Wallace T. Lester v. Captain Raymond Hayes Attorney General of North Carolina, Defendants , 808 F.2d 835 ( 1986 )

808 F.2d 835
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Wallace T. LESTER, Plaintiff-Appellant,
v.
Captain Raymond HAYES; Attorney General of North Carolina,
Defendants- Appellees.

No. 86-6660.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 3, 1986.
Decided Dec. 31, 1986.

Before SPROUSE, CHAPMAN and WILKINSON, Circuit Judges.

Wallace T. Lester, pro se.

Richard N. League, Office of the Attorney General, for appellees.

PER CURIAM:

1

Wallace T. Lester, a North Carolina inmate, seeks to appeal the district court's denial of habeas corpus relief. 28 U.S.C. Sec. 2254. Lester's habeas petition was referred to a magistrate who, after review and analysis of Lester's claims, recommended that relief be denied. Lester was notified of his right to object to the magistrate's recommendation and was advised that the failure to object would result in a waiver of appellate review. See Thomas v. Arn, --- U.S. ---, 54 U.S.L.W. 4032 (Dec. 4, 1985); Wright v. Collins, 766 F.2d 841 (4th Cir.1985). Lester filed no objections, and the district court adopted the magistrate's recommendation.

2

Lester noted this appeal. He failed, however, to file his notice of appeal within thirty days of entry of judgment as required by Fed.R.App.P. 4(a)(1). Moreover, he failed to request within the additional thirty-day period provided by Fed.R.App.P. 4(a)(5) that the district court grant an extension of the appeal period based upon excusable neglect. Under these circumstances, we are without jurisdiction to consider the appeal. Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 (1984).

3

We therefore deny a certificate of probable cause to appeal and dismiss Lester's appeal as untimely. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.