Filed: January 10, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6905
(CR-97-135, CA-99-493-1)
United States of America,
Plaintiff - Appellee,
versus
Densel Recardo Edwards,
Defendant - Appellant.
O R D E R
The court amends its opinion filed November 12, 1999, as
follows:
On the cover sheet, section 6 -- the disposition is corrected
to read “Dismissed and remanded by unpublished per curiam opinion.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-6905
DENSEL RECARDO EDWARDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Russell A. Eliason, Magistrate Judge.
(CR-97-135, CA-99-493-1)
Submitted: October 29, 1999
Decided: November 12, 1999
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Dismissed and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Densel Recardo Edwards, Appellant Pro Se. Michael Francis Joseph,
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Unpublished opinions are not binding precedent in this circuit.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:
Densel Edwards, a federal prisoner, appeals an order of the magis-
trate judge dismissing without prejudice his motion to vacate, set
aside, or correct his sentence filed under 28 U.S.C.A. § 2255 (West
Supp. 1999). The record in this case does not indicate that the district
court referred this matter to the magistrate judge for consideration, or
that the parties consented to the magistrate judge's jurisdiction. In the
absence of a referral, the magistrate judge lacked authority to review
this matter. See 28 U.S.C.A. § 636 (West 1994 & Supp. 1999); Parks
By & Through Parks v. Collins, 761 F.2d 1101, 1104 (5th Cir. 1985).
Moreover, the magistrate judge's unauthorized order is nonappeal-
able. Id. at 1107 n.9.
Because the parties did not provide consent to the magistrate
judge's jurisdiction, and the action involves an application for post-
trial relief from a criminal conviction, it would appear that the magis-
trate judge purported to act under authority of § 636(b)(1)(B). Even
had the magistrate judge received the requisite referral from a district
court judge, however, its authority to act in a subsection (B) referral
case would be limited to issuing recommendations rather than orders
effectively disposing of the action, as in this case. See Continental
Cas. Co. v. Dominick D' Andrea, Inc., 150 F.3d 245, 250 (3d Cir.
1998). Because the order appealed from was unauthorized and nonap-
pealable, we deny a certificate of appealability, dismiss this appeal,
and remand to the district court for further proceedings. See Massey
v. City of Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993) (dismissing
appeal from unauthorized order issued by magistrate judge but
remanding to district court for corrective action). 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.
DISMISSED AND REMANDED
2