Robert Herring v. Harold Clarke

Vacated and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit.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 *295 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. Footnotes [*] Notably, the district court clerk's office docketed Herring’s second denial of consent as "CONSENT to Jurisdiction by U.S. 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.”