816 F2d 672 Johnson v. R Sielaff

816 F.2d 672
Unpublished Disposition

Jefferson David JOHNSON, Petitioner-Appellant,
Allyn R. SIELAFF, Director of the Virginia Department of
Corrections, Respondent-Appellee.

No. 86-6791.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 23, 1987.
Decided April 14, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

Jefferson David Johnson, appellant pro se.

Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General of Virginia, for appellee.


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A review of the record and the district court's opinion accepting the magistrate's recommendation discloses that an appeal from its order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 would be without merit. Leave to proceed in forma pauperis is denied. Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal on the reasoning of the district court. Johnson v. Sielaff, C/A No. 85-826-N (E.D.Va., Oct. 10, 1986).*




Johnson complains that he was not, in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), given a chance to respond to the magistrate's report and recommendation. Johnson's reliance on Roseboro is misplaced. Roseboro notice is required when there is a motion for summary judgment and a possibility that such motion will be granted based on affidavits filed by the moving party. Id. at 310; see Fed.R.Civ.P. 56(b), (e). In this case, defendant filed a motion to dismiss Johnson's habeas petition. The magistrate complied with the requirements of Thomas v. Arn, --- U.S. ----, 54 U.S.L.W. 4032 (Dec. 4, 1985), when he warned the parties that failure to file objections to the magistrate's report and recommendation would constitute a waiver of the right to appeal from a judgment based on such report. We note that Johnson filed objections to the report