In the
United States Court of Appeals
For the Seventh Circuit

Nos. 96-4010, 98-1328

Jimmy Walker,

Petitioner-Appellant,

v.

J.T. O’Brien,

Respondent-Appellee.


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

Joseph W. Finfrock,

Petitioner-Appellant,

v.

Craig A. Hanks,

Respondent-Appellee.


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.


Argued January 19, 1999--Decided June 22, 2000


  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,
Finfrock was granted permission to
proceed IFP, but he was instructed to re-
file the action as five separate cases,
one per violation. Each case was
ultimately dismissed, and Finfrock filed
timely notices of appeal. In each case,
the presiding district judge denied a
certificate of appealability (CA), which
is required for appeals in certain
collateral relief cases. See 28 U.S.C.
sec. 2253(c). The presiding district
judge in each case also denied Finfrock
IFP treatment on appeal, both because
Finfrock has accumulated three "strikes"
under 28 U.S.C. sec. 1915(g) and because
his appeal was taken in bad faith.
Finfrock wants to argue to this court
that the dismissals were incorrect,
because he was denied certain hearing
rights, the evidence was insufficient on
some charges, he was denied a competent
lay advocate, and so on. Before we can
reach these claims, however, we must
address two questions: (1) whether the
PLRA filing fee provisions apply to
Finfrock’s cases, and (2) whether
Finfrock must obtain a CA to pursue his
appeals.

II

  Two preliminary questions require some
attention before we turn to the PLRA
issues. First, in each of Walker’s and
Finfrock’s cases the respective district
courts concluded that the appeal was not
taken in good faith. See 28 U.S.C. sec.
1915(a)(3). We must decide whether, in
light of those determinations, Walker or
Finfrock is still entitled to attack the
decisions of the district courts that the
PLRA applies to a prisoner pursuing
collateral relief. Second, there is a
question whether state prisoners (such as
Finfrock), like their federal
counterparts (such as Walker), should be
filing habeas corpus petitions that do
not challenge their convictions or
sentences under sec. 2241, rather than
sec. 2254. The answer has implications
for the need to acquire a certificate of
appealability, as well as for the process
of characterizing sec. 2241 actions for
PLRA purposes.


  A.   Bad Faith
  It is easiest to begin with the worst
case scenario and work backwards. If
neither appeal were taken in good faith,
then this fact would independently
preclude Walker and Finfrock from
proceeding IFP regardless of whether the
PLRA applied and they would be obligated
to pay the full filing fee immediately.
See 28 U.S.C. sec. 1915(a)(3); Celske v.
Edwards, supra, 164 F.3d at 397. A
prisoner litigant is entitled to contest
the district court’s finding of a lack of
good faith by filing a motion in the
court of appeals under Fed. R. App. P.
24(a)(5) to proceed IFP on appeal, before
paying any part of the docket and filing
fees. Celske, 164 F.3d at 398. When faced
with such a motion, the statute requires
us to determine whether the appeal is
frivolous or otherwise in bad faith. See
Lee v. Clinton, 209 F.3d 1025 (7th Cir.
2000).

  By deciding to pay the filing fee in No.
96-4010 and proceed with the appeal,
Walker has forfeited his right to
challenge the district court’s good faith
determination in that case. Walker
preserved his right to assert such
achallenge in No. 98-1328, but the
district court’s determination is
unimpeachable as Walker’s appeal from the
district court’s denial of his utterly
meritless post-judgment motions is
indisputably frivolous. Accordingly,
Walker is independently barred from
proceeding IFP in the present appeals.

  Finfrock, on the other hand, has good
grounds on which to challenge the good
faith determinations in his cases. In
each one, the respective district courts
found that an appeal would not be in good
faith because no certificate of
appealability had been issued. This
reason is not enough to explain why the
appeal on the merits would not be in good
faith, because the standard governing the
issuance of a certificate of
appealability is not the same as the
standard for determining whether an
appeal is in good faith. It is more
demanding. Moore v. Pemberton, 110 F.3d
22, 24 (7th Cir. 1997). See also Barefoot
v. Estelle, 463 U.S. 880, 893 (1983)
(noting that the standard for obtaining a
certificate of probable cause, the
predecessor to the certificate of
appealability, is higher than the one
used to evaluate good faith under 28
U.S.C. sec. 1915); Pate v. Stevens, 163
F.3d 437, 439 (7th Cir. 1998) (citing
Barefoot and warning district courts not
to apply an inappropriately high standard
in making good faith determinations). To
issue a certificate of appealability, a
court must find that the petitioner has
made "a substantial showing of the denial
of a constitutional right." 28 U.S.C.
sec. 2253(c)(2); Williams v. Parke, 133
F.3d 971, 975 (7th Cir. 1997). In
contrast, to determine that an appeal is
in good faith, a court need only find
that a reasonable person could suppose
that the appeal has some merit. Lee, 209
F.3d at 1026. By conflating the standard
for issuing a certificate of
appealability and the standard for
determining whether an appeal is in good
faith, the district courts in Finfrock’s
cases erred in determining that his
appeals were not in good faith. Thus, the
question whether his cases belong under
the PLRA is properly before us.

  But what about Walker? That Walker is
not eligible for IFP status regardless of
whether the PLRA applies raises the
question whether he may challenge the
applicability of the PLRA to his habeas
corpus action. If the only thing the PLRA
did was establish a system for the
payment of docketing fees, then we would
be compelled to find that he could not
bring such a challenge.

  The PLRA, however, does more than this.
It also establishes a bar for future
entitlement to IFP treatment in the so-
called "three strikes" rule of 28 U.S.C.
sec. 1915(g). The bar applies to
prisoners who, while incarcerated, have,
on at least three prior occasions,
"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 on
which relief may be granted." If the
present actions Walker has filed belong
under the PLRA, then he risks
accumulating not one but two "strikes"
for purposes of sec. 1915(g), because we
have held that the filing of a complaint
and the pursuit of an appeal count as
separate "strikes" for this purpose.
Newlin, 123 F.3d at 433. Even though
Walker did not spell out this particular
consequence of the PLRA until his reply
brief, we are satisfied that his argument
in the opening brief that the PLRA in its
entirety does not apply to habeas corpus
actions was sufficient to present the
point to this court. Furthermore, we
conclude that the detriment he would
suffer if he accumulated one or two
"strikes" is enough to entitle him to
continue with the present action.
(Although no one has raised the point, we
note also that the district court never
assessed the $5 district court filing fee
for the sec. 2241 action under the PLRA’s
mandatory payment requirement, see sec.
1915(b)(1). The court did not assess the
fee because the case was dismissed prior
to service. If, however, the PLRA applied
to the case, then this ruling was
incorrect. See Hains v. Washington, 131
F.3d 1248, 1250 (7th Cir. 1997) (filing
fees must be paid even when a case is
dismissed under sec. 1915A). This means
there is another concrete consequence for
Walker from the outcome of this appeal:
if the PLRA applies, then Walker owes $5
to the district court; if it does not and
he was otherwise entitled at the district
court stage to IFP status, he does not.)


  B. Section 2241 or Section 2254?

  The second preliminary question we must
address is whether the system governing
writs of habeas corpus pertaining to
prison disciplinary decisions must be the
same for state and federal prisoners, or
if differences in the applicable laws
lead to somewhat different procedures.
Congress enacted 28 U.S.C. sec. 2255 to
be the vehicle for collateral attacks on
convictions and sentences for federal
prisoners. See, e.g., United States v.
Hayman, 342 U.S. 205 (1952) (discussing
sec. 2255); Valona v. United States,
supra, 138 F.3d at 694 (distinguishing
sec. 2255 and sec. 2241 actions). The
specific focus of the statutory language
on the original judgment and sentence had
led courts to find that challenges
brought by federal prisoners that
implicate the fact or duration of
confinement but do not stem from the
original conviction or sentence can be
brought only under 28 U.S.C. sec. 2241,
the general habeas corpus statute. See,
e.g., Valona, 138 F.3d at 694. In
contrast to sec. 2255, the language of
sec. 2254, the statute entitling state
prisoners to seek federal habeas corpus
relief, is considerably broader. Section
2254 refers generally to an application
"in behalf of a person in custody
pursuant to the judgment of a State court
. . . on the ground that he is in custody
in violation of the Constitution or laws
or treaties of the United States." 28
U.S.C. sec. 2254(a). The focus is on the
fact of custody, not necessarily on flaws
in the underlying judgment or sentence
that brought the person there (though
allegations of those kinds of problems
can and do support a petition under sec.
2254).

  In our view, the difference in language
between sec. 2255 and sec. 2254, coupled
with the Supreme Court’s guidance in
Felker v. Turpin, 518 U.S. 651 (1996),
leads to a different path for federal and
state prisoners. A state prisoner, like
Finfrock, has available a statute that in
effect implements the general grant of
habeas corpus authority found in sec.
2241, as long as the person is in custody
pursuant to the judgment of a state
court, and not in state custody for some
other reason, such as pre-conviction
custody, custody awaiting extradition, or
other forms of custody that are possible
without a conviction. In the latter
cases, the Great Writ protected by the
Constitution, Article I, Section 9,
Clause 2, and sec. 2241 (to the extent
these may be different) remain available.
Even though sec. 2254 does not contain
exclusivity language along the lines of
sec. 2244(a) and sec. 2255 para. 5 (which
together make it clear that a federal
prisoner who wishes to challenge the
legality of his or her conviction or
sentence can proceed only under sec.
2255), as a practical matter the
requirements of sec. 2254 must be met by
all state prisoners filing petitions for
writs of habeas corpus after conviction.
As the Supreme Court put it in Felker, a
court’s "authority to grant habeas relief
to state prisoners is limited by sec.
2254, which specifies the conditions
under which such relief may be granted to
’a person in custody pursuant to the
judgment of a State court.’" 518 U.S. at
662. The Felker decision observed that
certain requirements of sec. 2254 and
related laws, such as the need to obtain
the approval of the court of appeals
before filing a successive application in
the district court, see 28 U.S.C. sec.
2244(b)(3)(A), did not apply to
collateral attacks begun in the Supreme
Court. But those kinds of qualifications
to one side, Felker leads to the
conclusion that when a prisoner begins in
the district court, sec. 2254 and all
associated statutory requirements apply
no matter what statutory label the
prisoner has given the case. (Roughly
speaking, this makes sec. 2254 the
exclusive vehicle for prisoners in
custody pursuant to a state court
judgment who wish to challenge anything
affecting that custody, because it makes
clear that bringing an action under sec.
2241 will not permit the prisoner to
evade the requirements of sec. 2254.)
Indeed, we have held in numerous cases
that sec. 2254 was the correct vehicle
for contesting loss of good time credit
in prison disciplinary proceedings, and
we adhere to those decisions today. E.g.,
McPherson v. McBride, 188 F.3d 784 (7th
Cir. 1999); Meeks v. McBride, 81 F.3d 717
(7th Cir. 1996). That is what Finfrock
did in his case, and we agree that this
was the correct route to follow.

III

  We come then to the central question
before us: whether the requirements of
the PLRA apply to a habeas corpus action
filed by a federal prisoner under sec.
2241 or by a state prisoner under sec.
2254 that is not related to the
underlying criminal judgment or sentence-
-that is not, as Newlin put it, a
functional continuation of the criminal
prosecution. For the reasons that follow,
we conclude that cases properly brought
under sec.sec. 2241 or 2254 as habeas
corpus petitions are not subject to the
PLRA. In so doing, we bring this circuit
into line with all of our sister circuits
who have ruled on the matter. See, in
particular, Davis v. Fechtel, supra, 150
F.3d at 488-90; McIntosh v. United States
Parole Commission, supra, 115 F.3d at
811-12; and Blair-Bey v. Quick, supra,
151 F.3d at 1039-41. We take this action
not simply for the sake of ending our
status as an outlier; conformity for its
own sake is neither necessary nor
desirable for the courts of appeals,
because differences in opinion have the
effect of ventilating important legal
questions and creating a background
against which the Supreme Court can
ultimately resolve an issue for the
country as a whole. Still, we respect the
views of our sister circuits, and we
always proceed carefully when we find
ourselves about to create a conflict in
the circuits. That is the purpose of
Seventh Circuit Local Rule 40(e), under
which the court does not create a new
conflict without consulting all active
judges. The same approach is in order
when a persistent conflict among the
circuits exists, and we find ourselves in
a minority of one. In the present case,
experience across the country since
Newlin was decided has convinced us that
the distinction proposed in Newlin,
between habeas corpus petitions that
relate to the original criminal
prosecution and those that do not, for
purposes of the PLRA, is not consistent
with the Supreme Court’s decisions in
this area, is in tension with the
distinct statutory systems Congress has
created for habeas corpus actions and
other civil actions, and is confusing for
the district courts to administer. We
therefore hold that if a case is properly
filed as an action under 28 U.S.C.
sec.sec. 2241, 2254, or 2255, it is not a
"civil action" to which the PLRA
applies./4

  In coming to this conclusion, we begin
with the Supreme Court’s 1973 decision in
Preiser v. Rodriguez, supra, which
remains the leading case establishing the
proposition that prisoners may not bring
civil rights actions in federal court to
challenge the fact or duration of their
confinement. The underlying facts of the
case are especially instructive for our
situation. It involved claims brought by
three different state prisoners, each of
whom was deprived of good-conduct-time
credits by the New York State Department
of Correctional Services. Respondent
Rodriguez was serving a sentence for
perjury and attempted larceny. While in
prison, he was charged in two separate
disciplinary action reports with
possession of contraband material in his
cell; after a hearing, he was punished
with the cancellation of 120 days’ good-
conduct-time credits. 411 U.S. at 477-78.
Respondent Katzoff was imprisoned after
being convicted of possession of a
dangerous weapon. He was disciplined for
making derogatory comments about prison
officials in his diary, and was punished
with the deprivation of 30 days’ good-
conduct time (in addition to being
required to serve 57 days in segregation,
which indirectly led to the loss of
another 20 days’ good-conduct time). Id.
at 480. As the Supreme Court noted,
respondent Kritsky’s case was similar. He
was serving a state court sentence for
armed robbery, and while in prison, he
was charged with being a leader in a
prison-wide protest demonstration and
with advocating insurrection during that
demonstration. For this, the warden
punished him with the loss of 545 days’
good-conduct-time credits and confined
him in segregation for four-and-a-half
months, which led to the loss of another
45 days’ good-conduct time. Id. at 481.

  Against this factual backdrop, the en
banc Second Circuit held that the
prisoner complaints could be heard either
as habeas corpus petitions or under the
Civil Rights Act. Id. at 482. The Supreme
Court granted certiorari in order, as it
said,

to consider the bearing of the Wilwording
[v. Swenson, 404 U.S. 249 (1971)]
decision upon the situation before us--
where state prisoners have challenged the
actual duration of their confinement on
the ground that they have been
unconstitutionally deprived of good-
conduct-time credits, and where
restoration of those credits would result
in their immediate release from prison or
in shortening the length of their
confinement.

Id. The Court conducted a thorough
examination of the writ of habeas corpus,
and more particularly of sec.sec. 2241
and 2254. In so doing, it noted that "the
use of habeas corpus to secure release
from unlawful physical confinement,
whether judicially imposed or not, was
thus [by the time of the independence of
the American colonies] an integral part
of our common-law heritage." Id. at 485
(emphasis added). In its discussion, the
Court equated challenges on the ground
that the statute under which the prisoner
was convicted was unconstitutional, that
trial was held on a defective indictment,
that the person was confined in the wrong
institution, that he was denied
constitutional rights at trial, that his
guilty plea was invalid, that he is being
unlawfully detained by the Executive or
the military, and that parole was
unlawfully revoked. Id. at 486. It
concluded by holding that "the
respondents’ suits in the District Court
fell squarely within this traditional
scope of habeas corpus." Id. at 487. Lest
there be any question, the Court
underscored the fact that habeas corpus
was the sole vehicle available to the
prisoners, whether restoration of the
good-conduct-time credits would result in
immediate release or would only shorten
the length of their confinement. Id.

  Preiser, therefore, drew no distinction
between habeas corpus petitions that were
based on flaws in the original criminal
prosecution and those that were based on
claims relating to prison discipline. To
the contrary, the Court went out of its
way to stress that all claims relating to
the fact or duration of confinement fell
within the proper scope of the habeas
corpus statutes. The Court’s more recent
decision in Edwards v. Balisok, supra,
reinforces this point.

  In Balisok, the Court considered the
question whether the rule of Heck v.
Humphrey, 512 U.S. 477 (1994), under
which a state prisoner’s claim for
damages is not cognizable under 42 U.S.C.
sec. 1983 if a judgment in favor of the
plaintiff would necessarily imply the
invalidity of his criminal conviction or
sentence, should be extended to claims
for damages brought by prisoners who were
challenging the validity of the
procedures used to deprive them of good-
time credits. 520 U.S. at 643. Balisok
sued under sec. 1983 after he was found
guilty of four infractions of prison
rules and sentenced to 10 days in
isolation, 20 days in segregation, and
the loss of 30 days’ good-time credits.
Id. at 643-44. Taking Preiser into
account, Balisok was careful not to
request restoration of his good-time
credits; he asked instead only for a
declaration that the procedures used by
the state officials violated due process,
for damages, and for an injunction
preventing future violations.
Notwithstanding those limitations, the
Supreme Court held that the Heck rule
applied to his case. It observed that the
principal procedural defect about which
Balisok was complaining-- that he was
denied the opportunity to present
witnesses who possessed exculpatory
evidence--would, if proven, necessarily
imply the invalidity of the deprivation
of good-time credits. Id. at 646-47.
There is not a hint in the Court’s
opinion that Balisok’s habeas corpus
action would call for different treatment
from the comparable actions brought under
Heck; quite to the contrary, the entire
thrust of the opinion is that there is no
legally important difference between the
two uses of habeas corpus.

  The Newlin opinion did not consider the
effect of Preiser on the rule it adopted.
Instead, it cited only the Court’s
decision in United States v. Addonizio,
442 U.S. 178 (1979), for the proposition
that "[c]omplaints about denial of
parole, revocation of parole, and the
like, do not affect the validity of the
criminal sentence, and this litigation
therefore cannot be called a functional
continuation of the criminal
prosecution." 123 F.3d at 438. Addonizio,
however, held only that allegations by
three federal prisoners that a
postsentencing change in the policies of
the United States Parole Commission,
which had prolonged their actual
imprisonment beyond the period intended
by the sentencing judge, would not
support a collateral attack on the
original sentence under 28 U.S.C. sec.
2255. It explained its ruling as follows:

  The claimed error here--that the judge
was incorrect in his assumptions about
the future course of parole proceedings--
does not meet any of the established
standards of collateral attack. There is
no claim of a constitutional violation;
the sentence imposed was within the
statutory limits; and the proceeding was
not infected with any error of fact or
law of the "fundamental" character that
renders the entire proceeding irregular
and invalid.

442 U.S. at 186. Bearing in mind that
sec. 2255 is available to federal
prisoners only for attacks on the
underlying conviction and sentence, see
United States v. Hayman, supra, and that
the Addonizio Court said nothing about
the prospects for an action under sec.
2241, at the most Addonizio reaffirms
certain limits on the use of sec. 2255.
Finally, to the extent the Newlin
decision legitimately inferred from
Addonizio a recognition by the Supreme
Court that attacks on the original
conviction and sentence are different
from those on parole proceedings, we
think that the Supreme Court’s later
decision in Balisok made it clear that
Addonizio did not go that far, and that
the Preiser rule establishing uniform
habeas corpus rules for all challenges to
the fact or duration of confinement
remained the law.

  We see no need to lengthen this opinion
by reviewing in detail the reasons that
our nine sister circuits have given for
coming to the conclusion that the PLRA
does not apply to petitions for a writ of
habeas corpus and other collateral
relief. Briefly, however, the analysis is
as follows. Even though habeas corpus
petitions are technically "civil
actions," if one is compelled to divide
the universe of cases into only the two
categories of civil and criminal, both we
and our sister circuits have recognized
the reality that habeas corpus petitions
are a group unto themselves. See, e.g.,
Martin v. United States, 96 F.3d 853, 855
(7th Cir. 1996) ("habeas corpus is more
accurately regarded as being sui
generis"); Blair-Bey, 151 F.3d at 1040;
Smith v. Angelone, supra, 111 F.3d at
1129-30. The precise question of
statutory construction is therefore
whether habeas corpus petitions were
considered by Congress to be the kind of
"civil action" to which the provisions of
the PLRA should apply. Even under the
rule of Newlin, the answer was not a
clear-cut "yes." Instead, according to
Newlin, habeas corpus petitions that
related to the original criminal proceed
ing were not "civil actions," and
petitions that were independent of that
proceeding were. But the petition itself,
under Preiser and Balisok, is the same
animal, regardless of the grounds the
detained person is advancing in it. In
addition, other courts have reviewed
carefully the legislative history of both
the PLRA and AEDPA and have concluded
that it supports a clear line between
civil actions attacking conditions of
confinement (subject to the PLRA) and
habeas corpus petitions attacking the
fact or duration of confinement (subject
to the rules governing habeas corpus).
See, e.g., Blair-Bey, 151 F.3d at 1040-
41; Reyes v. Keane, supra, 90 F.3d at
678; Smith, 111 F.3d at 1130-31; Martin
v. Bissonette, supra, 118 F.3d at 874.
Finally, as the District of Columbia
Circuit commented in Blair-Bey, "Treating
one subset of habeas petitions as ’civil
actions’ for PLRA purposes would also
have the effect of subjecting those
petitions to two separate regimes
designed to deter repeat plaintiffs--with
anomalous results, given the nature of
the two regimes." 151 F.3d at 1041. For
instance, that court pointed out, AEDPA
handles the problem of repeat filers
through the requirement that inmates
seeking to file second or successive
petitions for a writ of habeas corpus
must obtain the permission of the court
of appeals, in 28 U.S.C. sec. 2244. The
PLRA, in contrast, handles the problem of
repetitive filers through the "three
strikes" rule discussed earlier in this
opinion. See 28 U.S.C. sec. 1915(g). To
summarize, the unique status of habeas
corpus petitions, the legislative history
of the PLRA and AEDPA, and the
administrative problems of attempting to
apply both regimes to the same set of
cases all point in the direction of the
conclusion we reach here.

IV

  We must also decide whether the
requirement of a certificate of
appealability applies to habeas corpus
actions based on prison disciplinary
proceedings filed by state prisoners
(like Finfrock) under 28 U.S.C. sec.
2254. The district judges considering
Finfrock’s cases assumed that it did, and
they each denied CAs in the cases before
them. That assumption, however, requires
examination.

  The literal language of 28 U.S.C. sec.
2253(c)(1)(A) would lead to the
conclusion that the requirement does not
apply, because the statute expressly
imposes the CA requirement on appeals
where the challenged detention "arises
out of process issued by a State court."
When a prisoner loses good-time credits
after a prison disciplinary proceeding,
the resulting detention does not arise
out of process issued by a state court.
In Sylvester v. Hanks, 140 F.3d 713 (7th
Cir. 1998), this court flagged the
question whether the CA requirement
applied in these circumstances, but did
not resolve it. Id. at 714. In other
decisions, courts have assumed without
further analysis that the CA requirement
does apply. See, e.g., Post v. Gilmore,
111 F.3d 556 (7th Cir. 1997) (per
curiam); Hogan v. Zavaras, 93 F.3d 711
(10th Cir. 1996).
  In light of the statutory language, we
do not see how we can construe the words
"process issued by a State court" to mean
"process not issued by a State court, but
instead the outcome of an internal prison
disciplinary proceeding." It is
indisputable that prison disciplinary
proceedings are far more informal than
court proceedings; rules of evidence do
not apply in the former; evidentiary
standards are looser; and in general
(undoubtedly for good reasons) they
operate more flexibly. We note as well
that states differ in the extent to which
the results of prison disciplinary
proceedings may be reviewable in the
state courts. In some states, a prisoner
challenging a disciplinary sanction may
seek recourse in state court after he or
she has exhausted available
administrative remedies. For two methods,
see Peckham v. Krenke, 601 N.W.2d 287
(Wis. Ct. App. 1999) (certiorari review
available), and South v. Franzen, 413
N.E.2d 523 (Ill. App. Ct. 1980) (habeas
corpus review available). In others, like
Indiana, the administrative proceeding is
the end of the line. See Hasty v.
Broglin, 531 N.E.2d 200 (Ind. 1988) (no
judicial review available). In those
states in which review is possible, it is
far from plenary. See Peckham, 601 N.W.2d
at 290 (factual determinations are
conclusive if supported by "any
reasonable view of the evidence"); South,
413 N.E.2d at 525 (judicial review is
deferential and limited to determining
whether a prisoner’s constitutional
rights have been violated). The
possibility of limited judicial review
does not, in our view, convert the
prisoner’s administrative detention into
something that arises from process issued
by the state court. Rather, it arises
from the prison disciplinary proceeding
and receives limited review by the state
court. In states like Indiana, the state
court never becomes involved at all.

  There is good reason to accord greater
finality to state court proceedings,
where the full range of procedural
protections for a defendant apply, than
to prison disciplinary proceedings. And
even if there would be equally compelling
reasons to write the statute to cover
both detentions arising from process
issued by a state court and process
issued in connection with an internal
prison disciplinary proceeding, this is
not what Congress did. If it was an
oversight, it is one that can easily be
corrected in amendatory legislation. But
until then, we see no statutory
authorization for imposing the CA
requirement on appeals in which the
complained of detention does not arise
from process issued by a state court. We
note that this conclusion does no more
than maintain a certain consistency
between the procedures applicable to
state prisoners and those applicable to
federal prisoners, because it is now well
established that the CA requirement does
not apply to appeals in sec. 2241 cases.
Bush v. Pitzer, 133 F.3d 455, 456 (7th
Cir. 1997); Murphy v. United States, 199
F.3d 599, 601 n.2 (2d Cir. 1999) (listing
cases). Administration of this rule will
be straightforward for the district
courts: they need only ascertain the
source of the detention (state court
process or something else), and the need
or not for a CA will be apparent./5 We
therefore hold that Finfrock may proceed
with his appeals despite the district
courts’ decisions to deny the CAs.

  In so holding, we recognize that the
regime governing certificates of
appealability will reflect precisely the
distinction between actions relating to
the original criminal proceeding and
those relating to disciplinary
proceedings (or other sources of
detention) that we have rejected in Part
III of this opinion for purposes of the
PLRA. We believe that any tension that
may result between the two holdings is,
however, more apparent than real. In Part
III we addressed the question whether
habeas corpus actions should or should
not be considered as "civil actions" and
thus come under the gate-keeping rules of
the PLRA. We decided that Supreme Court
precedents, the nature of the special
gate-keeping rules that Congress has
established for habeas corpus actions,
the reasoning of our sister circuits, and
the desirability of eliminating a
conflict on such a technical matter all
lead to the conclusion that for this
purpose no distinction should be drawn
between different types of habeas corpus
actions.

 Part IV turned to the internal
management of habeas corpus actions. On
the federal side, as we noted, different
statutes govern challenges to a
prisoner’s original conviction and other
challenges to custody: 28 U.S.C. sec.
2255 for the former, 28 U.S.C. sec. 2241
for the latter. For these cases, Congress
has stipulated that the CA requirement
applies only to sec. 2255 cases. For
state prisoners, the governing law is
sec. 2254. We have concluded that the
plain language of 28 U.S.C. sec.
2253(c)(1)(A) requires us to follow rules
for CAs in sec. 2254 cases that mirror
the rules applicable to federal
prisoners. This should not be difficult
for the district courts to administer,
particularly given the experience they
already have in distinguishing between
sec. 2255 and sec. 2241 cases.
Furthermore, the fact that the source of
detention matters for the internal
management of habeas corpus actions does
not compel the conclusion (in the face of
the precedents we have discussed in Part
III) that the source of detention matters
when we are deciding whether habeas
corpus actions in general are the kind of
"civil action" addressed by the PLRA. As
we noted before, this is nothing but a
conclusion on our part about the way
various statutes should be interpreted.
It is therefore amenable to legislative
adjustment or correction, if Congress
believes a different or better system
should be implemented. At present,
however, it is the system we have and the
one the courts must follow.
V

  Before setting forth our dispositions of
the two cases before us, we summarize
briefly the holdings in this case, in the
hopes that this will assist both the
district courts and counsel in their
administration of this complex area of
the law. In Part II of this opinion, we
conclude that state prisoners who are
challenging the results of prison
disciplinary proceedings must proceed
under 28 U.S.C. sec. 2254, not 28 U.S.C.
sec. 2241./6 Part III of this opinion
holds that the requirements of the PLRA
do not apply to properly characterized
habeas corpus actions, whether they are
brought under sec.sec. 2241, 2254, or
2255, because those actions are not
"civil actions" within the meaning of the
PLRA. Last, Part IV holds that the
requirement of a CA imposed by 28 U.S.C.
sec. 2253(c)(1)(A) does not apply to a
state prisoner’s action under sec. 2254
that challenges the result of a prison
disciplinary hearing, because the
specific (additional) detention that is
the focus of such a challenge does not
arise out of "process issued by a State
court." With these principles in mind, we
turn once again to the two cases on
appeal.

A.   Walker v. O’Brien

  In Walker’s two cases, the dispute about
the underlying merits of his obligation
to pay for the damaged door has been
resolved and he no longer challenges any
other aspects of the district court’s
rulings. However, the dispute over his
obligation to make payments to the court
remained to be determined here, and we
have concluded that the PLRA does not
apply to his cases. This conclusion means
that neither the initial filing of this
action nor the filing of the appeals may
count as a "strike" for purposes of sec.
1915(g). Nevertheless, both our
conclusion about the right of the court
to insist on some payment of fees wholly
apart from the PLRA, and Walker’s own
failure, in No. 96-4010, properly to
contest the district court’s finding of a
lack of good faith means that his request
for a refund of the $105 he paid in that
appeal must be rejected. Our finding that
the PLRA does not apply also means that
neither this court nor the district court
is required to take steps to collect the
filing fees Walker has not paid. Now that
all outstanding issues in Walker’s cases
have been resolved, the appeals in Nos.
96-4010 and 98-1328 are DISMISSED.


  B. Finfrock v. Hanks
  In Finfrock’s five cases, the fact that
the PLRA does not apply means that
Finfrock is entitled to seek IFP status
despite having three "strikes" under 28
U.S.C. sec. 1915(g), and that if IFP is
granted he will not be subject to the
PLRA’s fee assessment and collection
mechanism. Moreover, in light of our
conclusion that the CA requirement does
not apply to habeas corpus actions
challenging prison disciplinary
decisions, Finfrock may pursue appeals in
his cases without obtaining a CA. Because
the district courts in Finfrock’s cases
applied the wrong standard in determining
whether his appeals were taken in good
faith, however, cases No. 97-3792, 97-
3797, 97-3798, 97-3799, and 97-3800 are
REMANDED to those courts so that they can
apply the correct standard and make an
initial decision whether Finfrock may
proceed IFP on appeal.



/1 Both Newlin and Thurman addressed many other
questions pertaining especially to the PLRA. As
we explain in more detail below, this opinion is
limited to the single aspect before us in these
cases.

/2 In a stipulation filed with this court on
November 19, 1998, the parties agreed that the
Bureau of Prisons has adjusted the amount due
from $1245 to $593. The lower number reflects the
actual cost the government incurred in repairing
the door. Walker has been making payments against
this debt through deductions from his prison
account.

/3 We doubt seriously that Finfrock is entitled to
pursue No. 97-3800, the one appeal that does not
involve a punishment affecting the length of his
custody, but rather involves a punishment
affecting only the place of his confinement
(segregation vs. general population). First, it
is questionable whether habeas corpus is the
appropriate procedure for challenging this sort
of punishment. See Sylvester v. Hanks, 140 F.3d
713, 714 (7th Cir. 1998). Second, under Sandin v.
Conner, 515 U.S. 472, 483-87 (1995), it is
unlikely that Finfrock has a protectible liberty
interest in avoiding segregation, a requirement
for any due process claim. See Wagner v. Hanks,
128 F.3d 1173, 1177 (7th Cir. 1997).
Nevertheless, since these issues have yet to be
briefed, we only mention them here.

/4 We emphasize that the action must be a proper
habeas corpus action. Our ruling is not intended
in any way to suggest that the district courts
should not look beyond the label the petitioner
attaches to his pleading to ensure that the
proper procedural regime is followed. See
generally Pischke v. Litscher, 178 F.3d 497, 500
(7th Cir. 1999) (discussing when habeas corpus is
appropriate and whether a mislabeled action
should be converted or dismissed).

/5 Likewise, the clerk of the district court, who
administers the collection of filing fees, is
directed to stop using the procedure outlined in
28 U.S.C. sec. 1915(b)(2) to collect unpaid
portions of filing fees owed by prisoners in
habeas corpus actions. Requests by prisoners for
refunds of their appellate fees, however, will
not be entertained since "every litigant has the
legal responsibility to pay the filing and
docketing fees to the extent feasible." Longbehn
v. United States, 169 F.3d 1082, 1083 (7th Cir.
1999). A court has it within its discretion to
insist that litigants proceeding IFP in non-PLRA
cases must nonetheless pay a fee commensurate
with their ability to do so. Id. at 1083-84. And
it seems to us clear that, by definition, a
prisoner was able to pay anything that he or she
has already paid.

/6 We recognize that this conclusion might be
thought to conflict with the decision of the
Tenth Circuit in Montez v. McKinna, 208 F.3d 862
(10th Cir. 2000). The Montez court held that
state prisoners who are challenging the execution
of their sentence must use 28 U.S.C. sec. 2241,
in the context of a challenge to a decision by
Wyoming prison authorities to move the plaintiff
from a state operated prison in Wyoming to a
privately operated facility in Texas and from the
Texas facility to a private Colorado facility. It
also held that state prisoners were required to
obtain a CA in order to appeal such a case. That
decision, of course, dealt directly with the way
the state authorities chose to implement a
particular sentence, rather than with the
adjudication of a particular dispute that
affected the length of incarceration. Montez
therefore may be distinguishable in any event
from our case, but we note the potential conflict
because of the breadth of some of the language
the court used.




 Easterbrook, Circuit Judge, with whom Posner,
Chief Judge, and Manion, Circuit Judge, join,
dissenting from the denial of rehearing en banc.
The panel announces two important decisions: that
collateral attacks on prison discipline are not
"civil actions" for the purpose of the Prison
Litigation Reform Act (Part iii); and that state
prisoners who want to appeal adverse decisions in
cases about good-time credits do not need
certificates of appealability, despite 28 U.S.C.
sec.2253(c), part of the Antiterrorism and
Effective Death Penalty Act (Part iv). We should
consider these issues en banc, for several
reasons.

The panel has established ground rules
for a substantial body of prisoners’
suits, easily more than a hundred
annually in this circuit.

The issues are important qualitatively
as well as quantitatively. When must
prisoners pay to litigate? May
decisions rejecting frivolous
collateral attacks be appealed as of
right?

Part iii of the panel’s opinion
overrules Part iii of Newlin v. Helman,
123 F.3d 429, 437-38 (7th Cir. 1997),
while Part iv creates a conflict among
the circuits.

The panel’s opinion is internally
contradictory. (i) Part ii.b holds that
collateral attacks about good-time
credits concern "a person in custody
pursuant to the judgment of a State
court" (sec.2254(a)), yet Part iv holds
that these same collateral attacks do
not concern a "proceeding in which the
detention complained of arises out of
process issued by a State court"
(sec.2253(c)(1)(A)). (ii) Part iii is
justified in large measure by the
desirability of eliminating a conflict
among the circuits, yet Part iv creates
a new conflict. (iii) The panel asserts
in Part iii that it is too difficult to
distinguish between collateral attacks
on convictions and collateral attacks
on prison discipline when assessing
fees, yet Part iv draws exactly this
line for purposes of certificates of
appealability. (iv) Part iv invokes a
plain-meaning approach to
interpretation, while Part iii disdains
the statutory text.

Both of the panel’s principal holdings
are substantively questionable, for
reasons that I now set out.

  Part III holds that the plra’s fee-collection
mechanism (indeed, the whole plra) does not apply
to any application for collateral relief. The
critical text is 28 U.S.C. sec.1915(b) (1), which
says that "if a prisoner brings a civil action or
files an appeal in forma pauperis" then part of
the filing fee must be prepaid, and the rest must
be collected over time from prison trust
accounts. Other features of the plra also apply
only to "civil actions." Is a petition for a writ
of habeas corpus a "civil action"? We have been
told authoritatively that the answer is "yes."
Browder v. Director, Department of Corrections,
434 U.S. 257, 269 (1978); United States v.
Morgan, 346 U.S. 502, 505 & n.4 (1954). Is an
appeal from the denial of a petition for
collateral relief an "appeal in forma pauperis"?
Surely yes, when the prisoner seeks to proceed in
forma pauperis. What could an appeal in forma
pauperis be, other than "an appeal in forma
pauperis"?

  Collateral attacks are civil actions. Browder
holds this (the Court wrote that "[i]t is well
settled that habeas corpus is a civil
proceeding"), and if that were not enough 28
U.S.C. sec.1914(a) demonstrates it: "The clerk of
each district court shall require the parties
instituting any civil action, suit or proceeding
in such court, whether by original process,
removal or otherwise, to pay a filing fee of
$150, except that on application for a writ of
habeas corpus the filing fee shall be $5." Prison
discipline and ensuing collateral attacks are not
criminal prosecutions, so they must be "civil
actions." See Wolff v. McDonnell, 418 U.S. 539,
556 (1974) (remarking, in a case involving good-
time credits, that "[p]rison disciplinary
proceedings are not part of a criminal
prosecution"); Baxter v. Palmigiano, 425 U.S. 308
(1976). If we define the phrase "civil action" in
sec.1915(b) the way Congress did in sec.1914(a),
a statute treating collateral attacks as a subset
of all civil actions, then application of the
plra follows directly.

  Lawsuits arising out of prison discipline are a
principal target of the plra. Should it make any
difference for this purpose whether a warden
revokes 30 days of good-time credits or puts the
prisoner in segregation for six months (which
also may prevent the prisoner from earning new
good-time credits)? Not under the language of
sec.1915(b), and not for functional purposes
either, yet under Part iii of the panel’s opinion
the warden’s choice of sanction determines
whether the prisoner must prepay partial filing
fees and whether prior frivolous suits require
prepayment of the full filing fees, as
sec.1915(g) requires. (Because sec.1915(g) treats
any frivolous proceeding as a "strike," I take it
that even under the panel’s approach three
frivolous collateral attacks would require
prepayment of the filing fees in any future
"civil action or appeal [of] a judgment in a
civil action".)

  Part iii of the panel’s opinion does not take
the language of sec.1915(b) seriously; it
mentions the phrase "civil action" only in
passing and the phrase "appeal in forma pauperis"
not at all. The panel conceives the issue as
whether a collateral attack arising out of the
deprivation of good-time credits differs, for
purposes of sec.2254, from a collateral attack
arising out of a conviction or sentence. Relying
on cases such as Preiser and Balisok, the panel
answers "no." I agree with that answer--but it is
an answer to an irrelevant question, for we must
decipher the meaning of "civil action" in
sec.1915(b) rather than the nature of actions
under sec.2254. Nothing in Preiser or Balisok
concerns the meaning of "civil action . . . in
forma pauperis" or "appeal in forma pauperis" in
sec.1915(b); we have to define these ourselves
rather than attribute a definition to cases
concerning other issues.

  To understand why Part iii of Newlin held that
collateral attacks on prison discipline are
"civil actions" under sec.1915(b), one must begin
with Martin v. United States, 96 F.3d 853 (7th
Cir. 1996). Martin allowed that petitions for
habeas corpus "are technically civil proceedings
and so come within the literal scope of the Act."
96 F.3d at 855. But Martin also observed that
changes made by the aedpa contemporaneously with
the plra subject applications for writs of habeas
corpus to a special regimen. For example, under
the plra three frivolous suits block further
civil filings and appeals in forma pauperis,
sec.1915(g), while the aedpa limits second or
successive filings via sec.2244(b). As the panel
wrote in Martin, 96 F.3d at 856, "by drastically
curtailing the filing of second or successive
applications of [sic] habeas corpus, the
antiterrorism law addressed in the context of
habeas corpus the same concern with groundless
litigation that informs the Prison Litigation
Reform Act and tailored its response to that
context." Because the principal office of
sec.2254 and sec.2255 is "to upend a criminal
judgment" (96 F.3d at 855), Martin concluded that
collateral attacks on criminal convictions and
sentences should be grouped with criminal rather
than civil proceedings for the purpose of
sec.1915(b) and (g). In other words, Martin holds
that collateral attacks should be treated the
same way as the judgment being contested.

  But prison discipline is not a criminal
proceeding; Wolff and Baxter hold that it is
civil in nature, and that norms of the criminal
process (such as the right to counsel) do not
apply. If under Martin a collateral attack is
treated (so far as the plra is concerned) as a
continuation of the decision being challenged,
then a collateral attack on prison discipline is
civil rather than criminal. Part iii of Newlin so
holds, which means that petitions for habeas
corpus arising from prison discipline are "civil
actions" for purposes of sec.1915(b), just as
they are for purposes of sec.1914(a), Fed. R.
App. P. 4(a), and many other statutes and rules.

  Part iii of the panel’s opinion does not come
to grips with the language of the plra, the
reasons Martin read that language non-literally,
and the reasons Newlin gave for declining to
extend the non-literal reading to other uses of
habeas corpus. Nonetheless, I am content with the
outcome of Part iii (rather, would be content if
the panel applied the same approach to Part iv).
That other circuits have followed Martin to the
limit is important--we should get rid of
procedural conflicts to the extent we can do so
with intellectual honesty, see Lee v. Clinton,
209 F.3d 1025 (7th Cir. 2000); United States v.
Hill, 48 F.3d 228, 231-32 (7th Cir. 1995)--and
the line between Martin and Newlin can be
elusive. Handling claims and collections under
the plra has not been easy, and stubborn
adherence to a complicating factor that has not
won support elsewhere has little to commend it.
Except for the fact that Part iv of the panel’s
opinion reintroduces this very complication,
creating a new conflict among the circuits in the
process!

  Part IV holds that state prisoners who want to
appeal adverse decisions in cases about good-time
credits do not need certificates of
appealability. Only prisoners seeking to appeal
from the rejection of challenges to their
convictions or sentences need certificates of
appealability, the panel concludes. This
distinction between challenges to convictions and
challenges to prison discipline is exactly the
line drawn (for purposes of sec.1915) by Newlin,
and overruled by Part iii of the panel’s opinion
as both unprincipled (given Preiser and Balisok)
and too difficult to implement. If this line is
incompatible with Higher Authority and causes
administrative headaches, and therefore is a Bad
Thing in Part iii, it is still a Bad Thing when
we arrive at Part iv.

  When statutes leave no leeway, we must tolerate
Bad Things. This is the claim of Part iv: that
the statute leaves no room for maneuver. A state
prisoner needs a certificate of appealability
only when appealing from "the final order in a
habeas corpus proceeding in which the detention
complained of arises out of process issued by a
State court". 28 U.S.C. sec.2253(c)(1)(A). See
also Fed. R. App. P. 22(b)(1). A prisoner who
contests the deprivation of good-time credits is
complaining about an administrative rather than
a judicial decision. The panel remarks (slip op.
20): "In light of the statutory language, we do
not see how we can construe the words ’process
issued by a State court’ to mean ’process not
issued by a State court, but instead the outcome
of an internal prison disciplinary proceeding.’"
Claiming to act under the compulsion of plain
statutory language, the panel disagrees with
other circuits, which have held that state
prisoners need certificates of appealability to
obtain review of any decision under sec.2254.
See, e.g., Montez v. McKinna, 208 F.3d 862, 866-
69 (10th Cir. 2000); Hallmark v. Johnson, 118
F.3d 1073, 1076 (5th Cir. 1997). Section
2253(c)(1)(A) descends from sec.2253 para.3 (1994
ed.), which required prisoners to obtain
"certificates of probable cause" to appeal, and
courts considering the question uniformly have
held or assumed that prisoners who sought
restoration of good-time credits needed
certificates of probable cause. See, e.g.,
Crowell v. Walsh, 151 F.3d 1050 (D.C. Cir. 1998);
Lemieux v. Kirby, 931 F.2d 1391 (10th Cir. 1991).
All of the Justices who wrote or joined opinions
in Davis v. Jacobs, 454 U.S. 911 (1981), assumed
that this is so. And the D.C. Circuit, at least,
has linked the definition of "civil action" under
sec.1915(b) to the need for a certificate of
appealability (or probable cause) under sec.2253.
It held in Crowell and Blair-Bey v. Quick, 151
F.3d 1036 (D.C. Cir. 1998), that when application
of sec.1915(b) is excused in a collateral attack,
application of sec.2253(c) is essential. Our
panel approves Blair-Bey (slip op. 3) yet ignores
Crowell, though these companion opinions
represent two sides of the same coin.

  The panel does not cite, and I could not find,
any appellate decision holding that a state
prisoner does not need a certificate of
appealability (or did not need a certificate of
probable cause) to appeal from the denial of a
request for post-conviction collateral relief.
The panel’s assertion, slip op. 21, that "it is
now well established that the ca requirement does
not apply to appeals in sec.2241 cases" is not
correct. The cases cited for this proposition,
Bush v. Pitzer, 133 F.3d 455, 456 (7th Cir.
1997), and Murphy v. United States, 199 F.3d 599,
601 n.2 (2d Cir. 1999), address collateral
attacks by federal prisoners. Section
2253(c)(1)(A) is limited to state prisoners’
collateral attacks; it is sec.2253(c) (1)(B), not
sec.2253(c)(1)(A), that controls federal
prisoners’ need for certificates of
appealability, and sec.2253(c)(1)(B) covers only
"the final order in a proceeding under section
2255." After the panel’s opinion, the seventh
circuit becomes a minority of one in the
interpretation of sec.2253(c)(1)(A).

  If textualist interpretive methods are
essential, as Part iv proclaims, then what
happened in Part iii? Petitions for habeas corpus
"are technically civil proceedings and so come
within the literal scope of the Act." Martin, 96
F.3d at 855, echoed at slip op. 18. A textual
approach, consistently applied, would require us
to overrule Martin, not Newlin, and to include
all collateral attacks within the plra’s scope.
Why give a pragmatic reading to the plra in Part
iii, then switch to textualism in Part iv? Not
for pragmatic reasons; the approaches yield
diametrically opposed answers to a functionally
identical question.

  Part iv is at war with Part ii.b of the panel’s
opinion as well as with Part iii. In Part ii.b
the panel holds that a petition for a writ of
habeas corpus filed by a prisoner who wants good-
time credits restored is covered by sec.2254
because it is a proceeding "in behalf of a person
in custody pursuant to the judgment of a State
court". 28 U.S.C. sec.2254(a). The panel holds
that one may be "in custody pursuant to the
judgment" without needing to attack that
judgment. Slip op. 11-12. Just so for
sec.2253(c). "[T]he detention complained of
arises out of process issued by a State court"
(emphasis added) even if the prisoner does not
challenge the state court’s process. If
challenges to good-time credits proceed under
sec.2254 because the words "in custody pursuant
to the judgment of a State court" refer to the
genesis of the custody rather than the claim made
in the collateral attack, then the words
"detention complained of arises out of process
issued by a State court" also must refer to the
genesis of the custody rather than the claim made
in the collateral attack. If Part ii.b is right,
then Part iv is wrong.

  Part ii.b has it right. Finfrock’s detention
"arises out of process issued by a State court".
He has been convicted; his conviction and
sentence are essential to his custody. Revocation
of good-time credits does not extend a prisoner’s
sentence; instead this decision (like the denial
or revocation of parole, or demotion to a lower
credit-earning class) requires the prisoner to
serve more of the original sentence. But the
detention has been authorized by (that is, arises
out of) the conviction and sentence (that is,
process issued by a state court). Section
2253(c)(1)(A) deals with detention (= custody)
that depends on a state-court order; it is not
limited to attacks on that order. A prisoner who
protests the revocation of good-time credits is
appealing "the final order in a habeas corpus
proceeding in which the detention complained of
arises out of process issued by a State court"
and therefore needs a certificate of
appealability. The reading offered here is the
one the tenth circuit adopted in Montez, deeming
it an inevitable rendition of the statute’s
language. Part iv makes a plain-language claim
the other way. My colleagues and the tenth
circuit thus agree on one thing: that
sec.2253(c)(1)(A) is clear. They just don’t agree
on what it means, a sign that the language may
not be so plain after all.
  The difference between sec.2254(a) ("application
. . . in behalf of a person in custody pursuant
to the judgment of a State court") and
sec.2253(c)(1)(A) ("proceeding in which the
detention complained of arises out of process
issued by a State court") is not a linguistic
quirk or oversight. Prisoners may seek writs of
habeas corpus before conviction--perhaps to test
the validity of pretrial custody (the Great Writ,
dealing with excessive detention by executive
officials), perhaps to test extradition to
another jurisdiction for trial. A state prisoner
who applies for such a writ and does not get it
needs a certificate of appealability, because he
is in "detention [that] arises out of process
issued by a State court". But such a prisoner has
not been convicted and therefore need not satisfy
sec.2254 or any other restriction on actions by
persons "in custody pursuant to the judgment of
a State court". The distinction is both
historical and sensible. Until the latter half of
the twentieth century no state prisoner could
obtain collateral review following conviction by
a court of competent jurisdiction, and federal
law still makes it difficult to wage a collateral
attack on the final judgment of a state court.
But sec.2253(c)(1)(A) is more general, applying
to all whose custody can be traced to state
judicial process, such as an arrest warrant or
indictment. The panel supposes that sec.2254(a)
is broader than sec.2253(c) (1)(A), but this is
backward. Section 2253(c)(1)(A) applies before
trial, in extradition cases, and after judgment
too, including claims of convicts required to
serve more of their sentences than they think
they should.

  Any reading of sec.2253(c) other than the one
urged here and adopted in Montez produces an
anomaly: a prisoner who challenges 100% of his
prison time (by attacking a conviction or
sentence) needs a certificate of appealability
and is likely to be turned away without an
appellate decision on the merits, for only a
fraction of appellants make the necessary
"substantial showing of the denial of a
constitutional right" (sec.2253(c)(2)). See Slack
v. McDaniel, 120 S. Ct. 1595 (2000). But a
prisoner who challenges only 1% or 5% of his
prison time is guaranteed an appellate decision
on the merits. Whatever sense may lie behind this
eludes me.

  There isn’t any uniform, or uniformly happy,
solution to coverage issues under the aedpa.
Federal prisoners’ collateral attacks on
deprivations of good-time credits arise under
sec.2241, so they do not need certificates of
appealability. But differences in the statute’s
treatment of state and federal prisoners do not
justify departing from sec.2253(c) (1)(A), or for
that matter from sec.1915(b), when we must decide
exactly how state prisoners’ petitions must be
handled. These complex statutes govern hundreds
of cases annually. It is worth the full court’s
time to ensure that the issues I have discussed
are decided correctly.
