                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-2006

Daley v. Fed Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1737




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APS-301                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     NO. 06-1737
                                  ________________

                                JOHN R. DALEY, JR.

                                             v.

                         FEDERAL BUREAU OF PRISONS


                      John T. Picquin-George a/k/a John R. Daley, Jr.,

                                               Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                                   (D.C. No. 05-215)
                    District Judge: Honorable Joseph J. Farnan, Jr.
                     _____________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
            Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 10, 2006

            Before: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                               (Filed: August 25, 2006)
                             _______________________

                                    OPINION
                             _______________________
PER CURIAM

       John T. Picquin-George a/k/a John R. Daley, Jr. appeals pro se from an order of

the United States District Court for the District of Delaware denying his post-judgment

motion for attorney’s fees in his federal habeas corpus proceeding.

       In March 2005, Daley filed a petition for a writ of habeas corpus in the United

States District Court for the District of Delaware. His petition alleged that he had

finished serving a Massachusetts state sentence and was awaiting transfer to a federal

prison to serve a one-year federal sentence. He asked the District Court to expedite his

transfer to a federal prison. The District Court concluded that it did not have jurisdiction

to review his habeas application under either 28 U.S.C. § 2241 or § 2254 because he was

not in custody in the state of Delaware, and did not challenge a sentence or conviction

imposed by the state of Delaware or the United States District Court for the District of

Delaware. Daley filed a motion for reconsideration, which the District Court denied. In

its denial order, the District Court observed that Daley had since been transferred to

federal custody.1 We summarily affirmed the judgment of the District Court, concluding

that Daley’s petition did not assert any valid basis for review in the District of Delaware.




       1
        According to the release date Daley submitted to the District Court, he has now
been released from prison.

                                              2
See Daley v. Fed. Bureau of Prisons, 157 Fed. Appx. 520, 522 (3d Cir. 2005) (petition did

not implicate jurisdiction under 28 U.S.C. §§ 2241(a),(d) or § 2255) (per curiam).2

       After his unsuccessful appeal, Daley filed a motion for attorney’s fees with the

District Court arguing that he was entitled to attorney’s fees for representing himself

pursuant to 18 U.S.C. § 3006 and § 3006A because he had ultimately received the relief

he requested; i.e., transfer to a federal facility in Pennsylvania.3 He also asserted that he

should be awarded attorney’s fees under the First, Fifth, and Fourteenth Amendments of

the Constitution. The District Court denied Daley’s motion in an order entered February

1, 2006, reasoning that pro se litigants were not generally eligible for attorney’s fees. The

District Court further concluded that Daley could not receive attorney’s fees under the

Hyde Amendment, Pub. L. No. 105-119, § 617, 111 Stat. 2519 (1997), reprinted in 18

U.S.C. § 3006A, because he was not a prevailing party in a criminal case, and the position

of the United States had not been vexatious, frivolous, or in bad faith.

       Daley filed a timely notice of appeal from the January 2006 order denying his

motion for attorney’s fees. On appeal, Daley argues that the District Court erred by

(1) not deciding the constitutionality of denying a pro se prisoner attorney’s fees; and

(2) not stating whether his motion was denied with prejudice or without prejudice. He


       2
       In that appeal, we did not decide the question whether Daley’s petition was more
properly construed as a § 2241, § 2255, or § 2254 petition.
       3
       This was Daley’s second motion for attorney’s fees in the District Court. His first
motion was denied in an order entered October 7, 2005. Daley filed a motion for
reconsideration, which the District Court denied. Daley did not appeal.

                                              3
again maintains that he should have been awarded attorney’s fees under 18 U.S.C.

§ 3006(A) and the First, Fifth, and Fourteenth Amendments.

       We have jurisdiction over Daley’s post-judgment motion for attorney’s fees

pursuant to 28 U.S.C. § 1291. Because there is no substantial question on appeal, the

District Court’s order will be affirmed.

       As a threshold matter, we conclude that no certificate of appealability (“COA”) is

required to entertain Daley’s appeal because his underlying petition – although not a

model of clarity – is most fairly read as a petition for habeas corpus relief under 28 U.S.C.

§ 2241.4 See 28 U.S.C. § 2253(c)(1). Section 2241 confers jurisdiction on a district court

to issue a writ of habeas corpus in response to a petition from a state or federal prisoner

who “is in custody in violation of the Constitution or laws or treaties of the United

States.” Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001) (citing and quoting 28

U.S.C. §§ 2241(a) and (c)(3)). A § 2241 petition “generally challenges the execution of a

federal prisoner’s sentence, including such matters as the administration of parole . . .

prison transfers, type of detention and prison conditions.” Jiminian v. Nash, 245 F.3d

144, 146 (2d Cir. 2001) (quoted in Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242

(3d Cir. 2005)) (emphasis in original). Here, Daley’s underlying habeas petition




       4
        In United States v. Rinaldi, 447 F.3d 192, 195 (3d Cir. 2006), we held that an
order denying a Fed. R. App. P. 4(a)(6) motion in a § 2255 proceeding was a final order
under § 2253, and that a COA was required to appeal that order. Because we conclude
that Daley’s habeas petition was a § 2241 petition, this rule is not implicated.

                                              4
sought to challenge the execution of his federal sentence.5 Essentially, Daley complained

that, upon expiration of his state sentence, the U.S. Marshals had not transferred him

quickly enough out of the state penitentiary in Massachusetts. Accordingly, we conclude

that his petition is most properly construed as a request for relief under section 2241, and

that no COA is required here. In any event, even if Daley’s petition was more properly

viewed as a § 2254 petition or a § 2255 motion, and we determined that a COA was

required, we would not issue a COA for the reasons discussed below.

       Turning to the merits of Daley’s appeal, we hold that Daley’s post-judgment

motion for attorney’s fees is without merit and was properly denied by the District Court.

Section 3006A addresses the furnishing of representation for financially eligible

individuals who are charged with certain crimes or who are seeking habeas relief, among

other things. See 18 U.S.C. §§ 3006A(a)(1), (a)(2)(B). The statute also provides for

payment for this representation. See 18 U.S.C. § 3006A(d). The plain language of the

statute limits payment for representation to attorneys (and entities like bar associations)

who represent individuals identified by the act. See 18 U.S.C. § 3006A(d)(1) (“Any

attorney appointed pursuant to this section . . . shall . . . be compensated at a rate not

exceeding . . . .”). Cf. U.S. v. McElhiney, 369 F.3d 1168, 1170 (10th Cir. 2004) (plain

language of § 3006A(d)(1) “clearly limits reimbursement to expenses incurred by court-

appointed attorneys and cannot reasonably be read to allow reimbursement to pro se


       5
        Notably, Daley’s petition was addressed to various federal entities and the District
Court identified the Federal Bureau of Prisons as the proper respondent.

                                               5
criminal defendants”); Green v. United States, 323 F.3d 1100, 1104 (8th Cir. 2003) (“the

purpose of the reimbursement provision is to prevent the uncompensated servitude of

attorneys appointed to aid in the representation of indigent persons”). Thus, Daley, a pro

se litigant, cannot make a valid claim for attorney’s fees under § 3006A.

       Nor is Daley eligible for attorney’s fees under the Hyde Amendment. The Hyde

Amendment provides for an award of attorney’s fees to a prevailing criminal defendant

“where the court finds that the position of the United States was vexatious, frivolous, or

in bad faith . . . .” Pub. L. No. 105-119, § 617, 111 Stat. 2519 (1997), reprinted in 18

U.S.C. § 3006A.6 Habeas proceedings are not criminal proceedings, and therefore the

Hyde Amendment is inapplicable here. See Sloan v. Pugh, 351 F.3d 1319, 1323 (10th

Cir. 2003) (habeas proceeding was a “hybrid” type of case that fell outside the scope of

the Hyde Amendment). See also Parrott v. Gov’t of the Virgin Islands, 230 F.3d 615, 620

n.7 (3d Cir. 2000) (“habeas corpus proceedings are hybrid ones”). In addition, Daley was

not a prevailing party in the underlying litigation because his habeas petition was


       6
        The Hyde Amendment provides in relevant part:

       During fiscal year 1998 and in any fiscal year thereafter, the court, in any
       criminal case (other than a case in which the defendant is represented by
       assigned counsel paid for by the public) . . . may award to a prevailing
       party, other than the United States, a reasonable attorney’s fee and other
       litigation expenses, where the court finds that the position of the United
       States was vexatious, frivolous, or in bad faith, unless the court finds that
       special circumstances make such an award unjust. Such awards shall be
       granted pursuant to the procedures and limitations (but not the burden of
       proof) provided for an award under section 2412 of title 28, United States
       Code.

                                              6
dismissed for lack of jurisdiction. Daley’s subsequent transfer to a federal facility did not

transform him into a prevailing party for purposes of the Hyde Amendment. Finally, we

reject Daley’s claim that the various Constitutional amendments he cites entitle him to

attorney’s fees in a case where he was not even a prevailing party. We also conclude that

the District Court did not err by failing to specify whether its denial of the motion for

attorney’s fees was with or without prejudice.

       For these reasons, we agree with the District Court’s conclusion that Daley was not

entitled to attorney’s fees and will summarily affirm the District Court’s judgment.




                                              7
