UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-6489

LEON MONTGOMERY, Petitioner - Appellant, versus

STATE OF SOUTH CAROLINA; SOUTH CAROLINA DEPARTMENT OF CORRECTIONS; CHARLES CONDON, Attorney General of the State of South Carolina, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Henry M. Herlong, Jr., District Judge. (CA-96-286)

Submitted: September 11, 1997 Decided: September 22, 1997

Before RUSSELL, MURNAGHAN, and HAMILTON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Leon Montgomery, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Leon Montgomery appeals the district court's order granting the Government's motion for summary judgment in his 28 U.S.C.A.

§ 2254 (West 1994 & Supp. 1997) motion. Montgomery's case was re- ferred 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 Montgomery 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, Mont- gomery failed to object to the magistrate judge's recommendation.

The timely filing of objections to a magistrate judge's 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 generally Thomas v. Arn, 474 U.S. 140 (1985). Montgomery has waived appellate review by failing to file objections after receiving proper notice. Ac- cordingly, we deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the mate- rials before the court and argument would not aid the decisional process.

DISMISSED