David Lee Harper, Petitioner-appellant, v. Ernest R. Sutton; Attorney General of the State of Northcarolina, Respondents-appellees, 815 F.2d 74 (4th Cir. 1987)

David Harper, a North Carolina inmate, seeks to appeal the district court's dismissal of his habeas corpus petition. we deny a certificate of probable cause to appeal and dismiss the appeal.

Harper's habeas petition was referred to a magistrate for review pursuant to 28 U.S.C. §636(b) (1) (B). On October 2, 1986, the magistrate filed his report recommending that the defendants' motion to dismiss be granted. Harper was sent a copy of the magistrate's recommendation along with notification that failure to object to the magistrate's report within ten days would result in waiver of his right to appeal the district court's judgment. See 28 U.S.C. § 636(b) (1) (C). No objections were filed within the ten days. On November 3, 1986, Harper submitted a letter to the district court inquiring as to the status of his case and announcing his desire to appeal. On December 10, 1986, the district court adopted the recommendation of the magistrate and dismissed the petition. Harper noted this appeal.

This Court has previously determined that failure to timely object to a magistrate's report and recommendation waives appellate review of the substance of that report if notification was given as to the need to timely object. Carr v. Hutto, 1737 F.2d 433 (4th Cir. 1984), cert. denied, --U.S. ----, 54 U.S.L.W. 3392 (Dec. 9, 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.), pert. denied, 467 U.S. 1208 (1984). The record indicates that Harper was given notification but nevertheless failed to timely object. Therefore, he has waived appellate review.

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

DISMISSED.