United States v. Maddox

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-7309 DON RICO MADDOX, Defendant-Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert J. Staker, Senior District Judge. (CR-94-21, CA-95-1137-3) Submitted: March 31, 1997 Decided: April 22, 1997 Before ERVIN and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge. _________________________________________________________________ Dismissed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Don Rico Maddox, Appellant Pro Se. Paul Thomas Farrell, Assistant United States Attorney, Huntington, West Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Don Maddox seeks to appeal the district court's order and order on reconsideration denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). Maddox's case was referred to a magis- trate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (1994). The magis- trate judge recommended that relief be denied and advised Maddox that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recom- mendation. Despite this warning, Maddox failed to object to the mag- istrate judge's recommendation. The timely filing of objections to a magistrate judge's recommen- dation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Maddox has waived appellate review of the district court's underlying order denying his § 2255 motion by failing to file objec- tions after receiving proper notice. Moreover, we find that the district court did not abuse its discretion by denying Maddox's motion for reconsideration, see Temkin v. Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir. 1991), because the motion did not even address Maddox's failure to timely raise objections, which was the basis for the district court's denial of relief. We accordingly deny a certificate of appealability and dismiss the appeal. 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. DISMISSED 2