Gibson v. Davis

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40975

TRACY RAY GIBSON,

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:17-CV-188

Before HIGGINBOTHAM, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM*:
This court must examine the basis of its jurisdiction, on its own motion
if necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000). In
this habeas corpus case filed by a state prisoner, the petitioner filed a notice of
appeal from the magistrate judge=s report and recommendation to deny the
petition.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 15, 2020

Lyle W. Cayce
Clerk
Case: 19-40975 Document: 00515272482 Page: 1 Date Filed: 01/15/2020

No. 19-40975
2
“Federal appellate courts have jurisdiction over appeals only from (1) a
final decision under 28 U.S.C. § 1291; (2) a decision that is deemed final due to
jurisprudential exception or that has been properly certified as final pursuant
to Fed. R. Civ. P. 54(b); and (3) interlocutory orders that fall into specific
classes, 28 U.S.C. § 1292(a), or that have been properly certified for appeal by
the district court, 28 U.S.C. § 1292(b).” Askanase v. Livingwell, Inc., 981 F.2d
807, 809-10 (5th Cir. 1993). The report and recommendation of a magistrate
judge is not a final order and it does not fall into any of the other categories
that would make it appealable. See United States v. Cooper, 135 F.3d 960, 961
(5th Cir. 1998). Moreover, although the district court subsequently adopted
the report and recommendation, the present notice of appeal is not effective for
purposes of appealing that judgment. Id. at 962 (A[T]he recommendation of a
magistrate judge is not a final decision and does not in any way dispose of a
party’s claims.@). Accordingly, the appeal is DISMISSED for want of
jurisdiction.
Case: 19-40975 Document: 00515272482 Page: 2 Date Filed: 01/15/2020