Anthony E. Jarman, Petitioner-appellant, v. Larry W. Huffman, Attorney General of Virginia, Respondents-appellees, 945 F.2d 398 (4th Cir. 1991)Annotate this Case
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, District Judge and David G. Lowe, Magistrate Judge. (CA-90-562-3)
Anthony E. Jarman, appellant pro se.
Robert B. Condon, Assistant Attorney General, Richmond, Va., for appellees.
Before WILKINSON and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Anthony E. Jarman appeals from the district court's order dismissing his 28 U.S.C. § 2254 action. The court referred Jarman's action to a magistrate judge pursuant to 28 U.S.C. § 636(b) (1) (B). The magistrate judge recommended that relief be denied and notified Jarman that failure to file timely objections to the report and recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Jarman failed to 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). Jarman 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.
Jarman alleges, on appeal, that his court-appointed counsel failed to file objections despite Jarman's instructions to file objections. We express no opinion on this assertion but note that our disposition does not preclude Jarman from filing a Fed. R. Civ. P. 60(b) motion in the district court to raise this issue