Joseph Alphonso Smith v. Allyn R. Sielaff, Director of the Virginia Department of Corrections

798 F.2d 1409, 1986 U.S. App. LEXIS 18299, 1986 WL 17224

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 13, 1986
• Docket: 85-7546
• Status: Unpublished

Opinion

798 F.2d 1409
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Joseph Alphonso SMITH, Appellant,
v.
Allyn R. SIELAFF, Director of the Virginia Department of
Corrections, Appellee.

No. 85-7546.

United States Court of Appeals, Fourth Circuit.

Submitted May 20, 1986.
Decided Aug. 13, 1986.

Joseph Alphonso Smith, appellant pro se.

Robert H. Anderson, III, Asst. Atty. Gen., for appellee.

E.D.Va.

DISMISSED.

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

PER CURIAM:

Joseph Alphonso Smith, a Virginia inmate, seeks to appeal the judgment of the district court dismissing his petition for a writ of habeas corpus. The district court referred the petition to a magistrate pursuant to 28 U.S.C. S 636(b). After review and deliberation, the magistrate issued a report of his findings and recommendations. Smith was notified that he had thirteen days in which to file objections to the magistrate's report. See 28 U.S.C. S 636(b)(1)(C). He failed to file objections, and the district court adopted the magistrate's recommendation and dismissed the petition.

This Court has held that the failure to file timely objections to a magistrate's report waives appellate review of the substance of that report where the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Carr v. Hut 737 F.2d 433 (4th Cir. 1984), cert. denied, --U.S. I 54 U.S.L.W. 3392 (Dec. 9, 1985). The use of this procedure was recently upheld by the Supreme Court in Thomas v. Arn, U.S. I54 U.S.L. W. 4032 (Dec. 4, 1985). As Smith was properly warned, and yet failed to file objections, he has waived his right to appellate review.

Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, deny a certificate of probable cause to appeal, and dismiss the appeal.

DISMISSED .