Theodore Morris Foust, Petitioner-appellant, v. State of North Carolina; Attorney General of Northcarolina, Respondents-appellees, 812 F.2d 1400 (4th Cir. 1987)

Theodore Morris Foust seeks to appeal the district court order denying him relief on his claim filed pursuant to 28 U.S.C. § 2254. The district court referred Foust's complaint to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate filed a report recommending that the petition be denied. Foust was notified that he had ten days in which to file objections to the magistrate's report. See 28 U.S.C. § 636(b) (1) (C). Upon request, Foust was given an extension of time to file objections. Nevertheless, Foust failed to file objections and the district court adopted the magistrate's report and recommendation.

This Court has held that the failure to file timely objections to a magistrate's report waives appellate review of the substance of that report where the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984), cert. denied, --- U.S. ----, 54 U.S.L.W. 3392 (Dec. 9, 1985). The use of this procedure was upheld by the Supreme Court in Thomas v. Arn, --- U.S. ----, 54 U.S.L.W. 4032 (Dec. 4, 1985). As Foust was properly warned, and yet failed to file objections, he has waived his right to appellate review.

Because the dispositive issues recently have been decided authoritatively, we deny leave to proceed in forma pauperis, deny a certificate of probable cause to appeal, dispense with oral argument and dismiss the appeal.