Charles W. Anderson, Petitioner-appellant, v. Department of Corrections for the State of South Carolina,respondent-appellee, 920 F.2d 926 (4th Cir. 1990)Annotate this Case
Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., District Judge. (CA-90-743)
Charles W. Anderson, appellant pro se.
Donald John Zelenka, Chief Deputy Attorney General, Columbia, S.C., for appellee.
Before K.K. HALL, MURNAGHAN and WILKINSON, Circuit Judges.
Charles W. Anderson seeks to appeal the district court's order dismissing this 28 U.S.C. § 2254 action. Appellant's action was referred to a magistrate pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate recommended that relief be denied and advised appellant 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, appellant failed to object to the magistrate's recommendation.
This Court has held that the timely filing of objections to a magistrate'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) (quoting Carr v. Hutto, 737 F.2d 433, 434 (4th Cir. 1984), cert. denied, 474 U.S. 1019 (1985)). See generally United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984). Appellant has waived appellate review by failing to file objections after receiving proper notice. We accordingly deny a certificate of probable cause to appeal and dismiss the appeal.* 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.
Anderson contends on appeal that his claims are now exhausted due to action by the South Carolina Supreme Court. He may file a new petition and present this new evidence to the district court