IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20283
Conference Calendar
ROGELIO DELABRA,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1614
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October 19, 1999
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Rogelio Delabra, Texas prisoner # 641276, seeks a
certificate of appealability (COA) to appeal the denial of his
application for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254. He has also filed a motion to proceed in forma
pauperis (IFP) on appeal.
We must examine the basis of our jurisdiction, sua sponte,
if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.
*
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that this opinion should not be published and is not precedent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.
No. 99-20283
-2-
1987). Delabra filed a notice of appeal after the magistrate
judge issued her memorandum and opinion and order of dismissal,
but before the district court had the opportunity to issue an
order adopting the magistrate judge’s recommended action and a
final judgment. The magistrate judge’s memorandum was never
presented to the district court for adoption or rejection. The
district court referred the matter to the magistrate judge for a
recommendation only. The magistrate judge did not have the
authority to dismiss this matter or to deny a COA. Jones v.
Johnson, 134 F.3d 309, 309-12 (5th Cir. 1998); 28 U.S.C.
§ 636(b)(1)(A-C). The magistrate judge’s order of dismissal is
not an appealable judgment. Trufant v. Autocon, Inc., 729 F.2d
308, 309 (5th Cir. 1984).
We are without jurisdiction to consider this case.
Accordingly, the motions for COA and IFP are DENIED, and the
appeal is dismissed for lack of jurisdiction.
MOTIONS DENIED; APPEAL DISMISSED FOR LACK OF JURISDICTION.