Walker v. Miller

138 F. App'x 360

• Court: Court of Appeals for the Second Circuit
• Decided: June 29, 2005
• Docket: Docket No. 04-1482-PR
• Status: Published

Opinion

SUMMARY ORDER

Petitioner-appellant Vincent Walker appeals from an order entered by Magistrate Judge Andrew Jay Peck on July 16, 2003, denying his request to reinstate his federal habeas petition. See Warren v. Garvin, 219 F.3d 111 (2d Cir.2000). We assume familiarity as to the facts, the procedural context, and the specification of the issue on appeal.

Absent consent of the parties to the jurisdiction of Magistrate Judge Peck, this Court lacks jurisdiction to review the Magistrate Judge’s order dismissing this case. That order is in the nature of a recommendation to the district court. Any objections to such a recommendation must be addressed to the district court within ten days, see 28 U.S.C. § 636(b)(1), and pro se litigants must be expressly informed of the ten-day requirement, Small v. Sec’y of Health & Human Servs., 892 F.2d 15 (2d Cir.1989) (per curiam). As far as we can tell from the record, Walker was not informed, no objection was made, and no final order by the district court issued. Accordingly, we lack jurisdiction over Walker’s appeal.¹

Walker’s appeal is therefore DISMISSED.

1 . We note in passing that had the Magistrate Judge's order been a final judgment, Walker’s notice of appeal would have been untimely filed. See Fed. R.App. P. 4(a)(1)(A); Fed. R.App. P. 4(c)(1).