OpenJurist

43 F3d 1466 Godfrey v. State

43 F.3d 1466

Johnny Frank GODFREY, Petitioner Appellant,
v.
STATE of North Carolina; Buncombe County, North Carolina,
Respondents Appellees.

No. 94-6735.

United States Court of Appeals, Fourth Circuit.

Submitted November 17, 1994.
Decided December 13, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Richard L. Voorhees, Chief District Judge. (CA-94-31-1)

Johnny Frank Godfrey, Appellant pro se. Clarence Joe DelForge, III, Office of the Atty. Gen. of North Carolina, Raleigh, NC; Keith Spurling Snyder, Buncombe County Attorney's Office, Asheville, NC, for Appellees.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Johnny F. Godfrey appeals the dismissal of his 28 U.S.C. Sec. 2241 (1988) petition. The case was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1988). The magistrate judge recommended dismissal of the petition and advised Godfrey that failure to file timely objections to this recommendation could result in waiver of appellate review of a district court order based upon the recommendation. Despite this warning, Godfrey failed to timely object to the magistrate judge's recommendation. The district court adopted the report and recommendation of the magistrate judge and dismissed the action.

2

The timely filing of 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 that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Godfrey has waived appellate review by failing to file timely objections after receiving proper notice. Accordingly, we deny a certificate of probable cause to appeal and dismiss. 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