United States v. Smith

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-6339

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RUDI BERNARD SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Southern Dis- trict of West Virginia, at Charleston. Charles H. Haden II, Chief District Judge. (CR-88-200, CA-96-887-2)

Submitted: July 2, 1998 Decided: July 16, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and HALL, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Rudi Bernard Smith, Appellant Pro Se. Amy Michelle Lecocq, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellant appeals the district court’s order denying his

motion pursuant to Fed. R. Civ. P. 59 to reconsider the denial of

his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion. We have

reviewed the record and the district court’s opinions and find no

reversible error. The district court dismissed the case after Ap-

pellant failed to file objections to the magistrate judge’s report

and recommendation. We note that Appellant’s Rule 59 motion could

not be construed as objections to the magistrate judge’s report

because they were not filed within the time period set for filing

such objections. Accordingly, we deny a certificate of appealabil-

ity and dismiss on the reasoning of the district court. United

States v. Smith, Nos. CR-88-200; CA-96-887-2 (S.D.W. Va., Feb. 4 &

27, 1997). 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.

DISMISSED