United States of America, Plaintiff-appellee, v. Alvin Edward Smith, Defendant-appellant, 848 F.2d 186 (4th Cir. 1988)

Alvin Edward Smith appeals the district court's orders dismissing this 28 U.S.C. § 2255 action, denying his motion to amend the Sec. 2255 application, and denying his motion to reconsider the Sec. 2255 dismissal brought pursuant to Fed. R. Civ. P. 59. Smith's action was referred to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate recommended that relief be denied and advised Smith 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, Smith 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 been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984). See Thomas v. Arn, 474 U.S. 140 (1985). Smith has waived appellate review of the merits of his Sec. 2255 action by failing to file objections after receiving proper notice. We accordingly affirm the judgment of the district court.

Additionally, we conclude that the denial of Smith's motion to amend his Sec. 2255 motion to include the claim of whether Congress intended to pyramid sentences under 18 U.S.C. §§ 371 and 500 was not an abuse of discretion. This motion to amend was not filed until after the Government had responded to the original Sec. 2255 motion and after the magistrate had filed his report.

Finally, we find no error in the denial of the motion for reconsideration of the denial of the Sec. 2255 motion. Smith did not allege anything in his Rule 59 motion requiring the district court to reconsider its previous order. 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.

AFFIRMED