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UNPUBLISHED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.

_________________________________________________________________

Remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

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

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

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 magistrate 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 presented in the materials before the court and argument would not aid the decisional process.

REMANDED