Edward F. Merriman, Petitioner-appellant, v. Parker Evatt, South Carolina Department of Corrections, T.travis Medlock, Attorney General of the State Ofsouth Carolina, Respondents-appellees, 943 F.2d 49 (4th Cir. 1991)Annotate this Case
Submitted May 16, 1991. Decided Sept. 5, 1991
Appeal from the United States District Court for the District of South Carolina, at Columbia. Clyde H. Hamilton, District Judge. (CA-88-2935)
Edward F. Merriman, appellant pro se.
Salley Wood Elliott, Assistant Attorney General, Columbia, S.C. for appellees.
Before DONALD RUSSELL, WILKINSON and NIEMEYER, Circuit Judges.
Edward F. Merriman seeks to appeal the district court's order dismissing this 28 U.S.C. § 2254 action. Appellant's action was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate judge 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 timely object to the magistrate judge's recommendation.
This Court has held that 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) (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 timely objections after receiving proper notice. Accordingly, we deny a certificate of probable cause to appeal, dismiss the appeal, and deny Merriman's motion for resentencing. 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.