                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

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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




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