     Case: 19-40975      Document: 00515272482         Page: 1    Date Filed: 01/15/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 19-40975                        January 15, 2020
                                                                           Lyle W. Cayce
TRACY RAY GIBSON,                                                               Clerk


              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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-40975    Document: 00515272482     Page: 2   Date Filed: 01/15/2020



                                 No. 19-40975
      “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.




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