Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Robert Edward Lee, Defendant-appellant, 816 F.2d 674 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 816 F.2d 674 (4th Cir. 1987) Submitted Feb. 25, 1987. Decided April 1, 1987

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Robert Edward Lee, appellant pro se.

Vinton DeVane Lide, United States Attorney, for appellee.


Robert E. Lee, a federal prisoner, appeals from the district court's order dismissing his 28 U.S.C. § 2255 motion. The district court referred Lee's motion to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate considered the allegations raised in Lee's motion and recommended that the government's motion for summary judgment be granted. Lee was notified that he had ten days in which to file objections to the magistrate's report and was warned that failure to object would waive appellate review. See 28 U.S.C. § 636(b) (1). Lee failed to file timely objections in the district court. The district court, after reviewing the magistrate's recommendation and considering the matter, adopted the magistrate's recommendation and denied relief under Sec. 2255.

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. United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984); see also Thomas v. Arn, --- U.S. ----, 54 U.S.L.W. 4032 (Dec. 4, 1985). Because Lee failed to file objections after being advised of the need to do so, he has waived his right to appellate review.

As to the district court's refusal to grant Lee's post-judgment motion to withdraw his claims without prejudice, we find no abuse of discretion. Once the district court had resolved Lee's claims against him on the merits, dismissal of the claims without prejudice was unwarranted.

We dispense with oral argument because the dispositive issues have recently been decided authoritatively and affirm the judgment of the district court.