OpenJurist

849 F2d 609 Gardner v. Bach

849 F.2d 609

Damon Myron GARDNER, Petitioner-Appellant,
v.
Joann BACH, Respondent-Appellee.

No. 87-2006.

United States Court of Appeals, Sixth Circuit.

June 10, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before CORNELIA G. KENNEDY and NATHANIEL R. JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

A review of the file indicates that the magistrate entered a report and recommendation on September 29, 1987, and appellant was advised that any objections were required to be filed within ten days. On October 9, 1987, appellant filed a motion for leave to proceed on appeal in forma pauperis. An information copy of the motion was sent to this court and docketed as appeal number 87-2006. By letter dated October 19, 1987, the district court advised that appellant's motion had been construed as objections to the magistrate's report and recommendation. It further advised that the appeals period did not begin to run unless the judge adopted the report and recommendation and denied the petition for writ of habeas corpus. The district court, by order entered March 18, 1988, adopted the report and recommendation and denied the habeas corpus petition. A certificate of probable cause was granted on April 20, 1988, after appellant filed in the district court a notice of appeal and an application for certificate of probable cause with respect to the court's denial of the habeas corpus petition. No such notice of appeal or application for certificate of probable cause is recorded on the district court docket sheet or included in the record on appeal.

3

An order of a magistrate is not appealable unless the magistrate is given plenary jurisdiction by the district court and by consent of the parties pursuant to 28 U.S.C. Sec. 636(c)(1). Ambrose v. Welch, 729 F.2d 1084 (6th Cir.1984) (per curiam); Trufant v. Autocon, Inc., 729 F.2d 308 (5th Cir.1984). The magistrate was not given plenary jurisdiction in this case.

4

It is ORDERED that appeal number 87-2006 from the magistrate's report and recommendation be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.

5

Pursuant to Fed.R.App.P. 10(e), the district court is directed to correct its records to reflect the notice of appeal and application for certificate of probable cause mentioned in its April 20, 1988, order. Upon filing the notice of appeal from the habeas corpus denial, the clerk shall forward the notice of appeal to this court as provided by Fed.R.App.P. 3(d) for docketing of the appeal by this court.