UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES ELLIOTT MCNEIL,

Petitioner-Appellant,

v.

No. 95-7472

PARKER EVATT; ATTORNEY

GENERAL OF THE STATE OF SOUTH

CAROLINA,

Respondents-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Matthew J. Perry, Jr., Senior District Judge.

(CA-95-201-2-OAJ)

Submitted: March 12, 1996

Decided: March 28, 1996

Before MURNAGHAN and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

James Elliott McNeil, 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

James Elliott McNeil appeals from the district court's order adopting the magistrate judge's report and recommendation and denying

McNeil's 28 U.S.C. § 2254 (1988) petition. After reviewing the evidence submitted, the magistrate judge recommended granting

Respondents' motion for summary judgment. McNeil was not notified of the consequences of failing to file objections, and he did not

object to the recommendation. The district court accepted the magistrate judge's recommendation and denied the § 2254 petition.

Failure to notify the litigant that he may file objections and that

failure to file objections waives appellate review may be harmless

error if objections were filed or if the district court conducts a de novo

review. See Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981).

Here, McNeil did not file objections. Also, we are unable to tell from

the order adopting the magistrate's report whether a proper de novo

review of the record was conducted. See Orpiano v. Johnson, 687

F.2d 44, 48 (4th Cir. 1982).

The district court may not rely solely upon the magistrate's summary of the evidence because "an appellate court must be satisfied

that a district court has exercised his nondelegable authority by considering the actual testimony, and not merely by reviewing the magistrate's report and recommendation." Wimmer v. Cook, 774 F.2d 68,

76 (4th Cir. 1985) (quoting United States v. Elsoffer, 644 F.2d 357,

359 (5th Cir. 1981)).

Because the record does not reveal whether McNeil was notified

that failure to object to the magistrate judge's recommendation

waives appellate review and because the record does not disclose that

the district court conducted a de novo review in the absence of such

notice or objections, we grant a certificate of probable cause to

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appeal, vacate the district court's order, and remand with instructions

for the district court to conduct a de novo review or to clarify whether

a de novo review was conducted. 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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