UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11435
ROLAND BLOYCE CARROLL,
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 Northern District of Texas
(96-CV-798)
February 18, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit Judges.
PER CURIAM:*
Roland Bloyce Carroll, proceeding pro se, appeals the denial of his 28 U.S.C.
§ 2254 petition for habeas corpus. Carroll seeks a remand in order that another
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
federal district judge might consider his habeas petition after he has an opportunity
to file objections to the magistrate judge’s recommendation. Carroll asserts, and
the record reflects, that the district judge a` quo was the state trial judge who, after
a bench trial, found Carroll guilty of the offense of aggravated sexual assault, the
offense underlying the instant habeas action.
A magistrate judge reviewed Carroll’s petition and recommended that relief
be denied. Carroll had until October 29, 1996 to file objections to the magistrate
judge’s recommendation. On October 21, 1996, however, the district court adopted
the magistrate judge’s Findings and Recommendation and entered judgment
denying Carroll’s petition. Carroll timely appealed and we granted a certificate of
appealability.1
The question presented is not whether the district judge herein is impartial
in fact, but whether another might reasonably question his impartiality. 2 We
entertain no doubt whatever that the trial judge inadvertently failed to recognize
this case or to recall his earlier participation as the state trial judge. The federal
habeas petition requires a review of the state court proceedings to determine if
1
In light of Lindh v. Murphy, 117 S.Ct. 2059 (1997), we construe the certificate of
appealability as a certificate of probable cause.
2
28 U.S.C. § 455.
2
Carroll’s conviction was obtained in violation of some constitutional right. Even
though resolution of the habeas case is based on a magistrate judge’s
recommendations, the federal judge must review the entire record and make the
ultimate determination whether to grant or deny relief. In this situation, it cannot
seriously be contended that there is no basis for a reasonable person to question the
district judge’s impartiality and ability to provide the requisite independent federal
review of the state court proceedings.
Accordingly, we must conclude that our trial judge is disqualified to act
herein under 28 U.S.C. § 455(a). We therefore vacate and remand for submission
to another federal district judge to consider the magistrate judge’s Findings and
Recommendation after Carroll is given a reasonable opportunity to file objections
thereto.
VACATED and REMANDED.
3