896 F2d 547 Spicer v. Turlington

896 F.2d 547
Unpublished Disposition

Roy L. SPICER, Jr., Petitioner-Appellant,
v.
Superintendent TURLINGTON; Attorney General of North
Carolina, Respondents-Appellees.

No. 89-7640.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 22, 1989.
Decided Jan. 30, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Roy L. Spicer, Jr., appellant pro se.

Clarence Joe DelForge, III, Office of the Attorney General, for appellees.

Before WIDENER and CHAPMAN, Circuit Judges, and HARRISON L. WINTER, Senior Circuit Judge.

PER CURIAM:

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1

Roy L. Spicer, Jr. seeks to appeal the district court's order dismissing this 28 U.S.C. Sec. 2254 action. Appellant's action was referred to a magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(B). The magistrate recommended that relief be denied and advised appellant that the failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, appellant failed to object to the magistrate's recommendation.

2

This Court has held that the timely filing of objections to a magistrate's recommendation is necessary to preserve appellate review of the substance of that recommendation where the parties have received " 'fair warning of the possible consequences of the failure to object timely.' " Wright v. Collins, 766 F.2d 841 (4th Cir.1985) (quoting Carr v. Hutto, 737 F.2d 433, 434 (4th Cir.1984), cert. denied, 474 U.S. 1019 (1985)). See generally United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984) (party who fails to object timely to a magistrate's report waives appeal of the district court's judgment adopting the magistrate's report). Appellant has waived appellate review by failing to file objections after receiving proper notice. We accordingly deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

3

DISMISSED.