Phillip G. Smith, Petitioner-appellant, v. State of South Carolina; Attorney General of the State Ofsouth Carolina, Respondents-appellees, 59 F.3d 167 (4th Cir. 1995)

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U.S. Court of Appeals for the Fourth Circuit - 59 F.3d 167 (4th Cir. 1995) Submitted: May 18, 1995. Decided: June 26, 1995

Phillip G. Smith, appellant pro se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, SC, for appellees.

Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


Appellant seeks to appeal the district court's order dismissing without prejudice 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