                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-7713



PAUL FARMER,

                                              Petitioner - Appellee,

           versus


THOMAS    MCBRIDE,    Warden,     Mount    Olive
Correctional Complex,

                                             Respondent - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (CA-03-2077-5)


Argued:   March 15, 2006                    Decided:   April 26, 2006


Before MOTZ and TRAXLER, Circuit Judges, and James P. JONES, Chief
United States District Judge for the Western District of Virginia,
sitting by designation.


Dismissed by unpublished per curiam opinion.


ARGUED: Kristen Leigh Keller, RALEIGH COUNTY PROSECUTING ATTORNEY’S
OFFICE, Beckley, West Virginia, for Appellant. Geoffrey Jonathan
Michael, ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellee.
ON BRIEF: Sarah M. Brackney, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:


     Thomas McBride, Warden of the Mount Olive Correctional Complex

in West Virginia, appeals the district court’s order adopting the

findings and recommendation of the magistrate judge and granting

petitioner Paul Farmer a writ of habeas corpus pursuant to 28

U.S.C.A. § 2254 (West 1994 & Supp. 2005).    Because McBride failed

to file objections to the magistrate’s report and recommendation

with the district court, Farmer claims that McBride has waived his

right to appeal to this court.   We agree and, accordingly, dismiss

the appeal.1


                                 I.

     In June 1992, a West Virginia state court jury convicted

Farmer of first degree murder, kidnaping, and conspiracy, arising

out of the kidnaping and murder of John Maxwell in Raleigh County,

West Virginia.   Farmer was sentenced to two consecutive life terms

for the murder and kidnaping convictions, and to a concurrent term

of up to five years for the conspiracy conviction. The convictions

and sentence were affirmed on direct appeal.    See State v. Farmer,

445 S.E.2d 759 (W. Va. 1994) (per curiam).     Kristen Keller, Chief


     1
      At oral argument, Farmer challenged the panel as improperly
constituted because it includes a district court judge, who sits by
designation of the Chief Judge of this circuit. See 28 U.S.C.A.
§ 292 (West 1993). We thereafter afforded Farmer the opportunity
to file a supplemental brief on the issue. We reject the challenge
to the panel and hold that the district judge has been properly and
constitutionally designated to sit by the Chief Judge.

                                 2
Deputy Prosecuting Attorney for Raleigh County (the “Prosecuting

Attorney”), represented the State of West Virginia at trial, on

direct appeal, and in the following state habeas proceedings.

     On August 18, 2003, having unsuccessfully pursued state post-

conviction relief, Farmer filed against McBride a petition for writ

of habeas corpus in the district court under 28 U.S.C.A. § 2254.

Farmer raised several claims for relief, including claims that his

Sixth Amendment right to effective assistance of counsel was

violated by the trial court’s restriction of his access to counsel

during a weekend break in the trial, see Geders v. United States,

425 U.S. 80 (1976), and by his trial counsel’s alleged failure to

properly preserve the Geders claim on direct appeal, see Strickland

v. Washington, 466 U.S. 668 (1984).    The Office of the Attorney

General for the State of West Virginia (the “Attorney General”)

entered an appearance on behalf of McBride, and filed an answer,

motion to dismiss, and motion for summary judgment.

     Pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West Supp. 2005), the

case was referred to a magistrate judge for proposed findings and

a recommendation.   On August 30, 2004, the magistrate judge issued

his Proposed Findings and Recommendation that Farmer’s petition be

granted based on his Geders claim, but that the district court

reject Farmer’s remaining grounds for relief. Contained within the

Proposed Findings and Recommendation was a clear warning to the

parties that their failure to file timely written objections to the


                                 3
magistrate judge’s report “shall constitute a waiver of de novo

review by the District Court and a waiver of appellate review by

the Circuit Court of Appeals.”       J.A. 255.   Farmer filed timely

objections to those portions of the Findings and Recommendation

which rejected his additional claims for relief; McBride filed no

objections.

     On September 17, 2004, the district court noted the absence of

any objections on the part of McBride, conducted de novo review of

the issues raised by Farmer in his objections, and entered an order

adopting the magistrate judge’s recommendation to grant habeas

relief. Accordingly, the district court denied McBride’s motion to

dismiss and for summary judgment, granted Farmer habeas relief

under § 2254(d), and remanded the case to the Circuit Court of

Raleigh County.

     On October 18, 2004, after the Raleigh County Circuit Court

received notice of the remand, the Prosecuting Attorney filed a

notice of appearance and notice of appeal on behalf of McBride in

this court, seeking to appeal the district court’s grant of habeas

relief.   The Attorney General, however, made no effort to appeal

the district court’s decision on behalf of McBride, nor has it

appeared or offered any support of the appeal before this court.

     On January 24, 2005, Farmer moved to dismiss the appeal based

on McBride’s failure to object to the magistrate judge’s findings




                                 4
and recommendation.         We deferred action on the motion pending

formal briefing and oral argument.2


                                       II.

     The Federal Magistrate’s Act provides that “[w]ithin ten days

after being served with a copy, any party may serve and file

written objections to such proposed findings and recommendations as

provided by rules of court.”           28 U.S.C.A. § 636(b)(1); see also

Fed. R. Civ. P. 72(b) (providing that “[w]ithin 10 days after being

served   with   a   copy    of   the   [magistrate   judge’s]   recommended

disposition [of a prisoner petition], a party may serve and file

specific,   written    objections       to   the   proposed   findings   and

recommendations.”).        The district court is only required to review

de novo those portions of the report to which specific objections

have been made, see 28 U.S.C.A. § 636(b)(1),3 and need not conduct


     2
      Farmer has not filed a cross-appeal contesting the district
court’s denial of relief based upon the issues and objections that
he raised below.
     3
      See 28 U.S.C.A. § 636(b)(1)(“A judge of the court shall make
a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made. A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with instructions.”);
see also Fed. R. Civ. P. 72(b)(“The district judge to whom the case
is assigned shall make a de novo determination upon the record, or
after additional evidence, of any portion of the magistrate judge’s
disposition to which specific written objection has been made in
accordance with this rule. The district judge may accept, reject,
or modify the recommended decision, receive further evidence, or
recommit the matter to the magistrate judge with instructions.”).

                                        5
de    novo   review   “when    a   party    makes    general    and     conclusory

objections that do not direct the court to a specific error in the

magistrate judge’s proposed findings and recommendations,” Orpiano

v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).                In the absence of

objections, the district court is not required to explain its

reasons for adopting the report.           See Camby v. Davis, 718 F.2d 198,

200 (4th Cir. 1983).

       “The law in this circuit is clear.           If written objections to

a    magistrate   judge’s     recommendations       are   not   filed    with   the

district court within ten days, a party waives its right to an

appeal.”     Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir.

1997); see Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985)

(noting the general rule that “a party who fails to object to a

magistrate’s report is barred from appealing the judgment of a

district court adopting the magistrate’s findings”); see also

Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding “that a court of

appeals may adopt a rule conditioning appeal, when taken from a

district court judgment that adopts a magistrate’s recommendation,

upon the filing of objections with the district court identifying

those issues on which further review is desired”).                    As noted by

this court,

       the waiver rule advances the purposes of the Federal
       Magistrates Act.   It allows district courts to assign
       work to magistrate judges while reserving for themselves
       final authority over the judgments. The absence of a
       waiver rule would impose a serious incongruity on the
       district court’s decision-making process – vesting it

                                       6
     with the duty to decide issues based on the magistrate’s
     findings but depriving it of the opportunity to correct
     those findings when the litigant has identified a
     possible error.      Further, without a waiver rule,
     litigants would have no incentive to make objections at
     the trial level; in fact they might even be encouraged to
     bypass the district court entirely, even though Congress
     has lodged the primary responsibility for supervision of
     federal magistrates’ functions with that judicial body.

Wells, 109 F.3d at 200 (internal citations and quotation marks

omitted); see also Thomas, 474 U.S. at 147, 148 (noting that the

waiver rule “is supported by the sound considerations of judicial

economy” and “prevents a litigant from ‘sandbagging’ the district

judge by failing to object and then appealing”).

     McBride acknowledges our waiver rule, and does not dispute

that his failure to object within the time limit would ordinarily

constitute a waiver of his right to appeal.   His sole contention is

that we should exercise our discretion to permit the appeal under

the “interests of justice” exception to the waiver rule recognized

by the Supreme Court.   See Thomas, 474 U.S. at 155 (noting that

“because the rule is a nonjurisdictional waiver provision, the

Court of Appeals may excuse the default in the interests of

justice”).

     Although we have recognized that the “the [waiver] rule is not

absolute,” Wright, 766 F.2d at 845, we have thus far recognized an

exception only in the limited context of “procedural ambush.”

United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

Specifically, we have held that a pro se litigant’s failure to


                                7
object will not bar an appeal if the litigant “received no notice

of the consequences of a failure to object to the magistrate’s

report.”   Wright, 766 F.2d at 847.          We have, however, refused to

extend the exception to parties represented by counsel presumed to

know the applicable rules regarding their procedural obligations.

See Wells, 109 F.3d at 199-200.

      In this case, the Prosecuting Attorney urges us to expand the

interests-of-justice exception to the waiver in this case because

McBride believes he had meritorious objections that should have

been raised,4 the West Virginia Attorney General abandoned its

representation of McBride by failing to file those objections, and

the   conviction   was   for   a   serious    crime.   In   addition,   the

Prosecuting Attorney asserts that we should apply the exception

because she (as opposed to McBride) was procedurally ambushed by

the failure to receive notification of the magistrate judge’s

findings and recommendation.       The confluence of these factors, the

Prosecuting Attorney argues, makes this “just the extraordinary

case which the United States Supreme Court had in mind when it

‘emphasize[d] that . . . the Court of Appeals may excuse the




      4
      Specifically, McBride asserts that the West Virginia Supreme
Court’s adjudication of Farmer’s Sixth Amendment claim is not
contrary to nor an unreasonable application of Supreme Court
precedent and that the West Virginia Supreme Court’s alternative
decision to reject the claim based upon procedural default should
have precluded the grant of habeas relief.

                                      8
default in the interests of justice.’”        Brief of Appellant at 10

(quoting Thomas, 474 U.S. at 155).

       First, we are unpersuaded by the argument that McBride’s

default should be excused simply because the Prosecuting Attorney

did not receive notification of the magistrate’s findings and

recommendation in time to file objections.        McBride was properly

represented by the Attorney General’s Office in West Virginia,

which possesses clear statutory authority to represent such state

officials in federal habeas proceedings, and there is no dispute

that   the   Attorney   General   received   notice.   See   Manchin   v.

Browning, 296 S.E.2d 909, 918 (W. Va. 1982) (noting that the West

Virginia statutes clearly designate the Attorney General as the

legal advisor and representative of state officers sued in their

official capacities, and that the “Attorney General is required to

give legal advice, to prosecute and defend suits and to appear in

court on their behalf”); W. Va. Code § 5-3-1 (providing that “[t]he

attorney general . . . shall prosecute and defend suits, actions,

and other legal proceedings, and generally render and perform all

other legal services, whenever required to do so, in writing, by

the . . . head of any state educational, correctional, penal or

eleemosynary institution”); see also W. Va. Code § 5-3-2 (providing

that “[t]he attorney general shall appear as counsel for the state

in all causes pending in the supreme court of appeals, or in any




                                    9
federal      court,     in     which    the    state   is   interested.   .   .   .”).5

Accordingly, the district court had no obligation to notify the

Prosecuting Attorney in addition to the Attorney General of the

pending          proceedings    or     the    magistrate    judge’s   findings     and

recommendation.         See 28 U.S.C.A. § 2252 (West 1994) (“Prior to the

hearing of a habeas corpus proceeding in behalf of a person in

custody of State officers or by virtue of State laws notice shall

be served on the attorney general or other appropriate officer of

such State as the justice or judge at the time of issuing the writ

shall direct”). Thus, her failure to receive notice is not grounds

for excusing McBride’s default.

       There is also no support for the Prosecuting Attorney’s claim

that       the    Attorney     General       “abandoned”    its   representation    of

McBride; indeed, the record leads more logically to the conclusion

that the Attorney General simply made a reasonable choice not to



       5
      The statute also provides that the Attorney General “may
require the several prosecuting attorneys to perform, within the
respective counties in which they are elected, any of the legal
duties required to be performed by the attorney general which are
not inconsistent with the duties of the prosecuting attorneys as
the legal representatives of their respective counties.”        Id.
(emphasis added). There is no indication that the Attorney General
delegated its representation of McBride to the Prosecuting Attorney
at any point in these proceedings. However, at oral argument, the
Prosecuting Attorney asserted that she and the other local
prosecuting attorneys have such authority in the event the Attorney
General does not proceed further, and neither the parties, nor the
Attorney General, have challenged the Prosecuting Attorney’s
authority to represent McBride in these proceedings. Accordingly,
we assume that such authority was present for purposes of this
case.

                                               10
pursue     the   issue     in     the   wake    of    the    magistrate     judge’s

recommendation.     The magistrate judge issued his proposed findings

and recommendation in August 2004.              Although not required to do so

for McBride, who was represented by counsel, the magistrate judge’s

findings and recommendation specifically notified the parties of

their obligation to file objections in order to preserve any right

to de novo review by the district court or appellate review by the

court of appeals.        The district court issued its decision adopting

the recommendation on September 17, 2004.                 Approximately one week

later, the Circuit Court of Raleigh County received the remanded

file.    At no time during this process did the Attorney General seek

an extension from the district court to file objections, offer any

explanation for its decision not to file objections, or seek

reconsideration of the district court’s decision.                   In the month-

long interim between the issuance of the district court’s order and

the Prosecuting Attorney’s filing of an appeal to this court, the

Attorney General again made no efforts to challenge the district

court’s    decision.       The     Attorney     General     has   not   entered   an

appearance in this appeal, nor offered any assistance to the

Prosecuting Attorney in her pursuit of this appeal.                     Thus, while

Farmer argues that the purported “failures” on the part of the

Attorney    General      should    lead    us    to   the   conclusion     that   it

“abandoned” its representation of McBride, we are led to the much

different conclusion that the Attorney General, on behalf of


                                          11
McBride,   agreed     with     the    magistrate   judge’s    findings     and

recommendation, as well as the district court’s decision, and made

a conscious and voluntary choice not to file objections or pursue

an appeal to this court.

     In sum, we are unpersuaded by the Prosecuting Attorney’s claim

that we should excuse the waiver because the West Virginia Attorney

General’s Office failed to file objections and she did not receive

notice of the proceedings in time to file objections herself.              The

Attorney General was the appropriate state officer to represent

McBride and the appropriate entity to receive notice from the

court.   The magistrate judge’s findings and recommendation clearly

alerted all parties of their procedural obligations.              The record

before us indicates nothing other than that the Attorney General’s

decision   not   to   object    was    knowingly   and    voluntarily    made.

Furthermore, even if we were directed to evidence that the Attorney

General’s office was negligent in its duties, we would not excuse

the default.     McBride has pointed us to no case in which the

failure to object has been excused where the party who failed to

object was represented by counsel, and we have previously refused

to excuse such a default in a case where a prisoner who was

represented by counsel failed to timely file objections to a

magistrate’s recommendation.          See Wells, 109 F.3d at 199-200; cf.

28   U.S.C.A.    §    2254(I)    (providing    that      ineffectiveness    or

incompetence of counsel in a federal collateral post-conviction


                                       12
relief   proceeding   is   not   a   ground   for   relief   in   a   §   2254

proceeding).   We likewise decline to excuse the default, under an

“interests of justice” exception, simply because a party obtains

substitute counsel who wishes to undo his or her predecessor’s

failure to file objections in order to pursue an appeal.

     We are equally unpersuaded by McBride’s assertion that we

should exercise our discretion to excuse the default because he had

meritorious objections to the magistrate judge’s findings and

recommendation and because Farmer’s conviction involved the serious

crime of kidnaping and murder.

     As an initial premise, we note that McBride has pointed us to

no authority to support his claim that the seriousness of the crime

is a factor to be considered in determining whether a failure to

object should be excused.        This court has previously applied the

waiver rule in a case involving a state court conviction for a

serious crime, see Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984) (per

curiam) (holding that state prisoner, who had been convicted of

robbery, rape, abduction, and use of a firearm in the commission of

a felony, waived his right to appeal the district court’s denial of

his petition for writ of habeas corpus because he objected to

magistrate’s report after the deadline), and the Supreme Court did

not seem troubled by the fact that a state murder conviction was

before them when it upheld the circuit court’s authority to impose




                                     13
such a waiver, see Thomas, 474 U.S. at 155 (upholding waiver where

the defendant, convicted of murder, failed to file objections).

     McBride’s claim that we should excuse his default under the

“interests of justice” exception because he can demonstrate the

existence    of   meritorious     objections     to     the     magistrate’s

recommendation is similarly unpersuasive.            The waiver rule is a

procedural rule designed to allow district courts to “assign work

to magistrate judges while reserving for themselves final authority

over the judgments.”    Wells, 109 F.3d at 200.       If the “interests of

justice” exception could be invoked whenever an appellant can

demonstrate that he or she has meritorious objections to the

findings and recommendation, the very purpose of the waiver rule

would be eviscerated. “[L]itigants would have no incentive to make

objections   at   the   trial   level;   in   fact   they     might   even   be

encouraged to bypass the district court entirely, even though

Congress has lodged the primary responsibility for supervision of

federal magistrates’ functions with that judicial body.”                     Id.

(internal quotation marks omitted).6


     6
      To the extent the Prosecuting Attorney attempts to rely upon
the “fundamental error” or “plain error” doctrine discussed in
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989), that
reliance is misplaced. In Snyder, a case which involved a tort
claim arising from an automobile accident, we rejected the
appellant’s alternative claim that the defendant could appeal under
the “plain error” doctrine applicable to unobjected-to errors in
the district court proceedings even though the defendant failed to
file the requisite objections below. The plain error doctrine does
not apply in appeals from district court adjudications of habeas
petitions brought under 28 U.S.C.A. § 2254(d), and we have never

                                    14
                                 III.

     Because   McBride   did    not     object   to   the   magistrate’s

recommendation, and no “interests of justice” exception to the

general rule is warranted, McBride waived his right to appeal the

merits of the district court’s order adopting the findings and

recommendation of the magistrate judge and granting habeas relief

to Farmer. Accordingly, McBride’s appeal from the district court’s

decision is hereby dismissed.

                                                               DISMISSED




viewed the “plain error” doctrine as an “interests of justice”
exception to the waiver rule.

                                  15
