Case: 21-40613 Document: 00516341265 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 2, 2022
No. 21-40613 Lyle W. Cayce
Clerk
Humberto Rosales Cruz,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Application for Certificate of Appealability from the
United States District Court for the Southern District of Texas
USDC No. 7:20-CV-305
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
Humberto Rosales Cruz, Texas prisoner # 01970936, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2254 petition challenging his conviction of attempted murder.
The district court denied Cruz’s petition after concluding it was time barred
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40613 Document: 00516341265 Page: 2 Date Filed: 06/02/2022
No. 21-40613
under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Cruz also moves for an evidentiary hearing.
This court must examine the basis of its own jurisdiction, sua sponte,
if necessary. Trent v. Wade, 776 F.3d 368, 387 (5th Cir. 2015). Unless
otherwise authorized, a magistrate judge’s report and recommendation does
not constitute a final decision by the district court and is therefore not
appealable under 28 U.S.C. § 1291. Trufant v. Autocon, Inc., 729 F.2d 308,
309 (5th Cir. 1984). Here, Cruz filed his notice of appeal after the magistrate
judge issued her report and recommendation but before the district court
disposed of his § 2254 petition. Because the magistrate judge’s order was
not a final appealable decision, we lack jurisdiction to review it. See § 1291;
Trufant, 729 F.2d at 309. Moreover, Cruz’s premature notice of appeal was
insufficient to confer jurisdiction on this court from the district court’s order
dismissing his petition as time barred. See FirsTier Mortg. Co. v. Investors
Mortg. Ins. Co., 498 U.S. 269, 276-77 (1991); see also United States v. Cooper,
135 F.3d 960, 963 (5th Cir. 1998).
Accordingly, this matter is DISMISSED for want of jurisdiction. All
motions are DENIED as moot.
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