United States v. Byrd

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 97-7570

HENRY CLIFFORD BYRD, SR., Defendant-Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Paul Trevor Sharp, Magistrate Judge. (CR-83-52, CA-97-1047-1)

Submitted: February 26, 1998

Decided: March 24, 1998

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

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Remanded by unpublished per curiam opinion.

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COUNSEL

Henry Clifford Byrd, Sr., Appellant Pro Se. Benjamin H. White, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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PER CURIAM:

Appellant appeals from an order of the magistrate judge dismissing without prejudice his motion filed under 28 U.S.C.A.§ 2255 (West 1994 & Supp. 1997). We remand for further proceedings.

Absent consent of the parties to the magistrate judge's jurisdiction to enter final judgment under 28 U.S.C. § 636(c) (1994), this court has no jurisdiction to review a magistrate judge's order. See Silberstein v. Silberstein, 859 F.2d 40, 41-42 (7th Cir. 1988); Parks ex rel. Parks v. Collins, 761 F.2d 1101 (5th Cir. 1982). The record before the court does not reflect consent of the parties to the magis- trate judge's exercise of jurisdiction or referral of the action to the magistrate judge under 28 U.S.C. § 636(c).

We accordingly grant a certificate of appealability and remand the case for determination by the district court. We dispense with oral argument because the fact and legal contentions are adequately pres- ented in the materials before the court and argument would not aid the decisional process.

REMANDED