                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-1996

Santana v. United States
Precedential or Non-Precedential:

Docket 96-5276




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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT



                    96-5276


                ERNESTO SANTANA

                        v.

            UNITED STATES OF AMERICA

                Ernesto Santana,

                             Appellant.



On Appeal from the United States District Court
         For the District of New Jersey
           D.C. Civ. No. 96-cv-00499



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

Before: BECKER, ALITO and MCKEE, Circuit Judges.
               (Motions Panel A)

       (Opinion Filed   October 18, l996)


                             Ernesto Santana, # 15992-050
                             Ray Brook FCI
                             P.O. Box 905
                             Ray Brook, N.Y. 12977

                             Appellant Pro Se


                             Kevin McNulty, Esq.
                             U.S. Attorney's Office
                             970 Broad St.
                             Newark, New Jersey 07101

                             Counsel for Appellee
                         OPINION OF THE COURT




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 pauperishabeas
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.
                                I.
         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, 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).
                        II.
                                A.
    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 VII of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321
(1996). Section 804 of the 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 formapauperis
could seek and easily obtain waivers of filing fees.
The PLRA, however, requires prisoners proceeding in formapauperis 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.
         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.
                                B.
         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 pauperislitigants 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 (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, 1996 WL 506627*1 (E.D. Pa.) (holding that the PLRA
applies to habeas corpus proceedings); see also Green v.
Nottingham, 90 F3d 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
(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 (1971) (nationwide service of process under 28
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 (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 Congress's passage of the antiterrorism law
proximate to its enactment of the PLRA. On April 24, 1996, two
days before it passed the PLRA, Congress passed the Antiterrorism
and Effective Death Penalty Act ("AEDPA"). Aimed at curbing
groundless litigation, the AEDPA imposes significant restrictions
on the filing of second or successive petitions for habeas corpus
relief. If Congress had wanted to reform the in forma pauperisstatus of
habeas petitioners, it might have done so in the AEDPA;
yet nothing in the AEDPA changes the filing fees attached to
habeas petitions or a prisoner's obligation to pay those filing
fees.
         Because of the foregoing reasons, we believe that the
phrase "civil action" as used in § 1915(b) lacks a plain meaning.
We must therefore consider whether the phrase includes habeas
corpus proceedings in this context. The two courts that have
previously considered this issue agree that Congress did not
intend to include habeas proceedings in the category of "civil
action" for the purposes of § 1915(b). See Martin v. United
States, 1996 WL 528816 (7th Cir.); Reyes v. Keane, 90 F.3d 676
(2d Cir. 1996). We concur with those Courts. In determining
whether a statute governing "civil actions" applies to habeas
corpus proceedings, we must examine its context. See In re Grand
Jury Subpoena Duces Tecum Dated January 2, 1995 (Simels), 775
F.2d 499, 503 (2d Cir. 1985) ("The application of each statute or
rule using the words `civil action' must be decided on the basis
of its language, its history and its purpose."). In Reyes, 90
F.3d at 678, Judge Newman noted that nothing in the text or
legislative history of the PLRA "indicate[s] that Congress has
endeavored to make the filing fee payment requirements to apply
to habeas corpus petitions [or appeals]." Rather, Congress
enacted the PLRA primarily to curtail claims brought by prisoners
under 42 U.S.C. § 1983 and the Federal Torts Claims Act, most of
which concern prison conditions and many of which are routinely
dismissed as legally frivolous. See H.R. CONF. REP. NO. 104-378,
104th Cong., 2d Sess. (1996) (The PLRA "limit[s] the remedies for
prison condition lawsuits."); 141 CONG. REC. S14418 (daily ed.
Sept. 27, 1995) (statement of Sen. Hatch) (The PLRA will limit
frivolous "prison condition lawsuits," such as a prisoner who
"sued demanding that he be issued Reebok ... instead of Converse"
brand shoes.").
         The text of the PLRA itself reflects this focus.
Section 802 of the PLRA limits remedies in prison conditions
cases. Section 803 restricts § 1983 actions by requiring
prisoners to exhaust their administrative remedies prior to
filing such claims. See 42 U.S.C. § 1997(e). Section 806
narrows the availability of relief under the Federal Tort Claims
Act by prohibiting prisoners from bringing actions against the
government for mental or emotional injury absent a showing of
physical harm. See 28 U.S.C. § 1346(b). Relying upon the PLRA's
purpose, the Second Circuit has noted that the PLRA applies to
special proceedings like habeas corpus "if the ... claim is
analogous to the typical suits brought under 42 U.S.C. § 1983
complaining about prison conditions." Reyes, 90 F.3d at 679
(quoting In re Paul Nagy, 89 F.3d 115, 117 (2nd Cir. 1993)).
Although we do not suggest that the only civil actions to which
the PLRA applies are prisoners' suits seeking relief from prison
conditions, we agree with the Second Circuit that, where a claim
is not analogous to such a suit, the PLRA should be applied with
caution. See Reyes, 90 F.3d at 679 n.1.
         Furthermore, when the PLRA is read as a whole, it is
apparent that Congress did not intend for the statute to apply to
habeas proceedings. The PLRA establishes an elaborate
installment payment plan by which litigants may fulfill their
filing fee obligations, yet does not increase the $5 filing fee
for a habeas corpus petition. In comparison, the filing fee for
a civil complaint is $120.00. 28 U.S.C. § 1914(a). Congress
surely did not intend for the installment plan of the PLRA to
apply to habeas corpus actions merely to assure deferred monthly
payments of a $5.00 fee. See Reyes, 90 F.3d at 67. Furthermore, §
1915(g) limits a prisoner to three frivolous suits or appeals in
a lifetime. To hold that the PLRA was applicable to habeas
corpus actions would prohibit a prisoner who had filed three
groundless civil suits from seeking habeas relief from unlawful
imprisonment. As Judge Posner observes in Martin, 1996 WL 528816
*2, "[t]his result would be contrary to a long tradition of ready
access of prisoners to federal habeas corpus." This is a result
that we cannot countenance.
         For the foregoing reasons, we conclude that the filing
fee payment requirements of the PLRA set forth in 28 U.S.C. §
1915(b) do not apply to habeas corpus petitions or to appeals
from the denial of such petitions. Henceforth, the Clerk of this
Court and the clerks of all of the district courts in this
Circuit shall not impose the financial requirements of the PLRA
in forma pauperis habeas corpus cases or appeals brought under 28
U.S.C. §§ 2254 and 2255.

                               III.
    Turning to the substance of the request for a
certificate of appealability, we find no basis for granting it.
In his plea for habeas relief, Santana reproaches his counsel for
failure to object to a miscalculation of his sentence, asserting
that the Sentencing Guideline range for his offense requires a
minimum sentence of only 87 months. The crime to which Santana
pled guilty, however, carries a mandatory statutory minimum
sentence of 120 months. 21 U.S.C. §§ 846, 841 (b)(1)(A). In a
case such as this, where the statutory minimum sentence exceeds
the defendant's guideline range, the court is required to impose
the statutory minimum sentence. U.S.S.G. § 5G1.1(c)(2); see alsoUnited
States v. Melendez, 55 F.3d 130, 135 n.1 (3d Cir. 1995)
("Where a statutory minimum is above the Guideline range, it
becomes the guideline sentence.") (internal quotation marks
omitted), aff'd, 116 S. Ct. 2057 (1996).
    We recognize that a statutory minimum sentence is not
an absolute barrier to a lesser sentence:
    Upon motion of the Government, the court shall have the
    authority to impose a sentence below a level
    established by statute as minimum sentence so as to
    reflect a defendant's substantial assistance in the
    investigation or prosecution of another person who has
    committed an offense.
18 U.S.C. § 3553(e). In Santana's case, however, the barrier
remains inviolable. A court is powerless to impose a sentence
below a statutory minimum without a motion of the government; in
this case, the prosecution made no such motion. See Melendez, 55
F.3d at 134 ("Congress has authorized sentences below a statutory
minimum only upon the prosecution's motion."). Moreover, by his
own admission, the only assistance that Santana provided the
government related to his own involvement in the conspiracy,
Memorandum of Law in Support of Petition at 6-7, not that of
"another person who has committed an offense."   28 U.S.C. §
3553(e). Thus, Santana cannot fault his counsel for failure to
press the government to make such a motion.
    Because the court was powerless to impose a sentence
below the statutory minimum, Santana cannot show that his
attorney's performance was objectively unreasonable as required
by a claim for ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984).
                               IV.
    For the foregoing reasons, we hold that the filing fee
payment requirements of the PLRA set forth in 28 U.S.C. § 1915(b)
do not apply to habeas corpus petitions or to appeals from the
denial of such petitions. Because we also find that Santana's
claim of ineffective counsel is without merit, his request for a
certificate of appealability will be denied.
