United States of America, Plaintiff-appellee, v. Bobbie Cephus Manuel, A/k/a Gravedigger, Defendant-appellant.united States of America, Plaintiff-appellee, v. Bobbie Cephus Manuel, A/k/a Gravedigger, Defendant-appellant, 51 F.3d 269 (4th Cir. 1995)

Bobbie Cephus Manuel filed a 28 U.S.C. § 2255 (1988) motion, seeking relief from his conviction for conspiracy to possess with intent to distribute marijuana. In Appeal No. 94-7163, Manuel appeals from the magistrate judge's order denying his motion for an extension of time to respond to the magistrate judge's recommendation. In Appeal No. 94-7259, Manuel appeals from the district court's final order adopting the magistrate judge's recommendation and denying relief. For the reasons stated below, in No. 94-7163, we dismiss the appeal, and in No. 94-7259, we affirm.

Manuel's case was referred to the magistrate judge pursuant to 28 U.S.C.A. Sec. 636(b) (1) (West 1993). The magistrate judge recommended that relief be denied and advised Manuel that failure to file objections to this recommendation within ten days could waive appellate review of a district court's order based on the recommendation. Manuel filed a motion for an extension of time to respond to the recommendation, which the magistrate judge denied. Manuel failed to file objections to the magistrate judge's recommendation and the district court subsequently entered an order adopting the magistrate judge's recommendation and denying Manuel relief.

Unless the magistrate judge exercises jurisdiction under 28 U.S.C.A. Sec. 636(c) (West 1993), the parties may appeal decisions of the magistrate judge only to the district court. Because the magistrate judge did not exercise jurisdiction under Sec. 636(c), this Court is without jurisdiction to consider Manuel's appeal in No. 94-7163.

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). Manuel has waived appellate review of the district court's final order by failing to file objections after receiving proper notice.

For these reasons, in No. 94-7163 we dismiss the appeal and in No. 94-7259 we affirm. 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.

No. 94-7163--DISMISSED

No. 94-7259--AFFIRMED.