UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY O’NEAL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-98-189; CA-01-410-5)
Submitted: May 31, 2005 Decided: June 28, 2005
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jimmy O’Neal Brown, Appellant Pro Se. Michael Harvard Spencer,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia;
Miller A. Bushong, III, Assistant United States Attorney, Beckley,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jimmy O’Neal Brown appeals from the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion. The
district court denied relief following the recommendation of the
magistrate judge. Although we express no opinion regarding the
merits of Brown’s § 2255 motion, we grant a certificate of
appealability, vacate the district court’s order, and remand for
further proceedings.
The magistrate judge’s recommendation was filed on
July 25, 2001. On August 13, Brown filed objections dated
August 6. The district court determined that the objections were
untimely and, thus, did not consider them in its order and did not
make a decision on the disputed issues de novo. We find that
Brown’s objections were timely filed. See Fed. R. Civ. P. 6(a),
(e), 72(a); Houston v. Lack, 487 U.S. 266, 276 (1988).
Under 28 U.S.C. § 636(b) (2000), the district court is
obligated to review de novo the portions of the magistrate judge’s
recommendation to which timely objections are filed. United
States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984). Because
Brown made timely objections to the magistrate judge’s
recommendation, the district court’s error was not harmless. See
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
Accordingly, we grant leave to proceed in forma pauperis,
grant a certificate of appealability, vacate the district court’s
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order and remand the matter for the district court to conduct the
required de novo review. 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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