Dale Young, Petitioner-appellant, v. Jerry Hedricks, Respondent-appellee, 835 F.2d 876 (4th Cir. 1987)

Dale Young, a West Virginia inmate, appeals the dismissal without prejudice of his 28 U.S.C. § 2254 petition. In his petition he alleged that his counsel was ineffective, that his plea bargain was invalid, and that he would now like to withdraw his plea. Pursuant to 28 U.S.C. § 636(b) (1) (B), a magistrate reviewed Young's petition. He recommended dismissing the petition without prejudice for failure to exhaust state court remedies.

Young was advised that he had thirteen days to object to the magistrate's report and that failure to file these objections would result in a waiver of appellate review of the district court's judgment based on the magistrate's findings. Young did not object to the magistrate's report. After noting that no objections were filed, the district court adopted the magistrate's report and recommendation and dismissed Young's petition without prejudice. Young now appeals the district court's judgment.

This Court has held that the filing of timely objections to a magistrate's report is necessary to preserve 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, 474 U.S. 1019 (1985). The use of this procedure was upheld by the Supreme Court in Thomas v. Arn, 474 U.S. 140 (1985). As Young 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 dispense with oral argument, deny a certificate of probable cause to appeal, deny Young's request for counsel, and dismiss the appeal.

DISMISSED.