                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


LARRY D. PHILLIPS,                     
               Petitioner-Appellant,
                 v.
                                                   No. 02-7165
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
               Respondent-Appellee.
                                       
           Appeal from the United States District Court
          for the Eastern District of Virginia, at Norfolk.
                 Rebecca B. Smith, District Judge.
                          (CA-01-700-2)

                      Submitted: October 18, 2002

                      Decided: November 1, 2002

      Before WIDENER and MICHAEL, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                              COUNSEL

Larry D. Phillips, Appellant Pro Se. Linwood Theodore Wells, Jr.,
Assistant Attorney General, Richmond, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                         PHILLIPS v. ANGELONE
                               OPINION

PER CURIAM:

   Larry Phillips appeals a district court’s order accepting a magistrate
judge’s recommendation to deny relief on his 28 U.S.C. § 2254
(2000) petition. The record reveals that Phillips filed a § 2254 petition
in the U.S. District Court for the Eastern District of Virginia at Nor-
folk. That same day, the case was referred to Magistrate Judge James
Bradberry, pursuant to 28 U.S.C. § 636(b)(1)(B) (2000). After Magis-
trate Judge Bradberry entered a Report and Recommendation, recom-
mending that the district court deny relief on Phillips’ § 2254 petition,
Phillips filed a motion to amend his petition, seeking to delete unex-
hausted claims and asserting the propriety of going forward on the
issue of the failure to instruct the jury on his eligibility for parole.
This filing was deemed a timely objection to the magistrate judge’s
report and recommendation. On July 31, 2002, a final order was
entered denying the petition and entering judgment in favor of the
Respondent. The court stated that it "adopt[ed] and approve[d] the
findings and recommendations set forth in the Report of the United
States Magistrate Judge filed July 12, 2002." This final order was
signed by James Bradberry as United States District Judge.

   Here, we are presented with a unique situation in which the magis-
trate judge entered his report and recommendation, but then, on behalf
of the district court, also signed the district court’s final order accept-
ing his own recommendation. Because Phillips’ filing was considered
an objection to the magistrate judge’s report and recommendation, he
was entitled to de novo review by the district court. 28 U.S.C.
§ 636(b)(1) (2000); see also Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982) (providing that after any party serves written objections to
the magistrate judge’s proposed findings and recommendations, the
district court judge must then make a de novo determination of those
portions of the report or specified proposed findings or recommenda-
tions to which objection is made). Because Phillips did not receive de
novo review of the claim to which he filed an objection, we grant a
certificate of appealability, and vacate and remand the court’s order
for proceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pre-
                       PHILLIPS v. ANGELONE                      3
sented in the materials before the court and argument would not aid
the decisional process.

                                     VACATED AND REMANDED
