                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS            April 23, 2003
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                           No. 02-41368
                         Summary Calendar


ALEXANDER DECLINTON MADDOX,

                                    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-214
                       --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     Alexander Declinton Maddox, Texas prisoner # 1066429, seeks

leave to file a certificate of appealability (COA) to appeal

the district court’s dismissal of his 28 U.S.C. § 2254 petition

challenging a prison disciplinary proceeding.   To obtain a COA,

Maddox must make “a substantial showing of the denial of a

constitutional right.”   See 28 U.S.C. § 2253(c)(2).    A

substantial showing requires Maddox to show that “reasonable

     1
        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that this opinion should not be published and is not precedent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. 02-41368
                               -2-

jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”     See Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

     Magistrate Judge Guthrie, prior to service of process,

recommended dismissal without prejudice for failure to state a

cognizable constitutional claim.    The district court, Chief Judge

Hannah, conducted a de novo review, adopted the findings and

conclusions of the magistrate judge, and dismissed the case.

     Without addressing the merits of the dismissal or Maddox’s

failure to brief the merits, we sua sponte vacate the district

court’s judgment and remand with directions to refer the

matter to another district judge.   The district court here

should have recused himself under 28 U.S.C. § 455(a) because

with knowledge of the relevant fact——that the district judge

is the spouse of the magistrate judge——“an objective observer

would have questioned [the district judge’s] impartiality” in

reviewing the recommendation of the magistrate judge, and this is

so even if the district judge’s “failure to disqualify himself

was the product of a temporary lapse of” attention on his part

(as we assume it was).   See Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 861 (1988).     We note that there

is nothing in the record suggesting that Maddox, a prisoner

proceeding pro se, ever knew or reasonably could have known of

the fact requiring recusal.   Because of this and because recusal

was so clearly required and this case is on direct appeal from a
                             No. 02-41368
                                  -3-

dismissal prior to service of process, we exercise our discretion

in this particular case to vacate the judgment in the interest

of promoting “confidence in the judiciary by avoiding even the

appearance of impropriety,” see Liljeberg, 486 U.S. at 867,

and in the hope that such action will emphasize the need to

guard against inadvertent repetition of this situation.    See

also Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027 n.1

(5th Cir. 1998).

     VACATED AND REMANDED.
