Sanders v. Cockrell

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 14, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41628
HENRY LEE SANDERS,
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-135
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Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Henry Lee Sanders, Texas inmate no. 666939, seeks a
certificate of appealability (COA) following the dismissal of his
28 U.S.C. § 2254 application for a writ of habeas corpus. He is
challenging a prison disciplinary conviction for failing to obey an
order and being in an unauthorized place.

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No. 02-41628
-2-
The district judge is married to the magistrate judge,
and he therefore should have recused himself under 28 U.S.C.
§ 455(a) so that another judge could review the magistrate judge’s
report and recommendation. See Jones v. Patrick, No. 02-40846 (5th
Cir. Nov. 14, 2002) (unpublished) (same magistrate judge and same
district judge as in present case).
A COA must be issued before this appeal may proceed.
FED. R. APP. P. 22(b)(1). Accordingly, we GRANT a COA on the
recusal issue, VACATE the judgment, and REMAND the case with
directions that the magistrate judge’s report and recommendation be
considered by another district judge. See Jones at 2-3.
COA GRANTED; JUDGMENT VACATED; CASE REMANDED.

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