Jordan Kinard v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999637466-2] Originating case number: 2:14-cv-00553-AWA-DEM Copies to all parties and the district court/agency. [999776261]. Mailed to: Jordan Kinard. [15-6922]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6922

JORDAN JOSEPH KINARD,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Arenda L. Wright Allen,
District Judge. (2:14-cv-00553-AWA-DEM)

Submitted:

November 13, 2015

Decided:

March 17, 2016

Before MOTZ, FLOYD, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Jordan Joseph Kinard, Appellant Pro Se. Katherine Quinlan
Adelfio, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jordan

Joseph

Kinard

appeals

the

district

court’s

order

adopting the magistrate judge’s report and recommendation and
dismissing his 28 U.S.C. § 2254 (2012) petition.

In its order,

the district court stated that Kinard had filed no objections to
the report and recommendation despite having been warned of the
consequences of failing to object.

On appeal, Kinard claims

that he did not receive the report and recommendation, making it
impossible to object.

He provides documentary support for his

claim.
A party who fails to object in writing to a magistrate
judge’s proposed findings of fact and conclusions of law is not
entitled

to

determinations
determinations

de

novo
and

on

review

of

is

barred

appeal.

Wright

845-46 (4th Cir. 1985).

the
from
v.

judge’s

contesting

Collins,

766

F.2d

those
841,

The waiver is a result of procedural

default and does not affect jurisdiction.
U.S. 140, 154 (1985).

magistrate

Thomas v. Arn, 474

When a litigant is proceeding pro se, he

must be given fair notice of the consequences of failing to
object before a procedural default will apply.

Wright, 766 F.2d

at 845-46.
From the record presented, we cannot conclusively determine
whether Kinard received a copy of the report and recommendation.
Accordingly, we vacate the decision of the district court and
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remand for the district court to make this determination in the
first instance.

Should the district court find Kinard’s claim

to be credible, it should provide him with a copy of the report
and recommendation and afford him an opportunity to object.

If,

however, the court finds that Kinard did receive the report and
recommendation,

it

may

reenter

its

original

order,

with

any

necessary modifications.
We grant leave to proceed in forma pauperis and dispense
with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.

VACATED AND REMANDED

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