Derek Brown v. Warden of Perry Correctional, No. 13-7472 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7472 DEREK J. BROWN, Petitioner - Appellant, v. WARDEN OF PERRY CORRECTIONAL INSTITUTION, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Timothy M. Cain, District Judge. (0:12-cv-02988-TMC) Submitted: January 22, 2014 Decided: January 31, 2014 Before KING, SHEDD, and AGEE, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Derek J. Brown, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney General, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derek J. Brown appeals the district court s order adopting the magistrate judge s report and recommendation and dismissing his 28 U.S.C. § 2254 (2012) petition. On appeal, Brown contends that he did not receive the magistrate judge s report this and recommendation, assertion from the providing postal documentary director at his support for correctional institution. A party who fails to object in writing to a magistrate judge s proposed findings of fact and conclusions of law is not entitled to de determinations novo and review is determinations on appeal. 46 (4th Cir. 1985). of barred the from judge s contesting these Wright v. Collins, 766 F.2d 841, 845- The waiver is a default and does not affect jurisdiction. U.S. 140, 154 (1985). magistrate result of procedural Thomas v. Arn, 474 When a litigant is proceeding pro se, he must be given fair notice of the consequences of failing to object before a procedural default will apply. Wright, 766 F.2d at 846. From the record presented, we cannot fairly determine whether Brown received a copy of the magistrate judge s report and recommendation, or was notified of his right to file timely objections and the consequences of failing to do so. Accordingly, we vacate the decision of the district court and 2 remand so that the district court can make that determination. Should the district court find Brown credible in this regard, it can provide him with the report and requisite information and an opportunity to file objections. If, on the other hand, the court finds that Brown did receive the report in its initial mailing, it can reenter its original order, with any necessary modifications. We deny as moot Brown s motion to abey. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED AND REMANDED 3

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