UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-6028

LEROY SHAW,

Petitioner - Appellant,

versus

STATE OF SOUTH CAROLINA; ROBERT WARD, Warden of Evans Correctional Institution; WILLIAM GUNN, Director of the South Carolina Depart- ment of Probation, Parole, and Pardon Ser- vices; 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 Rock Hill. Henry M. Herlong, Jr., District Judge. (CA-96-249-20-BD)

Submitted: January 20, 1998 Decided: February 18, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Leroy Shaw, 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Unpublished opinions are not binding precedent in this circuit.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:

Leroy Shaw appeals the district court's order denying his

motion for a certificate of probable cause so that he may appeal

the district court's dismissal of his request for habeas corpus

relief. Shaw's case was referred to a magistrate judge pursuant to

(b)(1)(B) (1994). The magistrate judge recommended that Shaw's habeas petition be dismissed based on his failure to

exhaust state remedies, and advised Shaw that his failure to file

timely objections to this recommendation could waive appellate

review of a district court order based upon the recommendation. Despite this warning, Shaw failed to object to the magistrate

judge's recommendation, which the district court adopted.

The timely filing of objections to a magistrate judge's rec-

ommendation is necessary to preserve appellate review of the sub-

stance of that recommendation when the parties have been warned

that failure to object will waive appellate review. Wright v. Collins,

(4th Cir. 1985). See generally Thomas

v. Arn,

(1985). Shaw waived appellate review by failing to file objections after receiving proper notice. In view

of this waiver, we find the propriety of the district court's deci-

sion to deny a certificate of probable cause to appeal to be moot.

Even if we were to find that Shaw made the requisite showing for

issuance of a certificate of probable cause, he would not receive

appellate review in light of his waiver.

Accordingly, we deny a certificate of probable cause to

appeal, see Lindh v. Murphy,

,

, 2068

2 (1997), and dismiss this 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 deci-

sional process.

DISMISSED

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