846 F2d 73 Perry v. Pm Rogers

846 F.2d 73
Unpublished Disposition

Joseph Lee PERRY, Petitioner-Appellant,
P.M. ROGERS, Attorney General of North Carolina,

No. 87-7662.

United States Court of Appeals, Fourth Circuit.

Submitted March 31, 1988.
Decided May 12, 1988.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Joseph Lee Perry, appellant pro se.

Barry Steven McNeill, Office of Attorney General, for appellees.

Before SPROUSE and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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Joseph Lee Perry, a North Carolina inmate, seeks a certificate of probable cause to appeal the judgment of the district court dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. Sec. 2254. In his petition, Perry raises several claims challenging his 1976 convictions, after a jury trial, for attempted armed robbery. Perry asserts that he is entitled to federal habeas relief because of ineffective assistance of counsel, errors committed by the trial court, errors in sentencing, and double jeopardy.


The case was referred to the magistrate for report and recommendation pursuant to 28 U.S.C. Sec. 636(b)(1). In a report and recommendation entered July 8, 1987, the magistrate recommended that the petition be dismissed.


In a notice attached to the report, Perry was informed that he had ten days from July 8, 1987, to file objections to the report and that failure to file timely objections might result in waiver of his right to appeal. On July 14, 1987, the district court received Perry's "notice of appeal" from the magistrate's report. This paper was not marked filed by the district court until July 30, 1987. By order entered July 30, 1987, the district court noted that objections had not been filed, adopted the magistrate's report and recommendation, and denied the petition.


An indigent prisoner's pro se pleadings are entitled to a liberal construction. Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert. denied, 439 U.S. 970 (1978). Perry attempted to comply with Fed.R.Civ.P. 72(b) by filing a notice of appeal from the magistrate's report. We therefore construe Perry's notice of appeal as an objection to the magistrate's report. Since the notice of appeal was filed within the ten-day period for serving and filing objections to a magistrate's report under Fed.R.Civ.P. 72(b), and since the notice of appeal clearly indicated that the appeal was from the magistrate's report, the district court erred in failing to conduct de novo review.


We therefore grant leave to proceed in forma pauperis, grant a certificate of probable cause to appeal, vacate the judgment of the district court and remand the case with instructions to conduct de novo review pursuant to 28 U.S.C. Sec. 636(b)(1).


Because the dispositive issues recently have been decided authoritatively we dispense with oral argument.