840 F. 2d 10 - Johnson v. D McKellar
840 F2d 10 Johnson v. D McKellar
840 F.2d 10
Unpublished Disposition
Willie David JOHNSON, Petitioner-Appellant,
v.
Kenneth D. MCKELLAR, Warden, State of South Carolina, Travis
Medlock, Attorney General of the State of South
Carolina, Respondents-Appellees.
No. 87-7722.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 27, 1987.
Decided Feb. 16, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Willie David Johnson, appellant pro se.
Frank Louis Valenta, Jr., Office of Attorney General of South Carolina, for appellee.
Before JAMES DICKSON PHILLIPS, WILKINSON, and WILKINS, Circuit Judges.
PER CURIAM:
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Willie D. Johnson, a South Carolina inmate, 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. Although Johnson filed objections, they were not filed within the time period prescribed by 28 U.S.C. Sec. 636(b)(1) and the magistrate's report. The district court declined to conduct de novo review of these untimely objections.
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 been warned that failure to timely object will waive appellate review. Wright v. Collins, 766 F.2d 841 (4th Cir.1985); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984). See Thomas v. Arn, 474 U.S. 140 (1985). Appellant has waived appellate review by failing to file timely 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.
DISMISSED.