United States v. Clarke

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-7440

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL WALFORD CLARKE, a/k/a G,

Defendant - Appellant.

Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Greensboro. N. Carlton Tilley, Jr., District Judge. (CR-92-75, CA-97-734-1)

Submitted: March 25, 1999 Decided: March 30, 1999

Before WILKINS and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Michael Walford Clarke, Appellant Pro Se. Robert Michael Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Walford Clarke appeals the district court’s orders (1)

affirming the magistrate judge’s order denying his motion for an

extension of time to file objections and (2) denying his motion

filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). Clarke’s

case was referred to a magistrate judge pursuant to 28 U.S.C.

§ 636(b)(1)(B) (1994). The magistrate judge recommended that re-

lief be denied and advised Clarke that the failure to file timely

objections to this recommendation could waive appellate review of

a district court order based upon the recommendation. Despite this

warning, Clarke failed to object to the magistrate judge’s recom-

mendation. Rather, he moved for an extension of time to file ob-

jections. Finding no reversible error in the denial of the motion

for an extension of time, we affirm this order.

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. See Wright v.

Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v.

Schronce, 727 F.2d 91, 93-94 (4th Cir.), cert. denied, 467 U.S.

1208 (1984); see also Thomas v. Arn, 474 U.S. 140 (1985). Clarke

has waived appellate review by failing to file objections after

receiving proper notice. We accordingly deny Clarke’s motion for

preparation of a transcript at government expense and affirm the

2 order denying Clarke’s motion for an extension of time. We also

deny a certificate of appealability and dismiss Clarke’s appeal

from the denial of his § 2255 motion. 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.

AFFIRMED IN PART; DISMISSED IN PART