Danny William Morton, Petitioner-appellant, v. Waylon B. Collins; Attorney General of the State of Northcarolina, Respondent-appellee, 819 F.2d 1138 (4th Cir. 1987)

Danny William Morton, a North Carolina inmate, appeals the district court's dismissal of his petition for habeas corpus relief. The district court referred Morton's petition to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate filed a report recommending that the petition be dismissed without prejudice for failure to exhaust remedies. Morton 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). He failed to file objections. The district court adopted the magistrate's findings and recommendation and dismissed the petition.

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 Supreme Court has approved the court's power to establish rules predicating the availability of appellate review on objection to the magistrate's recommendation. Thomas v. Arn, --- U.S. ----, 54 U.S.L.W. 4032 (Dec. 9, 1985). Morton was properly warned, and yet failed to file objections; he has waived his right to appellate review.

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

DISMISSED.