UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

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

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Unpublished opinions are not binding precedent in this circuit.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:

John Avent Dowdy appeals the district court's order denying relief
on his 28 U.S.C. § 2255 (1988) petition. The magistrate judge consid-
ered 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 district
court, which adopted the magistrate judge's recommendation, like-
wise did not consider this claim. Because the claim was raised so late
in what were full proceedings before the magistrate judge, the magis-
trate 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
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1 In his lengthy petition Dowdy alleged at least five specific ways in
which his counsel was ineffective, but the failure to appeal was not men-
tioned.

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The judgment of the district court is affirmed. 2

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

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