United States Court of Appeals, Fourth Circuit
United States Court of Appeals, Fourth Circuit
2d 49
Appeal from the United States District Court for the District of South
Carolina, at Columbia. Clyde H. Hamilton, District Judge. (CA-88-2935)
Edward F. Merriman, appellant pro se.
Salley Wood Elliott, Assistant Attorney General, Columbia, S.C. for
appellees.
D.S.C.
DISMISSED.
Before DONALD RUSSELL, WILKINSON and NIEMEYER, Circuit
Judges.
OPINION
PER CURIAM:
Edward F. Merriman seeks to appeal the district court's order dismissing this 28
U.S.C. 2254 action. Appellant's action was referred to a magistrate judge
pursuant to 28 U.S.C. 636(b)(1)(B). The magistrate judge 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
timely object to the magistrate judge's recommendation.
This Court has held that the timely filing of objections to a magistrate judge's
recommendation is necessary to preserve appellate review of the substance of
that recommendation where the parties have been warned that failure to object
will waive appellate review. Wright v. Collins, 766 F.2d 841, 846 (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). Appellant has waived
appellate review by failing to file timely objections after receiving proper
notice. Accordingly, we deny a certificate of probable cause to appeal, dismiss
the appeal, and deny Merriman's motion for resentencing. 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.