                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 JUN 23 1997
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                        Clerk

 RICHARD C. WHITE,

                Petitioner - Appellant,                       No. 97-1014
           v.                                                 (D. Colorado)
 MARC McKINNA, Warden; THE                               (D.C. No. 96-S-2331)
 SUPREME COURT OF COLORADO,

                Respondents - Appellees.


                               ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       Petitioner Richard C. White is currently incarcerated in the Colorado Territorial

Correctional Facility. He filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254, challenging the validity of his state conviction on numerous grounds. The


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
district court ordered Mr. White to show cause why his petition should not be dismissed

pursuant to 28 U.S.C. § 1915(g) because he has, on three or more prior occasions, while

incarcerated, brought an action which was dismissed as frivolous or for failure to state a

claim and because Mr. White failed to allege that he was under imminent danger of

serious physical injury. The court also ordered him to cure certain deficiencies in his

petition and in his in forma pauperis motion.

       Mr. White subsequently cured the deficiencies and filed two responses to the order

to show cause, alleging “imminent danger of serious physical injury,” R., Docs. 7, 15,

and referencing two other civil actions he had filed. The district court then denied him

leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and dismissed his

petition because he has previously filed, while incarcerated, three or more actions which

were dismissed as frivolous or for failure to state a claim. The district court also held that

Mr. White had failed to demonstrate that he is in imminent danger of serious physical

injury in this case. The court subsequently denied Mr. White’s motion for

reconsideration, and, finally, entered an order denying him leave to appeal in forma

pauperis and denied his application for a certificate of appealability. The district court’s

reasons for so ruling were the same as in its initial order -- Mr. White had brought three

or more frivolous or meritless actions while incarcerated, and failed to show that he was

in imminent danger of serious physical injury. The court denied the certificate of

appealability because it concluded Mr. White had “not made a substantial showing of the


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denial of a constitutional right regarding his ability to proceed in forma pauperis.” R.,

Doc. 21 at 2 (District Court Order).

       The in forma pauperis statute, 28 U.S.C. § 1915, as amended by the Prison

Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (April 26,

1996) provides:

       In no event shall a prisoner bring a civil action or appeal a judgment in a
       civil action or proceeding under this section if the prisoner has, on 3 or
       more prior occasions, while incarcerated or detained in any facility, brought
       an action or appeal in a court of the United States that was dismissed on the
       grounds that it is frivolous, malicious, or fails to state a claim upon which
       relief may be granted, unless the prisoner is under imminent danger of
       serious physical injury.

28 U.S.C. § 1915(g).

       We have recently held, however, that habeas corpus petitions are not “civil

action[s]” for purposes of the “three strikes” provision. United States v. Simmonds, 111

F.3d 737 (10th Cir. 1997). The district court therefore erred when it dismissed Mr.

White’s habeas petition under § 1915(g).

       We accordingly GRANT the certificate of appealability and GRANT Mr. White’s

motion to proceed in forma pauperis. We REVERSE the district court’s dismissal of his

petition and we REMAND for further proceedings.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge


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