Charles Darby, Jr., Petitioner-appellant, v. C.m. 'bud' White, Respondent-appellee, 823 F.2d 546 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 823 F.2d 546 (4th Cir. 1987) Submitted April 27, 1987. Decided July 10, 1987

Charles Darby, Jr., appellant pro se.

Charles G. Brown, III, Attorney General, Silas Bent Taylor, Deputy Attorney General, Office of the Attorney General of West Virginia.

Before WIDENER, HALL and CHAPMAN, Circuit Judges.


Charles Darby, a West Virginia 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.

Darby's habeas petition was referred to a magistrate for review pursuant to 28 U.S.C. § 636(b) (1) (B). On September 23, 1986, the magistrate filed his report recommending that the defendant's motion to dismiss be granted. Darby was sent a copy of the magistrate's recommendation along with notification that failure to object to the magistrate's report within 13 days would result in waiver of his right to appeal the district court's judgment. See 28 U.S.C. § 636(b) (1) (c). Darby failed to file objections. On November 19, 1986, the district court adopted the recommendation of the magistrate and dismissed the petition without prejudice. Darby appealed.

The 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. 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). Darby was given notification but, nevertheless, he 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.