McNeil v. Evatt ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES ELLIOTT MCNEIL,
Petitioner-Appellant,
v.
No. 95-7472
PARKER EVATT; ATTORNEY
GENERAL OF THE STATE OF SOUTH
CAROLINA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Matthew J. Perry, Jr., Senior District Judge.
(CA-95-201-2-OAJ)
Submitted: March 12, 1996
Decided: March 28, 1996
Before MURNAGHAN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James Elliott McNeil, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
James Elliott McNeil appeals from the district court's order adopt-
ing the magistrate judge's report and recommendation and denying
McNeil's 28 U.S.C. § 2254 (1988) petition. After reviewing the evi-
dence submitted, the magistrate judge recommended granting
Respondents' motion for summary judgment. McNeil was not noti-
fied of the consequences of failing to file objections, and he did not
object to the recommendation. The district court accepted the magis-
trate judge's recommendation and denied the § 2254 petition.
Failure to notify the litigant that he may file objections and that
failure to file objections waives appellate review may be harmless
error if objections were filed or if the district court conducts a de novo
review. See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981).
Here, McNeil did not file objections. Also, we are unable to tell from
the order adopting the magistrate's report whether a proper de novo
review of the record was conducted. See Orpiano v. Johnson, 687
F.2d 44, 48 (4th Cir. 1982).
The district court may not rely solely upon the magistrate's sum-
mary of the evidence because "an appellate court must be satisfied
that a district court has exercised his nondelegable authority by con-
sidering the actual testimony, and not merely by reviewing the magis-
trate's report and recommendation." Wimmer v. Cook, 774 F.2d 68,
76 (4th Cir. 1985) (quoting United States v. Elsoffer, 644 F.2d 357,
359 (5th Cir. 1981)).
Because the record does not reveal whether McNeil was notified
that failure to object to the magistrate judge's recommendation
waives appellate review and because the record does not disclose that
the district court conducted a de novo review in the absence of such
notice or objections, we grant a certificate of probable cause to
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appeal, vacate the district court's order, and remand with instructions
for the district court to conduct a de novo review or to clarify whether
a de novo review was conducted. 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.
VACATED AND REMANDED
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