UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-7473 JOHN AVENT DOWDY, Defendant-Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Richard C. Erwin, Senior District Judge. (CR-93-111, CA-94-532-1) Submitted: March 5, 1996 Decided: October 6, 1997 Before WIDENER, HALL, and MICHAEL, Circuit Judges.

_________________________________________________________________ Affirmed by unpublished per curiam opinion.

_________________________________________________________________ COUNSEL John Avent Dowdy, Appellant Pro Se. Lisa Blue Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding pr ecedent in this circuit.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

_________________________________________________________________OPINION PER CURIAM: John Avent Dowdy appeals the district court's order denying reliefon his 28 U.S.C. § 2255 (1988) petition. The magistrate judge considered the claims raised in Dowdy's petition and recommended that it be dismissed. The district court, after conducting a de novo review, adopted the magistrate judge's recommendation and entered judgment dismissing the petition. As to the claims addressed in the magistrate judge's recommendation and considered by the district court, we affirm on the reasoning of the district court. We cover one other matter. In his reply to the government's response filed before the magistrate judge, Dowdy claimed for the first time that his retained defense counsel was ineffective for failing to file a notice of appeal. 1 This claim was made in the last filing scheduled by the magistrate judge, and neither the government nor defense counsel in his affidavit had an opportunity to address it. Dowdy did not make a motion to amend his petition to add this claim. The magistrate judge did not consider the late claim, stating in his recommendation that he was ruling "on claims actually raised in the petition, not claims raised for the first time in reply." In his objections to the magistrate judge's recommendation filed with the district court, Dowdy noted that the magistrate judge had not considered Dowdy's claim that his counsel had failed to appeal. It appears that the districtcourt, which adopted the magistrate judge's recommendation, likewise did not consider this claim. Because the claim was raised so latein what were full proceedings before the magistrate judge, the magistrate judge and the district court did not err in declining to consider it. See Barrett v. United States , 965 F.2d 1184, 1186-88 (1st Cir. 1992).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.

_________________________________________________________________ 1 In his lengthy petition Dowdy alleged at least five specific ways inwhich his counsel was ineffective, but the failure to appeal was not mentioned. 2The judgment of the district court is affirmed. 2 AFFIRMED

_________________________________________________________________ 2 Dowdy's "motion for summary reversal" is denied. 3