Robert Herring v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00326-RCY Copies to all parties and the district court/agency. [999779263]. Mailed to: Robert Michael Herring. [15-7779]

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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

preparation

findings

and

of

U.S.C. § 636(b) (2012).

a

and

for

hearings

the

disposition.

recommended

or

28

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

jurisdiction by

affirmatively

declined
judge. *

the magistrate

to

consent

Thus,

to

full

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,
dismissing
proceedings.

we

vacate

the

magistrate

Herring’s

petition

and

Further

proceedings

may

*

remand
be

judge’s
for

conducted

order
further
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.”

2

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magistrate judge if the requirements of § 636(b)(1)(B) or (c)
are

met;

district
facts

otherwise
judge.

and

materials

legal
before

such

We

proceedings

dispense

contentions
the

court

with

must

oral

be

conducted

argument

are

adequately

and

argument

because

presented

would

by

not

a

the

in

the

aid

the

decisional process.
VACATED AND REMANDED

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