UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7577
RALPH RAMEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-92-140, CA-97-412-2)
Submitted: January 27, 1998
Decided: February 12, 1998
Before HALL, ERVIN, and MICHAEL, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Ralph Ramey, Appellant Pro Se. Michael Lee Keller, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ralph Ramey appeals from the district court's order denying relief
on Ramey's motion filed under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1997). The district court denied relief upon the recommenda-
tion of the magistrate judge. Although we express no opinion regard-
ing the merits of Ramey'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 stated that the parties had
thirteen days within which to file objections, not ten days as allowed
under 28 U.S.C. § 636(b) (1994), Fed. R. Civ. P. 72, and Rule 8(b)
of the Rules Governing Section 2255 Proceedings. There was no
other notice of the right to file objections attached to the recommen-
dation.
Ramey served objections to the recommendation on the thirteenth
calendar day. However, before the district court received a copy of
the objections, it issued an order adopting the magistrate judge's rec-
ommendation based on Ramey's failure to object. The district court
did not consider Ramey's objections in its order, and thus did not
make a decision on the disputed issues de novo.
Ramey gave his objections to prison officials for mailing within the
time limit set by the magistrate judge, so his objections are considered
timely. See Houston v. Lack, 487 U.S. 266, 276 (1988). Even if the
magistrate judge had given Ramey ten days to object, in accordance
with § 636(b) and the applicable rules, the objections would be timely
because intervening weekends and holidays would be excluded from
the calculation. See Fed. R. Civ. P. 6(a). Under 28 U.S.C. § 636(b),
the district court is obligated to review de novo those portions of the
magistrate judge's recommendation to which timely objections are
filed. See United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir.
1984). Because Ramey made timely objections to the magistrate's
recommendation, the district court's error was not harmless. See
Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir. 1982).
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Accordingly, we vacate the district court's 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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