Brown v. Warden of Perry Correctional Institution ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7472
DEREK J. BROWN,
Petitioner - Appellant,
v.
WARDEN OF PERRY CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Timothy M. Cain, District Judge.
(0:12-cv-02988-TMC)
Submitted: January 22, 2014 Decided: January 31, 2014
Before KING, SHEDD, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Derek J. Brown, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek J. Brown appeals the district court’s order
adopting the magistrate judge’s report and recommendation and
dismissing his 28 U.S.C. § 2254 (2012) petition. On appeal,
Brown contends that he did not receive the magistrate judge’s
report and recommendation, providing documentary support for
this assertion from the postal director at his correctional
institution.
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 de novo review of the magistrate judge’s
determinations and is barred from contesting these
determinations on appeal. Wright v. Collins, 766 F.2d 841, 845-
46 (4th Cir. 1985). The waiver is a result of procedural
default and does not affect jurisdiction. Thomas v. Arn, 474
U.S. 140, 154 (1985). 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 846.
From the record presented, we cannot fairly determine
whether Brown received a copy of the magistrate judge’s report
and recommendation, or was notified of his right to file timely
objections and the consequences of failing to do so.
Accordingly, we vacate the decision of the district court and
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remand so that the district court can make that determination.
Should the district court find Brown credible in this regard, it
can provide him with the report and requisite information and an
opportunity to file objections. If, on the other hand, the
court finds that Brown did receive the report in its initial
mailing, it can reenter its original order, with any necessary
modifications.
We deny as moot Brown’s motion to abey. We 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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