John Pittman, Jr., Petitioner-appellant, v. Director of the Department of Corrections, Respondent-appellee, 872 F.2d 419 (4th Cir. 1989)

John Pittman, Jr., appeals from the district court's order accepting the magistrate's recommendation to dismiss his 28 U.S.C. § 2254 petition. For the reasons stated below we deny a certificate of probable cause to appeal and dismiss the appeal.

Pittman alleges that he was subjected to double jeopardy because two indictments stemming from the same transaction involving sodomy and abduction were returned against him, and that the prosecutor failed to disclose an exculpatory letter. The district court adopted the magistrate's recommendation that Pittman's petition be dismissed as procedurally barred and noted that Pittman had failed to file any objection to the magistrate's report. In his notice of appeal Pittman claims he timely filed for an extension of time to respond to the magistrate's report. Further, he alleges that he filed objections. The record does not substantiate Pittman's contention that he filed a motion for extension of time and/or objections.

In both civil and criminal cases, failure to file objections to a magistrate's recommendation results in a waiver of appellate review of the substance of the magistrate's report so long as the parties received adequate notice. Thomas v. Arn, 474 U.S. 140 (1985); 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).

Pittman was given notice that he was required to file timely objections to the magistrate's report if he wished to preserve appellate review. Despite the warning, the record indicates Pittman failed to object to the magistrate's report. Hence, he has waived review by this Court of the substance of the magistrate's report.

Even if the Court accepted Pittman's assertions that he timely moved for an extension of time to file his objections, and that he filed objections, Pittman would be procedurally barred from asserting his claims by virtue of the reasoning of the district court. Pittman v. Director of the Department of Corrections, C/A No. 87-855-N (E.D. Va. Mar. 21, 1988).

Accordingly, a certificate of probable cause to appeal is denied and this appeal is dismissed. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

DISMISSED.