UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 99-6405

SHELBY L. COUNTS,

Petitioner - Appellant,

versus

RONALD J. ANGELONE, Director of the Virginia Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior Dis- trict Judge. (CA-98-336-2)

Submitted: September 30, 1999 Decided: October 6, 1999

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Shelby L. Counts, Appellant Pro Se. Linwood Theodore Wells, Jr., Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Shelby L. Counts appeals the district court’s order dismissing

his petition filed under

(West 1994 & Supp.

1999). Counts’ case was referred to a magistrate judge pursuant to

(b)(1)(B) (1994). The magistrate judge recommended

that relief be denied and advised Counts 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, Counts 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,

(4th Cir. 1985); see also Thomas v.

Arn,

(1985). Counts has waived appellate review by

failing to file objections after receiving proper notice. Accord-

ingly, we deny a certificate of appealibility and dismiss the ap-

peal. We deny Counts’ motion to proceed in forma pauperis and

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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