Davis v. Fechtel

• Decision Date: 07 August 1998
• Docket Number: No. 97-10818,97-10818
• Citation: 150 F.3d 486
• Parties: Samuel John Major DAVIS, Jr., Petitioner-Appellant, v. Vincent J. FECHTEL, Jr., Commissioner of the United States Parole Commission; Victor M.F. Reyes, Commissioner of the United States Paroles Commission; G. Mackenzie Rast, Commissioner of the United States Parole Commission, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 486

150 F.3d 486

Samuel John Major DAVIS, Jr., Petitioner-Appellant, v. Vincent J. FECHTEL, Jr., Commissioner of the United States

Parole Commission; Victor M.F. Reyes, Commissioner of the

United States Paroles Commission; G. Mackenzie Rast,

Commissioner of the United States Parole Commission,

Respondents-Appellees.

No. 97-10818.

United States Court of Appeals, Fifth Circuit.

Aug. 7, 1998.

Samuel John Major Davis, Jr., Fort Worth, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas.

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

BENAVIDES, Circuit Judge:

Samuel John Major Davis, Jr., a federal prisoner, appeals the district court's dismissal of his 28 U.S.C. section 2241 habeas petition as an abuse of the writ. ¹ This case is now before us on a motion for leave to proceed in forma pauperis. We write principally to decide an issue not yet addressed in this circuit, whether the Prison Litigation Reform Act (hereinafter PLRA) ² applies to section 2241 habeas petitions. Concluding that Congress did not intend for the term "civil action" to include section 2241 habeas proceedings, we find that the PLRA does not apply. Additionally, we determine that the district court properly dismissed Davis's third petition as an abuse of the writ. Because Davis has failed to present a nonfrivolous issue on appeal, we deny his motion for leave to proceed in forma pauperis.

I. PROCEDURAL HISTORY

In 1994, Davis filed a section 2241 habeas petition alleging that the United States parole commission had failed to comply with its own regulations and federal statutes in denying him parole. The district court denied his petition, and this Court affirmed on the merits. Davis subsequently filed a second section 2241 petition, which the district court dismissed as an abuse of the writ. On appeal, this Court dismissed it as an abuse of the writ.

Undaunted, Davis filed a third suit (styled as a mandamus under 28 U.S.C. section 1361), purporting to seek only a directive to the individual members of the parole commission to correct errors that he complained of in a previous petition. ³ The court below construed Davis's petition as a section 2241 habeas petition and concluded that because the grounds for relief had previously been determined to constitute an abuse of the writ, the instant petition also was an abuse of the writ and dismissed the petition with prejudice.

Davis then moved to proceed on appeal in forma pauperis. After reviewing Davis's inmate trust record and observing that Davis had received more than $1200 into his inmate account in recent months, the district court denied the motion, concluding that Davis could afford the $105 appellate filing fee. In its order of denial, the district court determined that the PLRA was not applicable to a section 2241 habeas petition. Before us now is Davis's "motion for leave to file appeal without prepayment of filing fee and to pay the $105 filing fee in (4) installment payments."

II. ANALYSIS

A. HABEAS OR MANDAMUS ACTION

Davis strenuously argues that the district court erred in construing his mandamus action as a section 2241 habeas petition. This Court has held that a court may liberally construe a pro se petitioner's pleading and treat it as a habeas corpus petition, where appropriate. See Russell v. Knight, 488 F.2d 96, 97 (5th Cir.1973) (construing mandamus petition as a section 2254 habeas petition).

Mandamus is, of course, an extraordinary remedy. In re Stone, 118 F.3d 1032, 1034 (5th Cir.1997). To obtain a mandamus order, a petitioner must establish "(1) a clear right to the relief, (2) a clear duty by the respondent to do the act requested, and (3) the lack of any other adequate remedy." Id.

Contrary to Davis's contentions, his challenge directly implicates the duration of his present confinement. He requests that a mandamus issue to order the parole commission to perform an act that would reduce his sentence. As such, his claim is challenging the execution of his sentence and therefore is a section 2241 claim. United States v. Tubwell, 37 F.3d 175, 177 (5th Cir.1994) (challenging execution of sentence is section 2241 claim).

Indeed, the District of Columbia Circuit has held that mandamus was not the appropriate avenue to redress a federal prisoner's challenge to his parole eligibility date and that section 2241 provided the exclusive remedy. Chatman-Bey v. Thornburgh, 864 F.2d 804, 808-810 & n. 5, 814 (D.C.Cir.1988). We need not determine today, however, whether habeas corpus is the exclusive remedy for a federal prisoner bringing a challenge to the execution of his sentence. Clearly, habeas corpus was available to Davis, and his abuse of the Great Writ did not render it unavailable or inadequate. Thus, the district court properly construed Davis's pleading as one falling under section 2241.

B. WHETHER THE PLRA APPLIES

Next, we must determine whether the PLRA's financial screening and assessment requirements apply to 28 U.S.C. § 2241 habeas proceedings. The PLRA amended 28 U.S.C. § 1915 to impose filing fee obligations on a prisoner who "brings a civil action or files an appeal in forma pauperis." § 1915(b)(1). ⁴ Here, the question is whether a § 2241 habeas proceeding is a "civil action" within the meaning of the PLRA.

When interpreting a statute, we first look to its plain language. Sutton v. United States, 819 F.2d 1289, 1294 (5th Cir.1987). "Specific words within a statute, however, may not be read in isolation of the remainder of that section or the entire statutory scheme." Id. at 1293.

It is true that habeas corpus proceedings are technically "civil actions." Nevertheless, the Supreme Court has made clear that that "label is gross and inexact" and that "the proceeding is unique." Harris v. Nelson, 394 U.S. 286, 293-94, 89 S.Ct. 1082, 1087, 22 L.Ed.2d 281 (1969). We must presume, of course, that Congress was aware of the construction courts had given to the terms in the statute. Sutton, 819 F.2d at 1294.

Although this Court has not addressed the precise question of whether the PLRA applies to section 2241 proceedings, ⁵ we have determined that actions brought under 28 U.S.C. §§ 2255 and 2254 are not "civil actions" for the purposes of the PLRA. United States v. Cole, 101 F.3d 1076 (5th Cir.1996) (§ 2255); Carson v. Johnson, 112 F.3d 818 (5th Cir.1997)(§ 2254). In Cole, this Court looked to the holdings of three other circuits which had recognized that although habeas proceedings are technically "civil actions," there are several considerations that counsel against applying the PLRA to them. ⁶ The Third Circuit stated that habeas proceedings were of a hybrid nature, and a plethora of case law demonstrated that habeas proceedings were not necessarily encompassed by the phrase "civil action." Santana, 98 F.3d at 754-55.

Further, we found the following analysis from the Second Circuit persuasive:

First, the [PLRA] was aimed primarily at prisoners' suits challenging prison conditions, many of which are routinely dismissed as frivolous. There is nothing in the text of the [PLRA] or its legislative history to indicate that Congress expected its filing fee payment requirements to apply to habeas corpus petitions. Second, we note that Congress has endeavored to make the filing of a habeas corpus petition easier than the filing of a typical civil action by setting the district court filing fee at $5, compared to the $120 applicable to civil complaints.... Third, Congress gave specific attention to perceived abuses in the filing of habeas corpus petitions by enacting Title I of the AEDPA. ⁷ That title imposes several new restrictions on habeas corpus petitions, but makes no change in filing fees or in a prisoner's obligation for payment of existing fees.

Cole, 101 F.3d at 1077 (quoting Reyes, 90 F.3d at 678) (footnote added).

Additionally, the Seventh Circuit observed a practical difficulty with applying the PLRA to habeas proceedings. If a prisoner previously had filed three frivolous suits, he could not file a petition for habeas relief without paying the full filing fee. ⁸ "This result would be contrary to a long tradition of ready access of prisoners to federal habeas corpus, as distinct from their access to tort remedies." Martin, 96 F.3d at 855-56. Finding these reasons persuasive, this Court held that the PLRA did not apply to § 2255 proceedings. Cole, 101 F.3d at 1077.

Not long after our holding in Cole regarding section 2255 actions, we addressed whether the PLRA applied to section 2254 proceedings. Carson, 112 F.3d 818. In that case, we opined that all the rationales set forth in Cole for not applying the PLRA to section 2255 actions "apply with equal, if not greater, force to 28 U.S.C. § 2254 petitions...." Therefore, we held that the PLRA did not apply to section 2254 proceedings.

Likewise, we believe the above stated reasons for not applying the PLRA to sections 2254 and 2255 cases would also apply to habeas petitions brought pursuant to section 2241. There is, however, a split in the circuits on this issue.

The Tenth Circuit held that "[b]ecause the nature of a § 2241 proceeding is the same as § 2254 and § 2255 proceedings," § 2241 actions are not "civil actions" within the meaning of the PLRA. McIntosh v. U.S. Parole Commission, 115 F.3d 809, 811 (10th Cir.1997). Recognizing that "a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters," the Tenth Circuit nevertheless opined that this does not make a § 2241 action like a "condition of confinement" lawsuit. An execution-of-sentence claim is still challenging the fact or duration of a prisoner's confinement. The prisoner is seeking earlier release as opposed to monetary compensation for prison conditions.

On the other hand, the Seventh Circuit held that the PLRA did apply to section 2241 proceedings. Newlin v. Helman...