Robert Herring v. Harold Clarke , 641 F. App'x 294 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7779
ROBERT MICHAEL HERRING,
Petitioner – Appellant,
v.
HAROLD CLARKE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Roderick C. Young,
Magistrate Judge. (3:13-cv-00326-RCY)
Submitted: March 10, 2016 Decided: March 22, 2016
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Robert Michael Herring, Appellant Pro Se. Eugene Paul Murphy,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.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 (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
* Notably, the district court clerk’s office docketed
Herring’s second denial of consent as “CONSENT to Jurisdiction
by US Magistrate Judge by Robert Michael Herring.” No.
3:13-cv-00326-RCY (E.D. Va. Docket Entry 50). Nevertheless, the
document at that entry – a standard consent form – was signed by
Herring in the section stating “The undersigned party hereby
declines to consent to jurisdiction in this civil action.”
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magistrate judge if the requirements of § 636(b)(1)(B) or (c)
are met; otherwise such 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
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