98 F.3d 752 (3rd Cir. 1996), 96-5276, Santana v. United States

Docket Nº:96-5276.
Citation:98 F.3d 752
Party Name:Ernesto SANTANA v. UNITED STATES of America, Ernesto Santana, Appellant.
Case Date:October 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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98 F.3d 752 (3rd Cir. 1996)




Ernesto Santana, Appellant.

No. 96-5276.

United States Court of Appeals, Third Circuit

October 18, 1996

Submitted by the Clerk for a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1) Aug. 15, 1996.

As Amended Nov. 14, 1996.

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Ernesto Santana, Ray Brook, NY, Appellant Pro Se.

Kevin McNulty, U.S. Attorney's Office, Newark, NJ, for Appellee.

Before: BECKER, ALITO and McKEE, Circuit Judges.


BECKER, Circuit Judge.

Ernesto Santana has asked this Court to grant a certificate of appealability for his challenge to the district court's denial of habeas corpus relief pursuant to 28 U.S.C. § 2255. As a preliminary matter, Santana's request requires us to determine whether the filing fee payment requirements of the Prison Litigation Reform Act of 1995 apply to in forma pauperis habeas corpus petitions and appeals. We conclude that they do not. Reaching the merits of the request, we find that Santana's petition is wholly without merit, hence the request for a certificate of appealability will be denied.


Santana pled guilty in 1992 to one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841 & 846. The district court sentenced him to prison for the statutory minimum period of 120 months. In the present habeas petition filed pursuant to 28 U.S.C. § 2255, 1 Santana claims that his counsel rendered constitutionally ineffective assistance by failing to object to an alleged miscalculation of a Sentencing Guideline range and by failing to correct the district court's alleged misconception of its ability to reduce his Guideline level. Santana asserts that but for counsel's errors his minimum sentence could have been as low as 87 months.

By Order entered April 12, 1996, the district court denied the request for a writ of habeas corpus. The district court concluded that, because the statutory minimum sentence associated with Santana's offense exceeded the Sentencing Guideline range asserted by Santana, the request for habeas relief lacked merit. Santana filed a timely notice of appeal, which, in light of the recent amendments to habeas corpus law, was construed as a request for a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B).



Before examining the merits of Santana's request, we consider whether, in light of the Prison Litigation Reform Act ("PLRA"), Santana must pay the appellate docketing and filing fees of $105.00. On April 26, 1996, Congress enacted the PLRA as Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996). Section 804 of the

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PLRA, which amends 28 U.S.C. § 1915, redefines the rights and obligations of litigants who are granted in forma pauperis status. Prior to the passage of the PLRA, imprisoned litigants who were granted leave to proceed in forma pauperis could seek and easily obtain waivers of filing fees. The PLRA, however, requires prisoners proceeding in forma pauperis who bring "civil actions" or appeals of "civil actions" to pay all filing fees. The PLRA also establishes an elaborate deferred payment schedule by which litigants may fulfill their filing fee obligations. If an imprisoned litigant's funds are insufficient to pay the full filing fee, the prisoner must pay an initial partial filing fee. Thereafter, the prisoner must make monthly payments to the court until the filing fee is paid in full. 2

In the present case, the district court granted Santana's motion to proceed in forma pauperis on appeal. Thus, if the PLRA is applicable to a habeas corpus action such as Santana's, then he must somehow pay filing and docketing fees of $105 in order to obtain judicial review of his petition for relief.


The PLRA applies to prisoners who bring a "civil action" or who appeal a judgment in a "civil action or proceeding." 28 U.S.C. § 1915(a)(2), (b). But the PLRA neither defines "civil action" for purposes of in forma pauperis litigants nor expressly excludes habeas corpus proceedings from its scope.

At first blush, the plain meaning of the PLRA appears to require petitioners for habeas relief to fulfill its filing fee obligations. Habeas corpus proceedings are technically civil actions. Ex parte Tom Tong, 108 U.S. 556, 559, 2 S.Ct. 871, 872, 27 L.Ed. 826 (1883). Not only do habeas petitions fit within the literal scope of the PLRA, but § 802(a) of the PLRA, which applies to "civil action[s] with respect to prison conditions," explicitly excludes habeas corpus proceedings from its scope. 18 U.S.C. § 3626. As a result, one could argue that, because Congress excluded habeas corpus petitions in one provision, it would have done so in the filing fee provision if it had intended. See, e.g., Van Doren v. Mazurkiewicz, 935 F.Supp. 604, 605-06 (E.D.Pa.1996) (holding that the PLRA applies to habeas corpus proceedings); see also Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.1996) (holding that "petitions for a writ of mandamus are included within the meaning of the term 'civil action' " for purposes of the PLRA).

We do not believe, however, that the meaning of the phrase "civil action" as used in the PLRA is plain. First, habeas corpus cases are, in effect, hybrid actions whose nature is not adequately captured by the phrase "civil action"; they are independent civil dispositions of completed criminal proceedings. James S. Liebman, 1 FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 2.1, at 3 (1988). The "civil" label is attached to habeas proceedings in order to distinguish them from "criminal" proceedings, which are intended to punish and require various constitutional guarantees. Boudin v. Thomas, 732 F.2d 1107, 1112 (2d Cir.1984); see also Ex parte Tom Tong, 108 U.S. at 559, 2 S.Ct. at 872 (Habeas corpus review is a civil proceeding because "[p]roceedings to enforce civil rights are civil proceedings and proceedings for the punishment of crimes are criminal proceedings."). In light of their hybrid nature, habeas proceedings are often determined to be outside the reach of the phrase "civil action." See, e.g., Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 998 n. 4, 28 L.Ed.2d 251 (1971) (nationwide service of process under 28

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U.S.C. § 1391(e) applicable in civil proceedings against United States employees and officers is not available in habeas corpus proceedings); Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) (civil discovery rules do not automatically apply to habeas proceedings); Ewing v. Rodgers, 826 F.2d 967 (10th Cir.1987) (a habeas corpus suit is not a "civil action" for purposes of an award of attorneys fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)); Boudin, 732 F.2d 1107 (similar); Dillard v. Blackburn, 780 F.2d 509 (5th Cir.1986) ("[H]abeas cases are not automatically subject to the rules governing civil actions."); see also Advisory Committee Note to Rule 11 of the Rules Governing § 2254 Cases (Federal Rules of Civil Procedure apply to habeas corpus proceedings only to the extent they are not inconsistent with the habeas rules).

Furthermore, the express exclusion of habeas proceedings found in § 802(a) of the PLRA does not require us to hold that habeas proceedings are "civil actions" for purposes of the PLRA. Section 802, which amends 18 U.S.C. § 3626, limits the power of the federal courts to issue orders of relief from prison conditions by requiring that a "prison release order" be issued by a panel of three judges. A "prison release order," defined as an order "that directs the release from or non admission of prisoners to a prison," § 3626(g)(4), contemplates relief akin to that provided by a writ of habeas corpus. Thus, whereas the phrase "civil action" used in the PLRA's provision regarding filing fees does not clearly encompass habeas proceedings, the text of § 802 does. As a result, in order to distinguish between prison release orders and habeas proceedings, Congress felt compelled to exclude expressly such proceedings from the scope of § 802.

Finally, the plain meaning interpretation of the PLRA is undermined by...

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