Stanley Ronald Austin v. Mr. Winebrenner, Warden

798 F.2d 1408
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Stanley Ronald AUSTIN, Plaintiff-Appellant,
v.
Mr. WINEBRENNER, Warden, Defendant-Appellee.

No. 86-6605.

United States Court of Appeals, Fourth Circuit.

Submitted June 23, 1986.
Decided Aug. 26, 1986.

Stanley Ronald Austin, appellant pro se.

Stephen H. Sachs, Valerie V. Cloutier, Office of the Attorney General, for appellee.

D.Md.

DISMISSED.

Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.

PER CURIAM:

1

Stanley Ronald Austin, a Maryland inmate, seeks to appeal the district court order dismissing his 28 U.S.C. 5 2254 petition as an abuse of the writ. The district court referred Austin's petition to a magistrate pursuant to 28 U.S.C. 5 636(b)(1)(B). Upon consideration of the allegations raised in this and previous petitions, the magistrate directed Austin to explain his failure to raise the instant allegations in his prior federal habeas corpus petition. Finding Austin's explanation to be inadequate, the magistrate subsequently recommended that the petition be dismissed as an abuse of the writ.

2

Austin was notified that he had ten days in which to file objections to the magistrate's report. See 28 U.S.C. 5 636(b)(1)(C). He failed to file objections, and the district court adopted the magistrate's recommendation and dismissed the petition as an abuse of the writ pursuant to Rule 9(b) of the Rules Governing Title 28 Section 2254 Cases.

3

This Court has held that the failure to file timely objections to a magistrate's report waives appellate review of the substance of that report where the parties have been warned that failure to object will waive appellate review. wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984), cert. denied, U.S., 54 U.S.L.W. 3392 (Dec. 9, 1985). The use of this procedure was recently upheld by the Supreme Court in Thomas v. Arn, U.S., 54 yet failed to file objections, he has waived his right to appellate review.

4

Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument and dismiss the appeal.

5

DISMISSED.