UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY LEON MORTON,

Petitioner-Appellant,

v.

No. 98-6066

NORTH CAROLINA ATTORNEY

GENERAL; RICK JACKSON,

Respondents-Appellees.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Richard C. Erwin, Senior District Judge.

(CA-97-27-2)

Submitted: October 6, 1998

Decided: October 29, 1998

Before ERVIN, WILLIAMS, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Gary Leon Morton, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Gary Leon Morton appeals a district court's order denying certification of a legal issue for interlocutory appeal. Morton filed a 28

U.S.C.A. § 2254 (West 1994 & Supp. 1998) petition in the district

court. The case was referred to a magistrate judge. The magistrate

judge dismissed the petition without prejudice to filing a new petition

because Morton did not fill out the § 2254 application correctly. Morton then filed a motion requesting that the limitations period of 28

U.S.C.A. § 2244(d)(1) (West Supp. 1998) be tolled. The magistrate

judge filed an order granting Morton until May 6, 1997, to file a

proper petition. On October 2, 1997, Morton filed another motion to

further stay the running of the limitations period. The magistrate

judge denied Morton's request on October 15, 1997.

Morton next filed a document on October 29, 1997, titled "Interlocutory Appeal." The filing moved the district court "for further review

of the order issued by the United States Magistrate . . . filed: 15 October 1997." (R. 9). Morton stated that he was filing the interlocutory

appeal under the Federal Rules of Appellate Procedure. However, he

directed his motion to the district court, asked that court to review the

magistrate judge's order, and did not mention the Fourth Circuit or

the Court of Appeals anywhere in his pleading.* Morton's motion

details the merits of his last motion for stay of the statute of limitations period that was denied by the magistrate judge. Under the heading of "Relief Sought," Morton requested that the district court review

all materials and grant him the opportunity to submit his habeas petition. The district court construed Morton's "interlocutory appeal" as

a motion for certification of an interlocutory appeal under 28 U.S.C.

§ 1292(b)(1994).

Under 28 U.S.C. § 636(b)(1)(A) (West 1993 & Supp. 1998), nondispositive pretrial matters, such as the limitations period issue here,

may be referred to a magistrate judge for hearing and determination.

A district judge may reconsider a magistrate judge's non-dispositive

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*To be a valid notice of appeal to this court, the pleading "must name

the court to which the appeal is taken." Fed. R. App. P. 3(c).

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ruling "where it has been shown that the magistrate's order is clearly

erroneous or contrary to law." Id.; see also Fed. R. Civ. P. 72(a), (b).

We find that the district court should have interpreted this filing as a

timely objection to a magistrate judge's order under 28 U.S.C.

§ 636(b)(1)(A) and Fed. R. Civ. P. 72(a). Morton's interlocutory

appeal did not use any language indicating that he was seeking certification under 28 U.S.C. § 1292(b). It sought review of the magistrate

judge's last order denying a further stay of the limitations period by

the district court and the opportunity to file his habeas petition. The

district court's order does not address the merits of Morton's claims

regarding the necessity for a further stay of the limitations period.

Because the district court order did not address the relief sought by

Morton, the order is vacated and the case remanded for reconsideration of the magistrate judge's order entered October 15, 1997.

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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