                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           July 14, 2003

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                            No. 02-41628



HENRY LEE SANDERS,

                                     Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

                                     Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:02-CV-135
                       --------------------

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.




     *
      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this opinion should not be published and is not precedent except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.
                            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Cir. Nov. 14, 2002) (unpublished) (same magistrate judge and same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.
