Jordan Joseph Kinard v. HAROLD W. CLARKE, Director of the Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6922
JORDAN JOSEPH KINARD,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:14-cv-00553-AWA-DEM)
Submitted: November 13, 2015 Decided: March 17, 2016
Before MOTZ, FLOYD, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jordan Joseph Kinard, Appellant Pro Se. Katherine Quinlan
Adelfio, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

2
PER CURIAM:
Jordan Joseph Kinard appeals the district court’s order
adopting the magistrate judge’s report and recommendation and
dismissing his 28 U.S.C. § 2254 (2012) petition. In its order,
the district court stated that Kinard had filed no objections to
the report and recommendation despite having been warned of the
consequences of failing to object. On appeal, Kinard claims
that he did not receive the report and recommendation, making it
impossible to object. He provides documentary support for his
claim.
A party who fails to object in writing 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
determinations and is barred from contesting those
determinations on appeal. Wright v. Collins, 766 F.2d 841,
845-46 (4th Cir. 1985). The waiver is a result of procedural
default and does not affect jurisdiction. Thomas v. Arn, 474
U.S. 140, 154 (1985). When a litigant is proceeding pro se, he
must be given fair notice of the consequences of failing to
object before a procedural default will apply. Wright, 766 F.2d
at 845-46.
From the record presented, we cannot conclusively determine
whether Kinard received a copy of the report and recommendation.
Accordingly, we vacate the decision of the district court and

-- 2 of 3 --

3
remand for the district court to make this determination in the
first instance. Should the district court find Kinard’s claim
to be credible, it should provide him with a copy of the report
and recommendation and afford him an opportunity to object. If,
however, the court finds that Kinard did receive the report and
recommendation, it may reenter its original order, with any
necessary modifications.
We grant leave to proceed in forma pauperis and dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED AND REMANDED

-- 3 of 3 --