James Edward Taitano, Petitioner-appellant, v. Edward W. Murray, Director, Virginia Department Ofcorrections; Leah A. Darron, Assistant Attorneygeneral, Respondents-appellees, 959 F.2d 232 (4th Cir. 1992)

James Edward Taitano seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C.s 2254 (1988). Taitano's case was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b) (1) (B) and (C) (1988) and a local court rule. The magistrate judge recommended that relief be denied and advised Taitano 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, Taitano failed to object to the magistrate judge's recommendation.

The timely filing of objections to a magistrate judge'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, 846 (4th Cir. 1985).

Taitano filed a Motion to Set Aside and Vacate (the Magistrate Judge's) Report one day after the district court had entered judgment. This motion did not set forth any objections to the magistrate judge's report, but urged reversal on procedural grounds. Since Taitano's motion was filed within ten days of judgment entry, it may properly be construed as a Fed. R. Civ. P. 59(e) motion, see Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978), and its denial reviewed for abuse of discretion. Temkin v. Frederick County Comm'rs, 945 F.2d 716 (4th Cir. 1991), cert. denied, 60 U.S.L.W. 3482 (U.S. 1992).

Our review of the record and the district court's opinion denying Taitano's motion discloses no abuse of discretion. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal based on Taitano's failure to file timely objections to the magistrate judge's report and based on the reasoning of the district court in denying Taitano's post-judgment motion. Taitano v. Murray, No. CA-9134-N (E.D. Va. Aug. 1 and 8, 1991).

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.

DISMISSED