United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41368
Summary Calendar
ALEXANDER DECLINTON MADDOX,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-214
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Alexander Declinton Maddox, Texas prisoner # 1066429, seeks
leave to file a certificate of appealability (COA) to appeal
the district court’s dismissal of his 28 U.S.C. § 2254 petition
challenging a prison disciplinary proceeding. To obtain a COA,
Maddox must make “a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. § 2253(c)(2). A
substantial showing requires Maddox to show that “reasonable
1
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that this opinion should not be published and is not precedent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. 02-41368
-2-
jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” See Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
Magistrate Judge Guthrie, prior to service of process,
recommended dismissal without prejudice for failure to state a
cognizable constitutional claim. The district court, Chief Judge
Hannah, conducted a de novo review, adopted the findings and
conclusions of the magistrate judge, and dismissed the case.
Without addressing the merits of the dismissal or Maddox’s
failure to brief the merits, we sua sponte vacate the district
court’s judgment and remand with directions to refer the
matter to another district judge. The district court here
should have recused himself under 28 U.S.C. § 455(a) because
with knowledge of the relevant fact——that the district judge
is the spouse of the magistrate judge——“an objective observer
would have questioned [the district judge’s] impartiality” in
reviewing the recommendation of the magistrate judge, and this is
so even if the district judge’s “failure to disqualify himself
was the product of a temporary lapse of” attention on his part
(as we assume it was). See Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 861 (1988). We note that there
is nothing in the record suggesting that Maddox, a prisoner
proceeding pro se, ever knew or reasonably could have known of
the fact requiring recusal. Because of this and because recusal
was so clearly required and this case is on direct appeal from a
No. 02-41368
-3-
dismissal prior to service of process, we exercise our discretion
in this particular case to vacate the judgment in the interest
of promoting “confidence in the judiciary by avoiding even the
appearance of impropriety,” see Liljeberg, 486 U.S. at 867,
and in the hope that such action will emphasize the need to
guard against inadvertent repetition of this situation. See
also Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027 n.1
(5th Cir. 1998).
VACATED AND REMANDED.
Maddox v. Cockrell
Combined Opinion