Oxendine v. Lee

Filing 920070829

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-6510 JIMMY RAY OXENDINE, Petitioner - Appellant, versus RANDALL LEE, Superintendent, Correctional Institution, Caledonia Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Senior District Judge. (1:06-cv-00355-WLO) Submitted: August 23, 2007 Decided: August 29, 2007 Before WILLIAMS, Chief Judge, and WILKINS and HAMILTON, Senior Circuit Judges. Dismissed by unpublished per curiam opinion. Jimmy Ray Oxendine, Appellant Pro Se. Clarence Joe DelForge, III, Mary Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jimmy Ray Oxendine seeks to appeal the district court's order denying relief on his 28 U.S.C. 2254 (2000) petition. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. 636(b)(1)(B) (2000). The magistrate judge recommended that relief be denied and advised Oxendine that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Oxendine failed to object to the magistrate judge's recommendation. The timely filing of specific 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 of the consequences of noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Oxendine has waived appellate review by failing to timely file specific objections after receiving proper notice. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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 - 2 -

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