Jerry Lee Bruce, Petitioner Appellant, v. Attorney General of the State of South Carolina, T. Travismedlock; Evans Correctional Institution,respondents Appellees.jerry Lee Bruce, Petitioner Appellant, v. Attorney General of the State of South Carolina, T. Travismedlock; Evans Correctional Institution,respondents Appellees, 35 F.3d 555 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 35 F.3d 555 (4th Cir. 1994) Submitted June 21, 1994. Decided Sept. 2, 1994

Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CA-92-1394-3-17BD).

Jerry Lee Bruce, Appellant Pro Se.

Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, SC; Larry Cleveland Batson, South Carolina Department of Corrections, Columbia, SC, for appellees.



Before WILKINSON and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.


Appellant seeks to appeal the district court's orders dismissing his 28 U.S.C. § 2254 (1988) petition. Appellant's case was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b) (1) (B) (1988). The magistrate judge recommended that relief be denied and advised Appellant that failure to file timely objections to his 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. The district court dismissed the action for failure to file objections.

On the same day as the dismissal, Appellant's untimely objections to the magistrate judge's report were received by the district court. In a second order prepared two days later, the district court considered Appellant's late filed objections, found them to be without merit, and granted Respondent's summary judgment motion. Appellant then filed a notice of appeal as to the first order (No. 94-6301); followed by a notice of appeal as to the second order (No. 94-6540).

The timely filing of objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Generally, the district court cannot reopen a case on its own motion and issue a different opinion. See Williams v. McKenzie, 576 F.2d 566, 569-70 (4th Cir. 1978). However, in this case, the district court was under no obligation to consider Appellant's objections because they were untimely. Therefore, under either the first or second order, dismissal of the Sec. 2254 petition was proper, and Appellant has waived appellate review by failing to file timely objections after receiving proper notice. We accordingly deny a certificate of probable cause to appeal in both cases and dismiss the appeals.

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.