IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20832

_______________

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 dispos ition and/or2

recommendation.”

The magistrate judge denied the motions in the form of a final

order SS not a report and rec ommendation to the district judge S S

entitled “Memorandum and Order.” The district judge took no action

thereafter, and the magis trate 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 with out 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 th e AEDPA's enactment. S ee 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 F E D

. R. A PP

. 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 c ourt of appeals from the final order in a1 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. S ee § 636(c)(1). The

parties gave no such consent in the instant case.

3 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 just ice 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 r es 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.

§ 6 36. 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 sta ted 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 Act2 Another circuit appears to consider the question to be an open one. S ee

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 did not include the authority to issue CPC's. 2 The D ye c ase 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 rep ort 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.” I d. § 636(b). As the D ye court noted,

however, “Judicial decision maki ng, 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 duti es 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 th at the

magistrat e's order is clearly erroneous or contrary to5

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 appl ications 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 th at the Act expressly assigns to magistrate judges.”

125 F.3d at 264-6 5. Because the taking of a plea bears a close

relationship to evidentiary proceedings to determine the

voluntariness of a plea SS which latter proceedings this co urt had

found to be authorized to magistrates under § 636(b)(1), see United

States v. Rojas

, 898 F.2d 40 (5th Cir. 1990) SS the 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 ma gistrate judges offends

Article III of the Constitution. The court stated that

[m]ost notab ly, 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 or6

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 I II 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 indepen dence of judicial

decisionmaking that underlies Article III.'” P eretz

, 501

U.S. at 938

. . . (quoting United States v. Raddatz

, 447

U.S. 667, 685-86

. . . (1 980) (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. S ee

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.” I d. (citation o mitted). 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.” I d.

(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 to3 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 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.” I d. But that, in fact, is what

occurred here. The central requirement of D ees SS that “the district

court retains ultimate control over the [] proceedings, which are

submitted to the court for its approval ,” 4 SS plainly was not met.5 See also Holiday v. Johnston

, 313 U.S. 342, 350-54 (1941) (holding that,

where Habeas C orpus Act of 1867 required hearing to be before the “court,

justice, or judge,” cour t'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).

8 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 w ho 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, w e would look to F E D

. R. A PP

. P.

22(b), which requires a CPC to be issued by “a district or a

circuit judge.” The reference is not to the “district c ourt ,” 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 i ssued 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 Circuit9

in Dye

, we co nclude 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.