IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20832
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CLARENCE H. JONES, JR.,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
January 28, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
In 1995, Clarence Jones, a Texas state inmate, filed a
petition for writ of habeas corpus under 28 U.S.C. § 2254. On the
basis of the magistrate judge's report and recommendation, and over
Jones's objection, the district judge denied the petition. Jones
filed a notice of appeal and moved for a certificate of probable
cause (“CPC”) to appeal and for permission to appeal in forma
pauperis (“IFP”). The district judge referred the CPC and IFP
motions to the magistrate judge “for disposition and/or
recommendation.”
The magistrate judge denied the motions in the form of a final
orderSSnot a report and recommendation to the district judgeSS
entitled “Memorandum and Order.” The district judge took no action
thereafter, and the magistrate judge's order stands as the last
action, at the district court level, prior to the filing of the
notice of appeal. The case, nonetheless, was forwarded to this
court, and Jones now requests that we issue a CPC. Concluding,
however, that we are without jurisdiction, we dismiss the appeal
and remand.
II.
Jones's habeas petition was filed before the April 24, 1996,
effective date of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996. Accordingly, this case is governed by the law
in effect prior to the AEDPA's enactment. See Green v. Johnson,
116 F.3d 1115, 1119-20 (5th Cir. 1997); see also Lindh v. Murphy,
117 S. Ct. 2059, 2068 (1997).
Jones must obtain a CPC in order to appeal the denial of his
habeas petition. The version of FED. R. APP. P. 22(b) in effect
when Jones's petition was filed stated,
[A]n appeal by the applicant for the writ may not proceed
unless a district or a circuit judge issues a certificate
of probable cause. If an appeal is taken by the
applicant, the district judge who rendered the judgment
shall either issue a [CPC] or state the reasons why such
a certificate should not issue.
Likewise, former 28 U.S.C. § 2253 provided that “[a]n appeal may
not be taken to the court of appeals from the final order in a
2
habeas corpus proceeding where the detention complained of arises
out of process issued by a State court, unless the justice or judge
who rendered the order or a circuit justice or judge issues a
[CPC].”
Here, as we have stated, the magistrate judge denied the
motion for CPC, and the district judge did not rule on the motion
or adopt the magistrate judge's decision. We thus are presented
with an issue that is res nova in this circuit: whether the
determination of CPC status, made only by the magistrate judge and
not presented to the district judge for review, is sufficient to
confer jurisdiction on this court to consider a further motion for
CPC presented to us.
The authority of a magistrate judge to act on civil matters is
described in the Federal Magistrate's Act (the “Act”), 28 U.S.C.
§ 636. Generally, in a case in which the parties have not
consented to have the case proceed before a magistrate judge, a
magistrate judge may determine pretrial matters, conduct
evidentiary hearings, and file proposed findings and
recommendations. See § 636(b)(1)(A)-(C).1
In Dye v. Cowan, 472 F.2d 1206, 1207 n.1 (6th Cir. 1972), the
court stated that a magistrate's order granting CPC was “clearly
ultra vires and void,” because a magistrate is not an Article III
judge, and the functions delineated in the Federal Magistrate's Act
1
On the other hand, where the parties have consented to proceed before a
magistrate judge, he may “conduct any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case,” provided the district judge has
designated the magistrate judge to exercise such authority. See § 636(c)(1). The
parties gave no such consent in the instant case.
3
did not include the authority to issue CPC's.2 The Dye case was
decided under a prior version of the Act, which gave magistrate
judges (then called “magistrates”) the power of “preliminary review
of applications for post-trial relief made by individuals convicted
of criminal offenses, and submission of a report and
recommendations to facilitate the decision of the district judge
having jurisdiction over the case as to whether there should be a
hearing.” 28 U.S.C. § 636(b)(3) (1970). The statute permitted any
district court, by rule, to assign magistrates “such additional
duties as are not inconsistent with the Constitution and laws of
the United States.” Id. § 636(b). As the Dye court noted,
however, “Judicial decision making, except in relation to minor
offenses, . . . is not within the prerogative of the United States
magistrate nor can it be delegated to him by the United States
District Judge.” 472 F.2d at 1207 n.1 (citations omitted).
The present version of the Act is worded differently. Like
the prior version, the Act provides that “[a] magistrate may be
assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.” 28 U.S.C.
§ 636(b)(3). More specifically, the Act also provides that
a judge may designate a magistrate to hear and
determine any pretrial matter pending before the court,
except [items not relevant here]. A judge of the court
may reconsider any pretrial matter under this
subparagraph (A) where it has been shown that the
magistrate's order is clearly erroneous or contrary to
2
Another circuit appears to consider the question to be an open one. See
Jones v. Peterson, 108 F.3d 338 (9th Cir.) (table), 1997 U.S. App. LEXIS 3153, at
*1 (9th Cir. Feb. 20, 1997), cert. denied, 118 S. Ct. 300 (1997).
4
law.
Id. § 636(b)(1)(A). In regard to habeas matters, “a judge may also
designate a magistrate . . . to submit to a judge of the court
proposed findings and recommendations . . . of applications for
posttrial relief made by individuals convicted of criminal offenses
. . . .” Id. § 636(b)(1)(B).
Most recently, in United States v. Dees, 125 F.3d 261 (5th
Cir. 1997), this court interpreted the current statute in holding
that the taking of a guilty plea is a permissible “additional duty”
under § 636(b)(3). Citing Peretz v. United States, 501 U.S. 923,
930-31 (1991), and Gomez v. United States, 490 U.S. 858, 864
(1989), the court opined that “a magisterial duty is a proper
'additional duty' under the clause if it bears some relationship to
the duties that the Act expressly assigns to magistrate judges.”
125 F.3d at 264-65. Because the taking of a plea bears a close
relationship to evidentiary proceedings to determine the
voluntariness of a pleaSSwhich latter proceedings this court had
found to be authorized to magistrates under § 636(b)(1), see United
States v. Rojas, 898 F.2d 40 (5th Cir. 1990)SSthe court held that
the taking of pleas is a proper “additional duty” under the
statute.
Having disposed of the statutory issue, the court addressed
whether the taking of pleas by magistrate judges offends
Article III of the Constitution. The court stated that
[m]ost notably, Article III judges cannot delegate to
magistrate judges final authority over some important
issue in a case, as only Article III judges, not their
adjuncts, have the power to dispose of cases or
5
controversies. For this reason, the Supreme Court has
stressed that the reviewability of a magistrate judge's
actions is a critical factor in considering the propriety
of an Article III judge's delegation of authority to a
magistrate judge.
125 F.2d at 268. The court added,
[S]o long as the district court has the power to review
the magistrate judge's actions, there is no “'threat to
the judicial power or the independence of judicial
decisionmaking that underlies Article III.'” Peretz, 501
U.S. at 938 . . . (quoting United States v. Raddatz, 447
U.S. 667, 685-86 . . . (1980) (Blackmun, J.,
concurring)). Only when a magistrate judge possesses
final decisionmaking authority over a substantial issue
in a case does an Article III problem arise. See
Raddatz, 447 U.S. at 683 . . . .
Id.
Applying these maxims, the court noted that “[t]he taking of
a plea by a magistrate judge does not bind the district court to
accept that plea. Rather, the district court retains ultimate
control over the plea proceedings, which are submitted to the court
for its approval.” Id. (citation omitted). To the same effect,
the court added that in Peretz, the Court later held that because
a district court retains the ultimate decision over whether to
empanel a jury selected under a magistrate's watch, voir dire is
sufficiently reviewable to allow it to be assigned to magistrate
judges without damage to Article III's structural guarantees.” Id.
(citing Peretz, 501 U.S. at 937).
III.
Thus, under the law of this circuit, the pivotal question is
whether a given duty assigned to a magistrate judge is subject to
6
meaningful review by the district judge.3 At least under the facts
and circumstances of the instant case, we conclude that there was
insufficient provision for review, so the magistrate judge's
purported grant of CPC is inadequate to confer jurisdiction on this
court.
A.
The district judge effectively ceded authority to act when he
referred the motion for CPC to the magistrate judge “for
disposition and/or recommendation.” Once the magistrate judge
elected to take final action, rather than submit a report and
recommendation, the cession became final, with the magistrate judge
ruling, in a document entitled “Memorandum and Order,” that the
“request for a certificate of probable cause is DENIED.” As the
Dees court held, “Article III judges cannot delegate to magistrate
judges final authority over some important issue in a case.”
125 F.3d at 268. “Only when a magistrate judge possesses final
decisionmaking authority over a substantial issue in a case does an
Article III problem arise.” Id. But that, in fact, is what
occurred here. The central requirement of DeesSSthat “the district
court retains ultimate control over the [] proceedings, which are
submitted to the court for its approval,”4SSplainly was not met.
3
We assume that, under Dees, 125 F.3d at 264-65, the magistrate's
consideration of the request for CPC is a permissible “additional duty” under
§ 636(b)(3), as it “bears some relationahip” to a magistrate judge's customary
role of submitting reports and recommendations on whether to grant habeas relief.
4
Dees, 125 F.3d at 268 (emphasis added).
7
B.
Even if we were not confronted by the limitations of
Article III, as analyzed in Dees, the language of the former § 2253
would be dispositive. As we have noted, that section provided that
“[a]n appeal may not be taken . . . in a habeas corpus proceeding
. . . unless the justice or judge who rendered the order or a
circuit justice or judge issues a [CPC].”
Here, the district judge issued the order denying habeas
relief. The statute requires any subsequent CPC to be issued by
that district judge or by “a circuit justice or judge.” If there
were any doubt that the words “or judge” refers to a district
judge, not a magistrate judge, we would look to FED. R. APP. P.
22(b), which requires a CPC to be issued by “a district or a
circuit judge.” The reference is not to the “district court,” but
only to the specified judicial officer, i.e., the district judge.”
We assume the rule means what it says and that, accordingly, a CPC
at the district court level must be issued by a United States
district judge.5
IV.
In summary, we apply the principles enunciated by this court
in Dees and, agreeing with the position taken by the Sixth Circuit
5
See also Holiday v. Johnston, 313 U.S. 342, 350-54 (1941) (holding that,
where Habeas Corpus Act of 1867 required hearing to be before the “court,
justice, or judge,” court's referral of matter to a commissioner was not
permitted); Cruz v. Hauck, 515 F.2d 322, 328 n.10 (5th Cir. 1975) (distinguishing
between statutory reference to “trial court” and “trial judge” and placing
significance on the fact that the subject statute contained no specific language
directing the district judge to hold an evidentiary hearing, so the matter could
be referred to a magistrate).
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in Dye, we conclude that a CPC issued by a magistrate judge is
ineffective to confer jurisdiction on this court where the district
judge has conclusively ceded to the magistrate judge the role of
deciding whether a CPC shall issue.
Because we are without jurisdiction, the appeal is DISMISSED,
and this matter is REMANDED to the district court for further
proceedings, as appropriate.
9