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  • Oxendine v. Lee, 4th Cir. (2007)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Jimmy Ray Oxendine. The district court had denied Oxendine's petition for habeas corpus relief under 28 U.S.C. § 2254. Oxendine failed to file timely objections to the magistrate judge's recommendation that relief be denied, despite being warned that this could waive his right to appellate review. As Oxendine did not preserve his right to appeal by objecting, the Fourth Circuit denies a certificate of appealability and dismisses the appeal.

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    Filed: 2007-08-29 Precedential Status: Non-Precedential Docket: 07-6510

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Jimmy Ray Oxendine. The district court had denied Oxendine's petition for habeas corpus relief under 28 U.S.C. § 2254. Oxendine failed to file timely objections to the magistrate judge's recommendation that relief be denied, despite being warned that this could waive his right to appellate review. As Oxendine did not preserve his right to appeal by objecting, the Fourth Circuit denies a certificate of appealability and dismisses the appeal.

    Copyright:

    Public Domain
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    7 views2 pages

    Oxendine v. Lee, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from Jimmy Ray Oxendine. The district court had denied Oxendine's petition for habeas corpus relief under 28 U.S.C. § 2254. Oxendine failed to file timely objections to the magistrate judge's recommendation that relief be denied, despite being warned that this could waive his right to appellate review. As Oxendine did not preserve his right to appeal by objecting, the Fourth Circuit denies a certificate of appealability and dismisses the appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-6510

    JIMMY RAY OXENDINE,


    Petitioner - Appellant,
    versus
    RANDALL
    LEE,
    Superintendent,
    Correctional Institution,

    Caledonia
    Respondent - Appellee.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. William L. Osteen, Senior
    District Judge. (1:06-cv-00355-WLO)

    Submitted:

    August 23, 2007

    Decided:

    August 29, 2007

    Before WILLIAMS, Chief Judge, and WILKINS and HAMILTON, Senior


    Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Jimmy Ray Oxendine, Appellant Pro Se. Clarence Joe DelForge, III,
    Mary Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
    North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Jimmy Ray Oxendine seeks to appeal the district courts
    order denying relief on his 28 U.S.C. 2254 (2000) petition.

    The

    district court referred this case to a magistrate judge pursuant to


    28 U.S.C. 636(b)(1)(B) (2000).

    The magistrate judge recommended

    that relief be denied and advised Oxendine 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, Oxendine failed to object to the magistrate
    judges recommendation.
    The timely filing of specific objections to a magistrate
    judges recommendation is necessary to preserve appellate review of
    the substance of that recommendation when the parties have been
    warned of the consequences of noncompliance.

    Wright v. Collins,

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

    Oxendine has waived appellate review by failing

    to timely file specific objections after receiving proper notice.


    Accordingly, we 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 -

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