Robert O. Nesmith, Petitioner Appellant, v. State of South Carolina; T. Travis Medlock, Attorneygeneral of the State of South Carolina,respondents Appellees, 42 F.3d 1386 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 42 F.3d 1386 (4th Cir. 1994) Submitted: Nov. 17, 1994. Decided: December 7, 1994

Appeal from the United States District Court for the District of South Carolina, at Columbia. Charles E. Simons, Jr., Senior District Judge. (CA-92-1993-3-6BD)

Robert O. Nesmith, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, SC, for Appellees.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


Appellant seeks to appeal the district court's order 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 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 judge's recommendation.

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). 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.

DISMISSED.