REVISED JULY 30, 2001

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 99-20810



                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                                VERSUS


         EDWARD JOHN JOHNSTON, III, also known as Easy,
  also known as EZ, also known as Charles Edward Johnson, III,

                                                 Defendant-Appellant.




           Appeal from the United States District Court
                For the Southern District of Texas
                             July 13, 2001


Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH,* District
Judge.

DeMOSS, Circuit Judge:

      Edward John Johnston, III, a federal prisoner, moves for a

certificate of appealability (“COA”), claiming that the government

violated his constitutional rights and 18 U.S.C. § 201(c) when it



  *
   District Judge of the Northern District of Texas, sitting by
designation.
utilized witnesses who were either paid informants or were provided

immunity from prosecution.     After both the government and Johnston

consented to proceed before a magistrate judge, the magistrate

judge dismissed on the merits Johnston’s motion to vacate, set

aside or correct sentence filed pursuant to 28 U.S.C. § 2255 and

also denied his motion for a COA.           Because we conclude that the

consensual delegation of § 2255 motions to magistrate judges

violates Article III of the Constitution, we vacate the judgment

and remand the case to the district court.



                             I. BACKGROUND

      Johnston was convicted of conspiracy to possess with intent to

distribute cocaine, cocaine base, and marijuana.         He was sentenced

to 135 months of imprisonment, five years of supervised release, a

$6,000 fine, and a $50 special assessment.           On direct appeal, we

affirmed Johnston’s conviction and sentence.            The Supreme Court

denied his petition for a writ of certiorari.              See Johnson v.

United States, 

(1998).

      Johnston timely filed a motion under § 2255, alleging that: 1)

the district court erred in finding that Kimela Lomax’s testimony

was   a   sufficiently   reliable   basis    for   calculating   Johnston’s

sentence; 2) the government violated 18 U.S.C. § 201(c) by paying

Lomax between $6,500 and $7,000 for her testimony and by agreeing

not to prosecute Roy Patterson in exchange for his testimony; and


                                     2
3) the prosecutor engaged in misconduct during the trial. Johnston

and the government both consented to proceed before a magistrate

judge pursuant to 28 U.S.C. § 636(c).          The magistrate judge issued

a memorandum and order denying Johnston’s § 2255 motion.           Johnston

timely filed a notice of appeal, and he also filed a motion for

leave   to   proceed   in   forma   pauperis   (“IFP”)   on   appeal.   The

magistrate judge construed the notice of appeal as a motion for a

COA and denied it, but granted Johnston’s IFP motion.           Thereafter,

Johnston filed the instant COA motion.



                              II. DISCUSSION

      Before considering the substance of Johnston’s motion for a

COA, we must first address whether the motion is properly before

us.   Although neither party has challenged the magistrate judge’s

prerogative to finally adjudicate Johnston’s § 2255 motion, we have

a “special obligation to 'satisfy [ourselves] not only of [our] own

jurisdiction, but also that of the lower courts in a cause under

review,' even though the parties are prepared to concede it."

United Transp. Union v. Foster, 

, 857 (5th Cir. 2000)

(quoting Steel Co. v. Citizens for a Better Env't, 

,

1013 (1998)).1    Johnston and the government consented to proceed

before a magistrate judge with respect to his § 2255 motion.



  1
   See also Trevino v. Johnson, 

(5th Cir.), cert.
denied, 

(1999).

                                      3
Whether their consent to proceed before the magistrate judge was

sufficient to confer jurisdiction depends on a two-step analysis.

United States v. Dees, 

, 264 (5th Cir. 1997).           “First,

we must ask whether Congress, in passing legislation governing

magistrate   judges,   intended   for   them   to   perform   the   duty   in

question.”    

that first step, we should avoid

interpreting any legislation governing magistrate judges in such a

fashion as to engender constitutional issues if a reasonable

alternative posing no such issues is evident.         See Gomez v. United

States, 

, 2241 (1989); Commodity Futures Trading

Comm’n v. Schor, 

, 3251 (1986).            But if such an

alternative is not possible, then we must next consider “whether

the delegation of the duty to a magistrate judge offends the

principles of Article III of the Constitution.”         

.    We review each step in turn.

A.     Section 2255 is a Civil Matter for Purposes of § 636(c)

       Section 636 of Title 28 recites the jurisdiction and statutory

authority of a magistrate judge.        Subsection (c)(1) provides that

upon the consent of the parties, a magistrate judge may conduct any

or all proceedings in a jury or nonjury civil matter and order the

entry of judgment in the case when specially designated to exercise

such jurisdiction by the district court or the courts she serves.

28 U.S.C. § 636(c)(1).      Here, the parties consented to proceed

before the magistrate judge and the district court had specially


                                    4
designated that a magistrate judge could oversee the present kind

of litigation.          See General Order No. 80-5, at 2-3 (S.D. Tex.

1980).     The       question    remains       whether   a   §   2255   proceeding

constitutes a civil matter for the purposes of § 636(c).

     Very few courts have directly addressed this precise issue.

In United States v. Bryson, 

, 723 (4th Cir. 1992), the

Fourth Circuit indirectly found that a § 2255 proceeding is a civil

matter for purposes of § 636(c) when it concluded in dicta that a

magistrate      judge    could   adjudicate      a   §   2255    proceeding   under

§ 636(c). In reaching the latter conclusion and, consequently, the

determination that a § 2255 proceeding is a civil matter for

purposes   of    §    636(c),    the   Fourth     Circuit    referenced   various

decisions from other circuits, including ours, which implicitly

held that magistrate judges could adjudicate habeas petitions under

§§ 2241 and 2254 via § 636(c).          See 

see also Orsini v.

Wallace, 

, 477 (8th Cir. 1990) (“[T]he plain language

of section 636(c) . . . indicates that magistrates, upon consent of

the parties and reference by the district court, have jurisdiction

to order entry of judgment in a habeas case.”); Bullock v. Lucas,

, 245 (5th Cir. 1984) (reviewing appeal from magistrate

judge’s disposition of habeas proceeding conducted under § 636(c)),

modified and remanded sub nom., Cabana v. Bullock, 

(1986); Moore v. Tate, 

, 1109 (6th Cir. 1989) (same);

Turner v. Henman, 

, 613 (7th Cir. 1987) (same);


                                           5
Sinclair v. Wainwright, 

, 1518-19 (11th Cir. 1987)

(same).   Habeas petitions have customarily been viewed as civil in

nature.      Hilton v. Braunskill, 

, 2118 (1987);

Schlanger v. Seamans, 

, 998 n.4 (1971).        In referring

to   those   other   circuits’   decisions   about   magistrate   judges’

oversight of habeas petitions, the Fourth Circuit essentially

adverted to the similarity between § 2255 and habeas petitions and

implied that such a similarity signified that a § 2255 motion is a

civil matter that can properly be delegated to a magistrate judge

under § 636(c).

      In United States v. Hayman, 

(1952), the Supreme

Court discussed the history of the writ of habeas corpus in America

and the evolution of § 2255.      

    The Court explained

that the distinction between § 2255 and habeas corpus proceedings

arose in 1948 when the Judicial Conference persuaded Congress that

many of the problems surrounding the administration of federal

prisoners’ habeas proceedings, such as the availability of a

prisoner’s records, could be prevented if such proceedings were

brought in the sentencing court rather than in the court of the

district in which the prisoner was confined.             

Kaufman v. United States, 

, 1071 & n.5 (1969).

Section 2255 was to “minimize the difficulties encountered in

habeas corpus hearings by affording the same rights in another and

more convenient forum.”     

.


                                    6
     Although we have not addressed the specific issue before us,

we have generally construed a § 2255 proceeding as being civil in

nature.      See United States v. Young, 

, 165 (5th Cir.

1992) (observing that a § 2255 proceeding is governed by the sixty-

day limit of Federal Rule of Appellate Procedure 4(a) because such

a proceeding is civil); United States v. Buitrago, 

,

349 (5th Cir. 1991) (“Claims brought under § 2255 are civil actions

governed     by   the    sixty-day    appeal     period   of   Fed.   R.   App.    P.

4(a)(1).”); cf. United States v. Cooper, 

, 1194 (5th

Cir. 1989) (noting that to the extent a coram nobis motion is like

a § 2255 motion, the former is civil in nature), abrogated on other

grounds by Smith v. Barry, 

(1992).                     On the other

hand,   we    have      at   times   suggested    that    §    2255   motions     are

conceptually      distinguishable      from    habeas     proceedings,     such    as

§ 2254 petitions, for certain discrete purposes. See United States

v. Brierton, No. 98-10382 (5th Cir. Jan. 12, 1999) (unpublished)

(concluding that § 2255 motions are distinct from habeas petitions,

precluding application of the Suspension Clause); see also Turner

v. Johnson, 

, 392 & n.1 (5th Cir.) (finding in dicta

Brierton to be persuasive), cert. denied, 

(1999).

Indeed, § 2255 as enacted recognized some distinction from habeas

corpus. See       28 U.S.C. § 2255 (authorizing an application for writ

of habeas corpus if a § 2255 motion is “inadequate or ineffective

to test the legality of [a prisoner’s] detention”); Brendan W.

                                         7
Randall, Comment, United States v. Cooper: The Writ of Error Coram

Nobis and the Morgan Footnote Paradox, 

. Rev. 1063, 1072

(1990).   The Brierton panel relied on the advisory committee note

to Rule 1 of the Rules Governing Section 2255 Proceedings for the

United States District Courts to support its determination that the

Suspension Clause did not apply to § 2255 proceedings because those

proceedings were not habeas petitions. The advisory committee note

surmised that “a motion under § 2255 is a further step in the

movant’s criminal case and not a separate civil action.”    Rule 1 of

the Rules Governing § 2255 Proceedings advisory committee note.

     Clearly, if we were to follow narrowly the advisory committee

note’s statement, then the issue would appear resolved.     But other

courts and commentators have suggested against overly relying on

the advisory committee’s note regarding any distinction between a

§ 2255 motion and a habeas proceeding.   See United States v. Means,

, 449 (6th Cir. 1998); United States v. Simmonds, 

, 742-43 (10th Cir. 1997); United States v. Nahodil, 

, 328-29 (3d Cir. 1994); see also Charles Alan Wright,

Federal Practice and Procedure § 590, at 422 (1982) (observing

that, prior to the adoption of the Rules Governing § 2255, § 2255

proceedings had widely been presumed to be independent civil

actions and noting the limited amount of legislative history in

support of the advisory committee note’s position).        Instead of

discerning an inviolable distinction with definite parameters, many


                                 8
of those courts have concluded that a § 2255 motion is a hybrid,

with       characteristics    indicative        of   both   civil   and     criminal

proceedings.        See 

; 

. Thus, those courts have not placed undue importance on the

advisory committee note but have realized that “[t]he precise

nature of § 2255 proceedings . . . remains highly dependent on the

proceedings’ context.”            

          We, likewise, have found consistency in defining § 2255

proceedings an elusive task.             Compare Young, 

, with

United States v. Cole, 

(5th Cir. 1996) (holding that

the Prison Litigation Reform Act’s procedures concerning payment of

fees by prisoners seeking to proceed in forma pauperis in civil

suits not applicable to § 2255 proceedings).                  Accordingly, we do

not believe that the advisory committee note mandates a finding

that a § 2255 is not a civil matter for purposes of § 636(c).2

Rather, the determination of whether a § 2255 proceeding is civil

or       criminal   in   nature    is   dependent     on    the   context    of   the

proceedings, including the legislative and statutory framework in

which the § 2255 proceeding must be examined.

          Here, the context of the issue centers on the jurisdictional

provisions pertaining to magistrate judges.                 Congress amended the

Federal Magistrates Act in 1979 to include § 636(c), the section on



     2
   With this determination, we do not question whether the Brierton
panel’s ruling was correct.

                                          9
a magistrate judge’s jurisdiction over consensual civil matters.

It did so “to improve access to the federal courts.”          H.R. Conf.

Rep. No. 96-444, at 1 (1979).       In particular, Congress sought to

protect the less-advantaged from the “vicissitudes of adjudication

delay and expense” and to help the federal court system “cope and

prevent inattention to a mounting queue of civil cases pushed to

the back of the docket.”        S. Rep. No. 96-74, at 3 (1979).      That

intent and legislative history suggest that the terms “civil

matter” in § 636(c) should be broadly interpreted to allow for

increased   availability   of    adjudications   by   magistrate   judges.

Consequently, at least with respect to § 2255 proceedings, the

scope of § 636(c) reveals that such proceedings are civil in

nature. Additional support for this conclusion may be derived from

§ 636(b), which provides authority to magistrate judges to conduct

hearings and to submit to the district court proposed findings of

fact and recommendations for the disposition, by the district

court, of applications for post-trial relief made by individuals

convicted of criminal offenses.          See 28 U.S.C. § 636(b)(1)(B).

Although under § 636(b) a magistrate judge does not have authority

to enter a final judgment, the grant of authority to review matters

pertaining to all post-trial relief, and not just habeas petitions,

seems to reflect a general legislative bias towards allowing

magistrate judge oversight of § 2255 proceedings. In light of that

statutory framework and legislative intent, we hold that for



                                    10
purposes of § 636(c), a § 2255 proceeding is a civil matter over

which Congress intended magistrate judges to exercise jurisdiction

upon consent of the parties.

B.    Article III Strictures Preclude Delegation of § 2255
      Proceedings to Magistrate Judges

      Even though § 2255 proceedings may be presumed civil in nature

for   purposes    of   §   636(c),   we    must   still   determine     whether

delegating those proceedings to magistrate judges comports with the

strictures   of   Article    III.     Article     III,    Section   1   of   the

Constitution provides that “the judicial Power of the United

States, shall be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain and establish”

and that “[t]he Judges, both of the supreme and inferior Courts,

shall hold their Offices during good Behaviour, and shall, at

stated Times, receive for their Services, a Compensation, which

shall not be diminished during their Continuance in Office.”                 This

constitutional provision serves two purposes: 1) “to safeguard

litigants’ right to have claims decided before judges who are free

from potential domination by other branches of government” and 2)

“to protect the role of the independent judiciary within the

constitutional scheme of tripartite government.” 

(citations and internal quotation marks omitted).                    The

former concerns a defendant’s personal right to have his case heard

by an Article III judge.        

.        That right may




                                      11
be       waived.3    

     purpose   pertains   to   “certain

structural guarantees which ensure respect for separation-of-powers

principles.”         

Section 1 seeks to ensure such

respect “by barring congressional attempts to transfer jurisdiction

[to non-Article III tribunals] for the purpose of emasculating’

constitutional courts, and thereby preventing the encroachment or

aggrandizement of one branch at the expense of the other.”                       Schor,

106      S.   Ct.   at    3256    (citations        and   internal   quotation   marks

omitted).       When these Article III guarantees are at issue, consent

or waiver by the parties to proceed before a non-Article III

officer       diminishes     but       does   not    eliminate   the   constitutional

concerns associated with the delegation of judicial authority to

non-Article         III     tribunals         because      the   guarantees      serve

institutional interests that the parties cannot be expected to

protect. See 

3259.                  Because Johnston consented to the

use of a magistrate judge in his case, thereby waiving any personal



     3
   Waiver, though, may not always be conclusive with respect to
this first concern “if the alternative to the waiver were the
imposition of serious burdens and costs on the litigant.”
Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 

, 543 (9th Cir. 1984) (en banc). “If it were shown that the
choice is between trial to a magistrate or the endurance of delay
or other measurable hardships not clearly justified by the needs of
judicial administration, we would be required to consider whether
the right to an Article III forum had been voluntarily
relinquished.” Id.; see also Geras v. Lafayette Display Fixtures,
Inc., 

, 1042 (7th Cir. 1984) (requiring availability
of trial before an Article III judge as a realistic and viable
alternative to sustain constitutional challenge against reference
of civil matters to magistrate judges).

                                              12
right he may have had to have his case reviewed by an Article III

judge, the only matter before us is whether the delegation of the

§   2255    motion    pursuant   to   §     636(c)   offended    the    structural

guarantees of Article III.

      The    Supreme     Court    has       never    directly    addressed       the

constitutionality of civil trial authority of magistrate judges,

but it has made passing reference to the authority of such judges

to preside over civil jury trials with the consent of the parties

under § 636(c) without commenting upon its constitutionality in

Gomez v. United States, 

(1989), and later again in

Peretz v. United States, 

(1991).                  See Magistrate

Judges Division of the Administrative Office of the United States

Courts, A Constitutional Analysis of Magistrate Judge Authority,

, 303 (1993).           On the other hand, almost all of the

circuit courts, including ours, have specifically addressed that

issue and concluded that magistrate judges’ jurisdiction over civil

cases   with   the     consent   of   the      parties   does   not    violate   the

Constitution.        See Puryear v. Ede’s Ltd., 

(5th Cir.

1984); Bell & Beckwith v. United States, 

(6th Cir.

1985); Gairola v. Virginia Dep’t of Gen. Servs., 

(4th

Cir. 1985); D.L. Auld Co. v. Chroma Graphics Corp., 

(Fed. Cir. 1985); Fields v. Washington Metro. Area Transit Auth.,

(D.C. Cir. 1984); Geras v. Lafayette Display Fixtures,

Inc., 

(7th Cir. 1984); Lehman Bros. Kuhn Loeb, Inc.

                                          13
v. Clark Oil & Refining Corp., 

(8th Cir. 1984);

Collins v. Foreman, 

(2d Cir. 1984); Goldstein v.

Kelleher, 

(1st Cir. 1984); Campbell v. Wainwright, 

(11th Cir. 1984); Pacemaker Diagnostic Clinic, Inc. v.

Instromedix, Inc., 

(9th Cir. 1984) (en banc); Wharton-

Thomas v. United States, 

(3d Cir. 1983); cf. United

States v. Dobey, 

(10th Cir. 1985) (quoting favorably

from Pacemaker and Collins).          In Puryear, we summarily found

§ 636(c) to be constitutional, referring to four decisions by our

sister courts: Pacemaker, Goldstein, Collins, and Wharton-Thomas.

See 

.           Of those four decisions, the

seminal one for purposes of Article III analysis is Pacemaker, an

opinion authored by then-Judge, now Justice Kennedy.                  Sitting en

banc, the Ninth Circuit noted two concerns raised by § 636(c): 1)

whether, by providing for reference of court cases to magistrate

judges, Congress invaded the power of a coordinate branch or

permitted   an    improper    abdication      of        that   branch’s   central

authority; and 2) whether the requirement of entry of judgment by

a non-Article III jurist improperly directs the judiciary in the

performance of its duties.          

.                To

evaluate those concerns, the Ninth Circuit set forth the following

standard:   did    the    statute   prevent        or     substantially   impair

performance by the judiciary of its essential role under the

Constitution?     

essential, constitutional role of the

                                    14
judiciary is to be maintained, there must be both the appearance

and   the   reality    of       control    by   Article    III   judges    over    the

interpretation, declaration, and application of federal law.”                      

must be more than simple appellate review.                            

       the    statute       covering     magistrate      judges’

jurisdiction invests the Article III judiciary with extensive

administrative     control        over    the   management,      composition,      and

operation of the magistrate judge system, the Pacemaker court found

no constitutional objection.              

§ 2255 motions are civil matters for purposes of

§ 636(c), we should be able to rely on Puryear and Pacemaker,

complete the syllogism that has been established, and conclude that

the   delegation      of    §    2255     motions   to     magistrate     judges    is

constitutional.       That is, because § 2255 motions are civil matters

and because consensual delegation of civil matters to magistrate

judges has been found to be constitutional, delegation of § 2255

motions is also constitutional.             But as we previously noted about

§ 2255 motions, what may seem so logical and straightforward is not

always the ineluctable result.                  At least for the purposes of

Article III analysis, a § 2255 motion does not easily comport with

the average civil case or even another quasi-civil proceeding such

as a § 2254 petition and, consequently, presents three major

problems besides those problems already well-addressed in the

opinions on consensual delegation of civil cases.


                                           15
     First, unlike the average civil case or a § 2254 proceeding,

a § 2255 motion directly questions the validity of a prior federal

court ruling.    The average civil case involves a dispute over the

rights and obligations of the litigants to the case and does not

generally concern prior legal rulings by another judge.     Section

2254 proceedings do attack prior judgments, but they pertain to

state court criminal cases.       As such, in § 2254 proceedings,

concerns over comity and federalism are more pronounced than any

concerns over the structural guarantees of Article III.     That is

especially true when one considers that few states, if any, have

the lifetime tenure and undiminishable compensation, which form the

bulwark of the judiciary’s quality and independence so integral to

Article III.    Under § 2255, a federal prisoner may move to vacate,

set aside, or correct a sentence that was imposed by a federal

judge, and principles of res judicata do not apply in such a

proceeding, see United States v. Reyes, 

, 864 (5th Cir.

1991).   If the parties to a § 2255 motion consent to proceed before

a magistrate judge, that magistrate judge could attack the validity

of an Article III judge’s rulings.      Such an act clearly raises

Article III concerns because judges without lifetime tenure and

undiminishable compensation would have controlling authority. See,

e.g., James G. Woodward & Michael E. Penick, Expanded Utilization

of Federal Magistrate Judges: Lessons from the Eastern District of

Missouri, 43 St. Louis U. L.J. 543, 555-56 (1999) (finding awkward


                                  16
and ill-advised a magistrate judge’s disposition of a § 2255

proceeding because such an assignment to a magistrate judge would

empower a subordinate judicial officer to review and perhaps vacate

or modify a sentence that had been ordered by an Article III

judge).

     On the other hand, we have previously held that once the

parties   provide   consent     and   the   district   court   specifically

designates a magistrate judge to conduct the civil proceedings, the

magistrate judge is not bound by the prior opinions expressed by

the district court in the case.        See Cooper v. Brookshire, 

, 378 n. 6 (5th Cir. 1995); Charles Alan Wright et al., Federal

Practice and Procedure § 3072, at 416 (2d ed. 1997) (“Certain

rulings   by   a    presiding    judge      are   inherently   subject   to

reconsideration, such as limits on discovery.              Should parties

consent to proceedings before a magistrate judge after the assigned

district judge has made such a ruling, the magistrate judge must

have authority to modify the order.”); see generally Hill v. City

of Pontotoc, 

, 425 (5th Cir. 1993) (noting that judges

of coordinate jurisdiction will defer to another’s interlocutory

rulings out of deference, not obedience).              But see Taylor v.

National Group of Companies, Inc., 

, 413-14 (N.D.

Ohio 1990) (finding that a magistrate judge’s jurisdiction is not

merged with that of the district court to vest the magistrate with

authority to reconsider and set aside a prior decision of the


                                      17
district court).        We may, however, distinguish Cooper from cases

involving § 2255 motions as Cooper was a civil action and concerned

the overturning of the district court’s statute of limitations

.          By vacating under § 2255 a district

court’s criminal sentence, a magistrate judge does not merely

overturn another judge’s civil ruling; instead, she directly places

herself    in   the    murky     confines    of    federal   criminal   law   and

procedure, which in and of itself may violate Article III.                    See

infra. Thus, although a magistrate judge may have the authority to

reconsider a district court’s prior decision in a civil case, that

does not necessarily mean that a magistrate judge has the authority

to do the same in a § 2255 proceeding upon receiving the parties’

consent.

     Even if the ability of a magistrate judge to overturn an

Article III jurist’s prior ruling does not raise Article III

issues, the notion that a § 2255 proceeding is a further step in

the movant’s criminal case, see Rule 1 of the Rules Governing §

2255 Proceedings advisory committee note, means that the consensual

delegation      of    such   a   proceeding       may   unwittingly   embroil   a

magistrate judge in the unconstitutional conduct of a felony trial,

raising the second major problem.             One guiding principle of our

previous Article III analysis has been that we doubt that a non-

Article III judge can preside over a felony trial without violating




                                        18
the strictures of Article III.4     

.      That is

because: 1) a felony trial is a complex affair requiring close

oversight of delicate constitutional questions; 2) a district court

cannot adequately review a magistrate judge’s actions in an entire

felony trial; and 3) by giving away critical criminal jurisdiction,

federal   judges   risk   devitalizing   their   coordinate   branch   of

government, thereby upsetting our constitutional balance.5             

an act delegated to a magistrate judge encroaches

upon a district court’s exclusive felony trial domain, Article III

concerns move to the forefront.        

seriously questions

that the issue of sentencing is an integral part of the felony

criminal process.    See, e.g., Gardner v. Florida, 

,

1205 (1977) (describing sentencing as “a critical stage of the


  4
   We recognize that § 636(a) provides magistrate judges the
authority to enter final judgments in misdemeanor criminal matters
with the consent of the parties.     Whether such a delegation is
constitutional is less in doubt as “petty offenses were not
historically considered ‘crimes’ at common law” and were “summarily
disposed of by judicial officers other than Article III 

; see also 

(referring to Congressional intent to give magistrate judges
consensual misdemeanor trial authority in 1979 as partial
justification for permitting magistrate judges the authority to
conduct consensual felony voir dire).
  5
   Parties to a civil case have options, such as arbitration, which
suggest that other quasi-judicial forums like proceedings before
magistrate judges may be appropriate forums for consensual civil
actions. Federal criminal cases, however, reside in the federal
court system, i.e., the Article III district courts. The police
power of the United States is generally not abdicated to another
forum. Accordingly, matters relating to federal criminal matters
evince greater Article III concerns than do those linked to civil
cases.

                                  19
criminal proceeding”).      Admittedly, the Supreme Court has allowed

for the consensual delegation of voir dire, another integral

component of the felony trial.              

.

Likewise, we have concluded that the delegation of plea allocutions

is proper and does not violate Article III.           

.

But in the case of voir dire, a district court retains the ultimate

decision     about   whether    to    empanel   the     selected    jury     and,

consequently, less Article III concerns exist.            

     As for

plea allocutions, they are more ministerial in nature and do not

form an essential component of the actual trial.                   

Sentencings are not ministerial in nature and require the legal

judgment and acumen of a learned jurist, who may, at times must, do

the unpopular and, therefore, may need the shield of independence

afforded Article III jurists. Accordingly, in our view, the act of

sentencing does not compare with voir dire or plea allocutions for

purposes of Article III.        Therefore, if a magistrate judge were

unable to do felony sentencings, then it would be odd for such a

judge to have the power under § 2255 to resentence or to even

vacate a prior sentence resulting from a felony conviction.

     Third    and    finally,   the   consensual      delegation    of   §   2255

proceedings under § 636(c) presents reviewability problems severe

enough to create the impression that magistrate judges are not

adjuncts, but are independent of Article III control.              The Supreme

Court and our sister courts have consistently asserted that the


                                       20
ability of Article III district courts to control and review a

magistrate judge’s decision provides compelling support for the

constitutionality of increased magistrate judge participation in

the federal court system.    See        

;

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 

, 2874-78 (1982); United States v. Raddatz, 

,

2417 (Blackmun, J., concurring); 

; 

; 

; 

; 

.       For example, the judges

of the district courts have the authority to appoint magistrate

judges and may remove them for cause.         See 28 U.S.C. § 631(a) &

(i).   The district court must specially designate the magistrate

judge before consensual delegation of civil matters may occur. 

  And upon a showing of good cause, the district court

has the power to vacate the reference of a civil matter.        

636(c)(4); see also Charles Alan Wright et al., Federal Practice

and Procedure § 3072, at 416 (2d ed. 1997) (“The power of the

district judge to vacate a reference is an important feature of the

legitimacy of section 636(c) referrals under Article III . . . .”).

Thus, the argument has run that the activities of the magistrate

judge do not endanger the independence of the judiciary because the

magisterial scheme allows for a sufficient amount of control and

review by Article III jurists.   

.    But

if a magistrate judge were allowed to enter a final order in a

                                   21
consensual § 2255 proceeding, that order would not be reviewable by

the district court.   Although that has not stopped us or our sister

circuits from finding the consensual delegation of civil matters to

be constitutional due to the other mechanisms of control available

to district courts, we discern an additional twist with respect to

the nonreviewability of consensual § 2255 motions, which warrant a

different conclusion.    As previously noted, unlike the average

consensual civil matter, a § 2255 proceeding attacks the validity

of and may undermine a prior decision of an Article III judge.

Allowing magistrate judge authority over such proceedings turns the

concept of reviewability on its head.    Rather than district court

review and control, consensual magistrate judge authority over

§ 2255 motions creates the ironic situation whereby non-Article III

magistrate judges review and reconsider the propriety of rulings by

Article III district judges, but do not themselves have to worry

about review.6




  6
   This is even more telling in light of the fact that the Federal
Courts Improvement Act of 1996, Pub. L. No. 104-317, repealed
§ 636(c)(4) & (5), which previously provided the right to appeal
directly to the district court.      As a result, civil matters
litigated pursuant to § 636(c) can only be reviewed on appeal by
the court of appeals. At least before 1996, one could make the
specious argument that the district court would, or rather more
like could, have some review over a consensually delegated civil
matter and, therefore, demonstrate sufficient reviewability for
purposes of Article III. Of course, this is an unavailing argument
in itself because “[t]he required control must be more than simple
appellate review.” 

(citing Northern

n.39).

                                 22
      The fact that a magistrate judge may essentially overturn the

judgment of an Article III district court in a criminally related

case detracts from the reasons supporting constitutionality of

consensually delegated civil matters.                Consensual delegation of

§ 2255 proceedings do not evince sufficient reviewability and

control for purposes of Article III. A magistrate judge may vacate

the   ruling   of    a    district    court   judge,     but    a   district      court

essentially cannot do anything to the magistrate judge. We realize

that the district court could stop a magistrate judge from having

its own criminal judgments vacated by: 1) not appointing magistrate

judges; 2) not originally referring § 2255 proceedings; or 3)

vacating   the      civil    reference      under    §   636(c)(4),        but    those

possibilities are a poor measure of control.                   If the only way to

review and to control something so starkly at odds with Article

III, like having magistrate judges review district court rulings

but not vice versa, is to do any of the three listed options, then

there is no sense for having a magisterial scheme dealing with the

consensual delegation of § 2255 proceedings.               The only options for

reviewability       and     control   are     untenable    with      a   consensual

delegation of § 2255 proceedings to magistrate judges.

      The primary structural guarantee of Article III is to ensure

respect    for       separation-of-powers           principles       “by         barring

congressional attempts to transfer jurisdiction [to non-Article III

tribunals] for the purpose of emasculating’ constitutional courts,

and thereby preventing the encroachment or aggrandizement of one

                                         23
branch at the expense of the other.”                

(citations and internal quotation marks omitted).                     We recognize

that the magisterial scheme is said not to be the “paradigmatic

separation of powers case, where the integrity of one branch is

threatened by another which attempts an arrogation of power to

itself.”      

.    That   is    because    in

situations like the consensual delegation of general civil matters,

the authority of Article III courts is not challenged.                    Instead,

the only conceivable threat to the independence of the judiciary

concerns the danger to the independence of the magistrate judges

from within, rather than from without, the judiciary itself in the

form of Article III district judges.               Cf. 

(Blackmun, J., concurring).             But when magistrate judges, who

do not have lifetime tenure or undiminishable compensation, may

reconsider and vacate Article III judges’ rulings pertaining to

criminal matters, particularly felony convictions, we tread in

different waters.       By allowing consensual delegation of § 2255

proceedings to magistrate judges, we exact a deadly blow to the

vitality and strength of a independent judiciary.                        Congress,

through     its   legislative      powers    to   enact   laws   regulating      and

controlling the term, the salary, the qualifications, the duties,

and   the    establishment      of    magistrate     judges,7    has     then    the


  7
   Specific statutory provisions do provide for certain guidelines
with respect to the term, the salary, the qualifications, the
duties, and the establishment of magistrate judges. See 28 U.S.C.

                                        24
capability to direct the affairs of Article III courts.        That

cannot be allowed and requires our finding that the consensual

delegation of § 2255 proceedings to magistrate judges under §

636(c) is unconstitutional.



                           III. CONCLUSION

     For the foregoing reasons, we conclude that the consensual

delegation of § 2255 motions to magistrate judges violates Article

III of the Constitution.   As a result, we do not address the merits

of Johnston’s appeal, but vacate the judgment entered by the

magistrate judge and remand the case to the district court for

proceedings consistent with this opinion.




§§ 631-636. For example, the salary of a magistrate judge may not
be reduced during the term in which she is serving below the salary
fixed for her at the beginning of that term. 

But those
provisions may always be repealed.

                                  25
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

          I share the majority's concern over the constitutionality of

allowing magistrate judges to dispose of section 2255 motions. I

would not, however, reach this constitutional question. See, e.g.,

Zadvydas v. Davis, 

, 

, at *7 (U.S.

June 28, 2001); United States v. Ford, 

, 1435 (5th

Cir. 1987) (“[W]e insist upon clear congressional expression when

the       reach     of   [a]    claimed    reading     provokes       issues    regarding

constitutionally mandated spheres of governmental power.”).

              It is axiomatic that only an Article III judge can be vested

with the power to conduct a dispositive review of the judgment of

another Article III court.8 Review by the Court of Appeals of a

magistrate judge’s final ruling upon a section 2255 petition offers

little protection for the structural component of Article III,

allowing the parties to agree that an Article III judgement will be

subject to review by a non-Article III judge. The force of these

concerns should not loosen our restraint. Rather, because we can do

so       in    a   principled    manner,      we   ought   to    read   the    challenged

congressional act to avoid this constitutional ruling.

          I    would     read   28   U.S.C.    §    636(c)      to   preclude   granting

magistrate judges the authority to render final judgment in an




     8
    See Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp.,

(1948) ("Judgments within the powers vested in courts
by the Judiciary Article of the Constitution may not lawfully be
revised, overturned or refused faith and credit by another
Department of Government.").
attack under 28 U.S.C. § 2255 upon a final judgment of conviction,

regardless of the parties' consent.

       The impetus to push the trial of civil cases in federal courts

upon magistrate judges is puzzling. According to data compiled by

the Administrative Office, each active Article III judge presided

over an average of only nine civil trials last year;9 the median

length of a civil trial was one or two days.10 The criminal docket

offers little explanation, for Article III judges presided over an

average of only six criminal trials, jury and bench.11 Despite

mounting “case” filings, the number of civil and criminal trials

has declined markedly over the past thirty years in all categories

of cases.12 The shrinking number of trials is the subject of a




  9
    See Administrative Office of the United States Courts, "U.S.
District Court—Judicial Caseload Profile," in Federal Court
Management     Statistics     2000     (2001),     available     at
http://www.uscourts.gov/cgi-bin/cmsd2000.pl; Leonidas Ralph Mecham,
2000 Annual Report of the Director: Judicial Business of the United
States Courts 2000 app. tbls. C-4, D-4 (2001).
  10
     See Mecham, supra note 2, at app. tbl. C-8. This estimate
derives from    Administrative Office data based on a generous
definition of "trial," which includes "miscellaneous cases,
hearings on    temporary   restraining  orders   and preliminary
injunctions, hearings on contested motions and other contested
proceedings in which evidence is introduced." 

Administrative Office, supra note 2; Mecham, supra note 2,
at app. tbl. D-4.
  12
     This assessment is based on data contained in current and past
editions of the Annual Report of the Director: Judicial Business of
the United States Courts.

                                  27
larger debate over the changing role of the United States district

courts.13

       This is not to suggest that the Article III trial judges are

not working. Rather, this phenomenon calls into question the

rationale for the type of work we urge upon magistrate judges.

More to the point, the empirical data highlights the wisdom of the

structural component of Article III, limiting as it does, or

should, the authority of consent by the parties. It is one thing

for two parties to agree to resolve their civil dispute outside

the courthouse. It is another to accept their agreement to proceed

privately while remaining inside the courthouse. And we have never

accepted    a   purely   private   resolution   of   criminal   matters.   A

proceeding to decide if a criminal conviction will stand is a

criminal proceeding in every relevant practical and functional

sense, however we choose to label it.

       I join the holding that petitions for relief from federal

criminal convictions under 28 U.S.C. § 2255 may not be referred to

a magistrate judge for final disposition.




  13
     See, e.g., Judith Resnik, Trial As Error, Jurisdiction As
Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev.
924 (2000).

                                     28