Walker v. O'Brien

• Decision Date: 22 June 2000
• Docket Number: Nos. 96-4010,97-3792,97-3797,s. 96-4010
• Citation: 216 F.3d 626
• Parties: (7th Cir. 2000) Jimmy Walker, Petitioner-Appellant, v. J.T. O'Brien, Respondent-Appellee. and Joseph W. Finfrock, Petitioner-Appellant, v. Craig A. Hanks, Respondent-Appellee. , to 97-3800, 98-1328
• Court: U.S. Court of Appeals — Seventh Circuit

Page 626

216 F.3d 626 (7th Cir. 2000)

Jimmy Walker, Petitioner-Appellant, v. J.T. O'Brien, Respondent-Appellee. and Joseph W. Finfrock, Petitioner-Appellant, v. Craig A. Hanks, Respondent-Appellee.

Nos. 96-4010, 97-3792, 97-3797, to 97-3800, 98-1328

In the United States Court of Appeals For the Seventh Circuit

Argued January 19, 1999

Decided June 22, 2000

Appeals from the United States District Court for the Western District of Wisconsin. No. 96-C-661-C--Barbara B. Crabb, Judge. And Nos. 97-3792, 97-3797, 97-3798, 97-3799, 97-3800

Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. IP97-0861-C-H/G--David F. Hamilton, Judge, IP97-0996-C-M/S--Larry J. McKinney, Judge, IP97-0997-C-T/G--John Daniel Tinder, Judge, IP97-0998-C-T/G--John Daniel Tinder, Judge, IP 97-0999-C-H/G--David F. Hamilton, Judge. [Copyrighted Material Omitted] Before Flaum, Ripple, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

The passage of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, sec. 801 et seq., 110 Stat. 1321-66 (1996), which became effective on April 24, 1996 and April 26, 1996, respectively, ushered in a new and far more restrictive era for prisoner litigation. A critical feature of both statutes was the creation of gatekeeping mechanisms designed to keep frivolous suits out of the federal courts. Both this court and our sister circuits have had occasion during the nearly four years that have passed since the laws took effect to flesh out the rules governing those gatekeeping functions. The cases before us today, which we consolidated for purposes of oral argument and this opinion, raise once again the question of how the statutory gatekeeping mechanisms work together: in particular, whether the fee payment and other rules of the PLRA apply to requests for federal collateral relief, whether under 28 U.S.C. sec.sec. 2241, 2254, or 2255. We say "again," because the court has already spoken to this question in two decisions, Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997), and Thurman v. Gramley, 97 F.3d 185 (7th Cir. 1997), which held that civil filing fees must be paid pursuant to the PLRA in collateral relief proceedings that are not a functional continuation of the criminal prosecution. See Newlin, 123 F.3d at 438.

Experience has shown that our views are not shared by any other court, and so we asked the parties in these two cases to brief the question whether we should reconsider this particular aspect of Newlin and Thurman.¹ With the benefit of the views from the other circuits, we have concluded that the line Newlin draws between collateral attacks that are in some way related to the original criminal proceeding and those that are not should be abandoned. Indeed, we find such a dichotomy inconsistent in principle with the Supreme Court's decisions in Edwards v. Balisok, 520 U.S. 641 (1997), and Preiser v. Rodriguez, 411 U.S. 475 (1973). We therefore hold today, in keeping with the decisions in Davis v. Fechtel, 150 F.3d 486, 488-90 (5th Cir. 1998); McIntosh v. United States Parole Commission, 115 F.3d 809, 811-12 (10th Cir. 1997); and Blair-Bey v. Quick, 151 F.3d 1036, 1039-41 (D.C. Cir. 1998), that the PLRA does not apply to any requests for collateral relief under 28 U.S.C. sec.sec. 2241, 2254, or 2255. See also Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997) (holding broadly that PLRA does not apply to habeas corpus petitions filed by state prisoners); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996) (same with respect to habeas corpus actions); Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996) (same with respect to actions under 28 U.S.C. sec.sec. 2254 and 2255); Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997) (same with respect to habeas corpus actions); Kincade v. Sparkman, 117 F.3d 949, 950-51 (6th Cir. 1997) (same with respect to actions under 28 U.S.C. sec.sec. 2254 and 2255); Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (same with respect to habeas corpus actions); Anderson v. Singletary, 111 F.3d 801, 806 (11th Cir. 1997) (same with respect to actions under 28 U.S.C. sec.sec. 2254 and 2255). Because Part III of this opinion overrules in part an earlier decision of a panel of this court, and because Parts II and IV address important issues about the administration of the habeas corpus regime, the opinion has been circulated to the full court under Circuit Rule 40(e). A majority of the judges in active service did not wish to rehear the case en banc. Chief Judge Posner and Judges Easterbrook and Manion disagreed with that decision, for the reasons expressed in the dissenting opinion of Judge Easterbrook that follows the panel's opinion.

I

The cases that have prompted us to return to the question whether the PLRA applies to collateral relief proceedings both arise from prison disciplinary proceedings. We briefly review the background facts of each one before turning to the central question before us.

A. Walker v. O'Brien

Jimmy Walker was involved in a disturbance while he was incarcerated at the Federal Correctional Institution in Greenville, Illinois, which resulted in his allegedly damaging the door to his cell. A security officer at Greenville issued an incident report charging him with "destroying, altering, or damaging government property." Walker pleaded not guilty to the charge and requested staff representation. He also asked the officials to call his cellmate, inmate Holloway, as a witness at the hearing. Notwithstanding his request, he was not represented at the hearing, and the hearing officer found him guilty based on the incident report, a written statement from Holloway, and a written statement from another correctional officer. He was sentenced to spend 30 days in disciplinary segregation, to forfeit 14 days' good time credit, and to pay $1245 as restitution (representing the cost of repairing the door).²

Because his penalty involved the duration of his confinement, Walker initially pursued the administrative remedies that were available to him in the prison system and then filed the present petition for a writ of habeas corpus under 28 U.S.C. sec. 2241. A collateral attack was the only route available to him, as this court had held in Miller v. Indiana Department of Corrections, 75 F.3d 330 (7th Cir. 1996), and the Supreme Court later confirmed in Edwards v. Balisok, supra. Walker was required to use sec. 2241 in particular because 28 U.S.C. sec. 2255, the habeas corpus substitute for federal prisoners, is properly used only for challenges to convictions and sentences, while sec. 2241 is used for other challenges to the fact or duration of confinement. See generally Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998); Carnine v. United States, 974 F.2d 924, 927 (7th Cir. 1992).

At that point, matters became a bit complicated. First, invoking the screening mechanism that applies to complaints in "civil actions" filed by prisoners, the district court sua sponte dismissed Walker's action prior to service on the ground that it was frivolous because there was some evidence to support the imposition of disciplinary measures. See Superintendent v. Hill, 472 U.S. 445 (1985); 28 U.S.C. sec. 1915A(b)(1). The court declined, however, to impose a filing fee. Walker appealed the dismissal of his case (No. 96-4010) and asked for permission to proceed in forma pauperis (IFP). The court denied his request, finding that the appeal was frivolous under 28 U.S.C. sec. 1915(e)(2)(B) (notwithstanding the fact that the frivolousness of an appeal under this provision is a question for the court of appeals) and that the appeal was not in good faith for purposes of 28 U.S.C. sec. 1915(a)(3). The latter determination prevented Walker from proceeding IFP on appeal, at least without a ruling from this court, Celske v. Edwards, 164 F.3d 396, 397 (7th Cir. 1999); Newlin, 123 F.3d at 432, and therefore obligated Walker to pay the full $105 filing fee. He has done so.

After the appeal was underway, Walker filed a motion for reconsideration of the underlying ruling in the district court under Rule 60. The court denied the motion because the appeal was pending; Walker moved for reconsideration, and the court again ruled against him. Walker then filed a notice of appeal, although it is somewhat unclear which order he intended to challenge (No. 98-1328). The district court ruled that an appeal from the Rule 60 orders would not be in good faith, which again disqualified Walker for IFP treatment and made a second $105 payment due. Walker, who has filed a motion with this court to proceed IFP, has not paid the second fee, and this court has deferred any assessment pending the outcome of this appeal.

B. Finfrock v. Hanks

Joseph Finfrock, an inmate of the Wabash Valley Correctional Facility in Indiana, filed a habeas corpus petition under 28 U.S.C. sec. 2254 in which he attacked five separate prison disciplinary decisions. Prison officials had charged Finfrock with various types of misconduct in violation of prison rules, such as improper possession and damaging of a law book, threatening to beat a correctional officer, slamming a fellow prisoner against a door, spitting on a fellow inmate, and attempting to escape during transport from one prison to another. What the proceedings have in common is that Finfrock was adjudged guilty in each one. In three cases he lost good-time credit: 60 days in No. 97-3792, 167 days in No. 97-3797, and 60 days in No. 97- 3798. In two cases his classification for purposes of earning good-time credit was reduced (Nos. 97-3798 and 97-3799). In four cases, Finfrock was sentenced to varying time periods in disciplinary segregation (Nos. 97-3797, 97-3798, 97- 3799, and 97-3800).³

By order of the U.S. District Court for the Southern District of Indiana,...