt an R & R without

providing an explanation.              See Camby v. Davis, 718 F.2d 198, 200

(4th Cir.  1983) (“Absent objection, we do not believe that any

explanation need be given for adopting the report.”). 

                 When a party raises new information in objections to

an R & R, regardless of whether it is new evidence or a new

argument, 4 the district court must do more than simply agree with

the magistrate.          It must provide independent reasoning tailored

to the objection.          See Orpiano v. Johnson, 687 F.2d 44, 48 (4th

Cir.  1982).           The district court does not need to provide an



        4
       The parties dispute whether the addition of the dates in
Petitioner’s objection to the R & R classify as additional
evidence the district court had discretion to accept or a new
argument the court was obligated to consider.    See Appellant’s
Br.  24; Appellee’s Br.  8.      We reach no determination on the
issue. 



                                          7
elaborate or lengthy explanation, but it must provide a specific

rationale that permits meaningful appellate review.                               See United

States v. Carter, 564 F.3d 325, 330 (4th Cir.  2009) (requiring a

district court to provide a specific explanation for sentencing

decisions); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177

(9th Cir.  1996) (“Here, the record does not reflect the district

court’s reasons for deciding not to award sanctions . . . . 

Because such a reasoned basis is necessary to make appellate

review meaningful, we vacate the district court order . . . .”); 

Stone v. Univ.  of Md. Med.  Sys.  Corp., 855 F.2d 178, 182 (4th

Cir.  1988) (“The procedures mandated by [In re Knight, 743 F.3d

231 (4th Cir.  1984)] ensure that the decision to seal records

will not be made lightly, and make possible meaningful review of

a decision to seal.”). 

              Here, the district court did not provide a sufficient

explanation.            Instead,     the       court       simply       stated,       it   “had

appropriately reviewed the portions of the Magistrate Judge’s

Report   to    which      objection     was       made    and    has    made     a   de   novo

determination        in   accord    with   the      Magistrate          Judge’s      report.” 

Cruz, 2015 WL 270026, at *1.                       But this statement cannot be

reconciled with the posture of the case. 

              The     magistrate        judge      dismissed           as    untimely     the

ineffective         assistance     of    counsel         and    Brady       claims    because

Petitioner     failed      to    include      specific         dates    when    he    learned

                                              8
facts     critical    to    these    claims.          Petitioner      responded     by

providing those dates.          With the new information, the R & R no

longer    included    the    basis    to       dismiss   Petitioner’s      Brady    or

ineffective       assistance   of     counsel       claims.         Therefore,      the

district    court    should    have    explained         its    decision   that    the

petition    was    untimely    so    as    to    permit    meaningful      appellate

review. 

                                          III. 

            For the foregoing reasons, we vacate and remand for

further proceedings.         Specifically, we direct the district court

to review de novo the R & R, including Petitioner’s objections,

and provide sufficient explanation for its ruling, whatever that

may be. 

                                                               VACATED AND REMANDED




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