641 F. App'x 294

Robert Michael HERRING, Petitioner-Appellant, v. Harold CLARKE, Respondent-Appellee.

No. 15-7779.

United States Court of Appeals, Fourth Circuit.

Submitted: March 10, 2016.

Decided: March 22, 2016.

Robert Michael Herring, Appellant Pro Se. Eugene Paul Murphy, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

Vacated and remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Robert Michael Herring appeals the magistrate judge’s order dismissing his 28 U.S.C. § 2254 (2012) petition. An action may be referred to a magistrate judge to hear and determine most nondispositive pretrial matters and for hearings or the preparation of findings and a recommended disposition. 28 U.S.C. § 636(b) (2012). But a magistrate judge may only enter a final disposition with the written consent of all the parties to the action. 28 U.S.C. § 636(c); see United States v. Bryson, 981 F.2d 720, 723 (4th Cir.1992).

Herring twice affirmatively declined to consent to full jurisdiction by the magistrate judge.* Thus, the magistrate judge lacked jurisdiction to enter the final order of dismissal. See Bryson, 981 F.2d at 726; see also Gomez v. United States, 490 U.S. 858, 870, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (“A critical limitation on [the magistrate judge’s] expanded jurisdiction is consent.”).

Accordingly, we vacate the magistrate judge’s order dismissing Herring’s petition and remand for further proceedings. Further proceedings may be conducted by the magistrate judge if the requirements of § 636(b)(1)(B) or (c) are met; otherwise *295such proceedings must be conducted by a district judge. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED.

Herring v. Clarke
641 F. App'x 294

Case Details

Name
Herring v. Clarke
Decision Date
Mar 22, 2016
Citations

641 F. App'x 294

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!