911 F. 2d 722 - Henley v. Rf Wilson Da
911 F2d 722 Henley v. Rf Wilson Da
911 F.2d 722
Unpublished Disposition
Johnnie HENLEY, Petitioner-Appellant,
v.
R.F. WILSON, D.A. Garraghty, Attorney General of the
Commonwealth of Virginia, Respondents-Appellees.
No. 90-7001.
United States Court of Appeals, Fourth Circuit.
Submitted July 9, 1990.
Decided July 20, 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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (C/A No. 88-401-R)
Johnnie Henley, appellant pro se.
Mark Ralph Davis, Office of the Attorney General of Virginia, Richmond, Va., for appellee.
E.D.Va.
DISMISSED.
Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
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Johnnie Henley 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.
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 facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
DISMISSED.