United States v. Brown

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7297

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JIMMY O’NEAL BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. David A. Faber, Chief District Judge. (CR-98-189; CA-01-410-5)

Submitted: May 31, 2005 Decided: June 28, 2005

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Jimmy O’Neal Brown, Appellant Pro Se. Michael Harvard Spencer, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia; Miller A. Bushong, III, Assistant United States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Jimmy O’Neal Brown appeals from the district court’s

order denying relief on his 28 U.S.C. § 2255 (2000) motion. The

district court denied relief following the recommendation of the

magistrate judge. Although we express no opinion regarding the

merits of Brown’s § 2255 motion, we grant a certificate of

appealability, vacate the district court’s order, and remand for

further proceedings.

The magistrate judge’s recommendation was filed on

July 25, 2001. On August 13, Brown filed objections dated

August 6. The district court determined that the objections were

untimely and, thus, did not consider them in its order and did not

make a decision on the disputed issues de novo. We find that

Brown’s objections were timely filed. See Fed. R. Civ. P. 6(a),

(e), 72(a); Houston v. Lack, 487 U.S. 266, 276 (1988).

Under 28 U.S.C. § 636(b) (2000), the district court is

obligated to review de novo the portions of the magistrate judge’s

recommendation to which timely objections are filed. United

States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984). Because

Brown made timely objections to the magistrate judge’s

recommendation, the district court’s error was not harmless. See

Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).

Accordingly, we grant leave to proceed in forma pauperis,

grant a certificate of appealability, vacate the district court’s

- 2 - order and remand the matter for the district court to conduct the

required de novo review. 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.

VACATED AND REMANDED

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