United States v. Albert Pop Lincoln

14 F.3d 597, 1993 U.S. App. LEXIS 37095, 1993 WL 525645

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 20, 1993
• Docket: 93-6334
• Status: Published

Opinion

14 F.3d 597
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee,
v.
Albert Pop LINCOLN, Defendant-Appellant.

No. 93-6334.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 7, 1993.
Decided Dec. 20, 1993.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg.

Michael Jeffrey Thompson, for appellant.

Robert Claude Jendron, Jr., and Mark C. Moore, Asst. U.S. Attys., for appellee.

D.S.C.

VACATED AND REMANDED.

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

PER CURIAM:

OPINION

Albert "Pop" Lincoln appeals from the district court's denial of his 28 U.S.C. Sec. 2255 (1988) motion. The district court denied the motion upon recommendation by a magistrate judge. Although we express no opinion as to the ultimate success of Lincoln's claims, we vacate the district court's order and remand for further proceedings.

Lincoln timely noted objections to the magistrate judge's report and recommendation that his motion be denied. The district court, however, failed to state that it conducted a review of the record as to those objections and made a decision on the disputed issues de novo. This de novo review is required. 28 U.S.C.A. Sec. 636(b)(1) (West Supp.1993). Because Lincoln made specific objections to the magistrate judge's findings, the district court's error was not harmless. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982).

Therefore, we vacate the district court's order and remand the matter for the district court to conduct the required de novo review and issue a decision or to state that it conducted such review before rendering its previous decision. 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.