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  • Kimmer v. Sutton, 4th Cir. (2001)

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    This document summarizes two appeals by Charles Allan Kimmer of the dismissal of his habeas corpus petition by the United States District Court for the Middle District of North Carolina. Kimmer's case was referred to a magistrate judge who recommended denying relief. Kimmer failed to file timely objections to the magistrate's recommendation, and as a result waived his right to appellate review. The United States Court of Appeals for the Fourth Circuit dismissed Kimmer's appeals, finding that he failed to preserve his right to appellate review by not objecting to the magistrate's recommendation.

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    Filed: 2001-12-12 Precedential Status: Non-Precedential Docket: 01-6035

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    This document summarizes two appeals by Charles Allan Kimmer of the dismissal of his habeas corpus petition by the United States District Court for the Middle District of North Carolina. Kimmer's case was referred to a magistrate judge who recommended denying relief. Kimmer failed to file timely objections to the magistrate's recommendation, and as a result waived his right to appellate review. The United States Court of Appeals for the Fourth Circuit dismissed Kimmer's appeals, finding that he failed to preserve his right to appellate review by not objecting to the magistrate's recommendation.

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    7 views4 pages

    Kimmer v. Sutton, 4th Cir. (2001)

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    This document summarizes two appeals by Charles Allan Kimmer of the dismissal of his habeas corpus petition by the United States District Court for the Middle District of North Carolina. Kimmer's case was referred to a magistrate judge who recommended denying relief. Kimmer failed to file timely objections to the magistrate's recommendation, and as a result waived his right to appellate review. The United States Court of Appeals for the Fourth Circuit dismissed Kimmer's appeals, finding that he failed to preserve his right to appellate review by not objecting to the magistrate's recommendation.

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 01-6035

    CHARLES ALLAN KIMMER,


    Petitioner - Appellant,
    versus
    ERNEST SUTTON,
    Respondent - Appellee.

    No. 01-7116

    CHARLES ALLAN KIMMER,


    Petitioner - Appellant,
    versus
    ERNEST SUTTON,
    Respondent - Appellee.

    Appeals from the United States District Court for the Middle District of North Carolina, at Durham. Frank W. Bullock, Jr., District
    Judge; Russell A. Eliason, Magistrate Judge. (CA-00-967-1)

    Submitted:

    November 20, 2001

    Decided:

    December 12, 2001

    Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

    Dismissed by unpublished per curiam opinion.


    Charles Allan Kimmer, Appellant Pro Se. Clarence Joe DelForge, III,
    OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
    Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Charles Allan Kimmer seeks to appeal the district courts
    order dismissing his petition filed under 28 U.S.C.A. 2254 (West
    1994 & Supp. 2001).

    Kimmers case was referred to a magistrate

    judge pursuant to 28 U.S.C. 636(b)(1)(B) (1994).

    The magistrate

    judge recommended that relief be denied and advised Kimmer that


    failure to file timely objections to this recommendation could
    waive appellate review of a district court order based upon the
    recommendation.

    Despite this warning, Kimmer failed to object to

    the magistrate judges recommendation.


    The timely filing of objections to a magistrate judges
    recommendation 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.

    See Wright v.

    Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also Thomas v.
    Arn, 474 U.S. 140 (1985).

    Kimmer has waived appellate review by

    failing to file objections after receiving proper notice. In addition, Kimmers challenges to the magistrate judges pre-judgment
    orders of December 14, 2000, and February 9, 2001, are without
    merit.
    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

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