UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-6395

CARLOS GOMEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-85-98, CA-95-213-2)

Submitted: July 30, 1996

Decided: August 23, 1996

Before HALL and ERVIN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Carlos Gomez, Appellant Pro Se. David Bernard Smith, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Carlos Gomez appeals the dismissal of his motion filed pursuant to
28 U.S.C. § 2255 (1988), as amended by Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1217. The
case was referred to a magistrate judge for a report and recommenda-
tion pursuant to 28 U.S.C.A. § 636(b)(1) (West 1993). On January 29,
1996, the magistrate judge filed a recommendation that the petition
be dismissed. Attached to the magistrate judge's report and recom-
mendation was a notice stating that objections were to be filed within
ten days. Computing the time for objections in accordance with Fed.
R. Civ. P. 6(a), (e), 72(b), Gomez's objections were due on February
15.

In an order filed February 21, the district court noted that no objec-
tions to the magistrate judge's recommendation had been filed and
adopted the recommendation without a de novo review. On March 7,
Gomez filed a notice of appeal. On April 8, Gomez filed a motion in
this court seeking remand to the district court for consideration of his
objections. Gomez contends that he did not receive the magistrate
judge's report until February 29 due to his prison transfer. Attached
to Gomez's motion is a letter from R. Lavella, Gomez's case manager
at the Federal Correctional Institution in Allenwood, Pennsylvania,
where Gomez is currently incarcerated. Lavella's letter corroborates
Gomez's assertions.

A counselled litigant who fails to object in writing within ten days
to a magistrate judge's proposed findings of fact and conclusions of
law is not entitled to de novo review of the magistrate judge's deter-
minations, see 28 U.S.C.A. § 636(b)(1)(B) (West 1993), and is barred
from contesting these determinations on appeal. See Wright v. Collins,

, 845-46 (4th Cir. 1985). However, the waiver applied
for failure to file objections is a prudential rule, not a jurisdictional
requirement. See United States v. Schronce, 

, 93-94 (4th
Cir.), cert. denied, 

(1984). Consequently, when a liti-
gant is proceeding pro se, we have held that he must be given fair
notice of the consequences of failing to object before a default will
result. See 

.

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When objections have been filed, de novo review of a magistrate
judge's determinations by an Article III judge is not only required by
statute, see Orpiano v. Johnson, 

, 47-48 (4th Cir. 1982),
but is indispensable to the constitutionality of the Magistrate Judge's
Act. See United States v. Raddatz, 

, 681-82 (1980). If
Gomez's contentions are true, he timely received neither the magis-
trate judge's report nor notice of the consequences of failing to object
to the report. Because delays in delivery of mail--over which prison-
ers have no control--can justify the untimely filing of objections, see
Grandison v. Moore, 

, 149 (3d Cir. 1986), we hold that
Gomez should be permitted to prove in the district court that he did
not receive proper notice.

Accordingly, we vacate the order of the district court and remand
so that the district court can determine whether Gomez timely
received the report and recommendation. If the district court deter-
mines that the report was not timely received by Gomez, the court
should permit Gomez to file objections and then conduct the requisite
review. Should the court find that Gomez did receive proper notice,
it should reinstate its dismissal of the § 2255 motion. We therefore
grant Gomez's motion to remand. 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.

VACATED AND REMANDED

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