* Chief District Judge of the Western District of Louisiana, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-00013

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IN RE: LOUIS ELTON STONE,

Petitioner

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On Petition for Writ of Mandamus to the United States

District Court for the Southern District of Texas

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July 18, 1997

Before WIENER and PARKER, Circuit Judges, and LITTLE,

District Judge.*

LITTLE, District Judge:

Louis Elton Stone ("Stone"), a federal prisoner,

petitions this court under 28 U.S.C. § 1651(a) for a writ of

mandamus prohibiting the district judge from improperly

influencing an administrative review of the calculation of his

sentence. Determining that the recent amendments to the

Prison Litigation Reform Act ("PLRA") do not apply to this
2

proceeding, we, nonetheless, find that Stone has not

demonstrated an entitlement to the writ. The petition is

denied.

FACTS AND PROCEEDINGS BELOW

Stone was convicted in the United States District Court

for the Southern District of Texas on 20 November 1990 on drug

related charges. On 7 February 1991, the trial judge

sentenced Stone to 121 months of incarceration, allowing

credit for the time served in state custody since 1989.

Stone began serving his federal sentence in April 1991.

Finding that federal custodianship was in error, the

petitioner was transferred to the Texas Department of

Corrections in November 1993. When Stone was released from

state prison and returned to the custody of the Federal Bureau

of Prisons on 18 January 1995, his release date was changed

from July 1999 to November 2003. Arguing that 1999 was the

proper date because he was entitled to credit for the time

spent in state custody, Stone brought a proceeding pursuant to

28 U.S.C. § 2255 to correct his sentence. 

Finding that only the United States Attorney General may

grant credit for time served in state custody, the district

judge denied Stone's post-conviction relief. Stone then

attempted to correct his sentence through an administrative
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proceeding with the Attorney General's office. Stone alleges

that in the course of the administrative review, the Attorney

General, through the Bureau of Prisons, sought direction from

the trial judge and that the judge improperly influenced the

decision by the Bureau of Prisons. Complaining that the trial

judge's interference caused the Bureau to deny the correction

of his sentence, the petitioner submitted the instant writ of

prohibition to this court to direct the trial judge to refrain

from influencing the administrative review process.

In his petition for a writ of prohibition, also referred

to as mandamus, pro-se petitioner Stone seeks to proceed in

forma pauperis ("IFP") and contends that the Prison Litigation

Reform Act ("PLRA") does not apply to his application for IFP

status. Before we may reach the merits of the petition, the

court must first address the applicability of the PLRA.

ANALYSIS

I. Applicability of the PLRA

The PLRA amended 28 U.S.C. § 1915 to impose new filing

burdens on prisoners desiring to appear IFP in certain

proceedings. "A prisoner seeking to bring a civil action or

appeal a judgment in a civil action or proceeding" is subject

to the financial disclosure rules of § 1915 and must pay the
1 In re Tyler, 110 F.3d 528 (8th Cir. 1997); Madden v. Myers, 102

F.3d 74 (3d Cir. 1996); Martin v. United States, 96 F.3d 853 (7th Cir. 1996);

In re Nagy, 89 F.3d 115 (2d Cir. 1996); Green v. Nottingham, 90 F.3d 415

(10th Cir. 1996).

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full filing fee. 28 U.S.C. § 1915(a)(2), (b)(1),(2). The

issue presented in this case is whether Stone’s petition for

mandamus is a civil action or an appeal, and therefore subject

to the provisions of the PLRA. Five other circuits1 have

passed on whether the PLRA applies to mandamus proceedings,

and we first addressed this question in Santee v. Quinlan.

Santee v. Quinlan, 115 F.3d 355 (5th Cir. 1997).

A. Characterization of the writ of mandamus

The plain language of the statute does not expressly

encompass a writ of mandamus. The Fifth Circuit has referred

to mandamus as a "remedy," In re First South Sav. Ass'n, 820

F.2d 700, 706 (5th Cir. 1987), that is available upon proof of

certain "elements," United States v. O'Neil, 767 F.2d 1111,

1112 (5th Cir. 1985). Although such terms suggest that

mandamus is a separate action, this circuit has also described

the writ as a method of "supervisory control of the district

courts." United States v. Comeaux, 954 F.2d 255, 261 (5th

Cir. 1992). In further support of the notion of mandamus as

a form of appeal, a panel of the Fifth Circuit held that a
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court of appeals must have an independent basis of

jurisdiction over the matter because "the writ [of mandamus]

must issue 'in aid of' that jurisdiction." Hamilton v.

Moriai, 644 F.2d 351, 354 (5th Cir. 1981).

There is no uniform notion of the writ among the other

circuits, but most consider it to be a form of appeal. The

Third Circuit classified mandamus as "a procedural mechanism,"

Madden v. Myers, 102 F.3d 74, 77, (3d Cir. 1996), available to

courts of appeal "only 'to confine an inferior court to a

lawful exercise of its prescribed jurisdiction.'" Id. at n.3

(quoting Will v. United States, 389 U.S. 90, 95 (1967)). When

the writ is brought against the trial judge in a petitioner’s

case, the Seventh Circuit considered mandamus to be an

interlocutory appeal. Martin v. United States, 96 F.3d 853,

854 (7th Cir. 1996); accord In re Tyler, 110 F.3d 528, 529

(8th Cir. 1997). The Tenth Circuit similarly characterized it

as "an aid of appellate jurisdiction," and "part of the

litigation of a case." Green v. Nottingham, 90 F.3d 415, 417

(10th Cir. 1996); accord Tyler, 110 F.3d at 529.

This circuit's approach in Comeaux and Hamilton, as well

as the majority of other circuits, convince us that the

mandamus petition in this case is not an independent civil

action, but may be considered a type of appeal. This does not
2 Our focus on the underlying action accords with the treatment of

these cases by circuits viewing mandamus as an appeal. For example, both the

Second and Seventh Circuits found the PLRA applicable where the underlying

action is civil (e.g., a § 1983 action), but inapplicable to criminal

litigation and habeas cases. In re Nagy, 89 F.3d at 117; Martin, 96 F.3d 854-

855; but see Green, 90 F.3d at 418 (holding that all petitions for writs of

mandamus are subject to the PLRA because to view the statute otherwise would

“allow a loophole Congress surely did not intend in its stated goal”).

3 The following cases have held that the PLRA is inapplicable to §

2255 proceedings: United States v. Simmonds, 1997 LW 177560 (10th Cir. 1997);

United States v. Levi, 1997 WL 222347 (D.C. Cir. 1997); Martin v. United

States, 96 F.3d 853 (7th Cir. 1996); Santana v. United States, 98 F.3d 752

(3d Cir. 1996). Similarly, the following cases found the PLRA inapplicable

to habeas corpus proceedings under § 2254: Anderson v. Singletary, 1997 WL

188471 (11th Cir. 1997); Smith v. Angelone, 1997 WL 198075 (4th Cir. 1997);

Naddi v. Hill, 106 F.3d 275 (1997); Reyes v. Keane, 90 F.3d 676 (2d Cir.

1996).

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end our inquiry, however, as the PLRA only applies to civil

actions. In a mandamus proceeding, therefore, the nature of

the underlying action will determine the applicability of the

PLRA.2

B. Consideration of the underlying action

The Fifth Circuit, along with all other circuits that

have considered the issue,3 has found that the PLRA is

inapplicable to habeas corpus proceedings under 28 U.S.C.

§ 2255. United States v. Cole, 101 F.3d 1076 (5th Cir. 1996);

see also Carson v. Johnson, 1997 WL 211800, (5th Cir. 1997).

Stone's petition to this court arose out of a § 2255

petition for post-conviction relief. Respecting this

circuit's recent holding in Cole, we find that the mandamus

petition in the instant case is not subject to the fee payment

requirements of the PLRA.
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II. Merits of the petitioner’s application

Mandamus is reserved for extraordinary circumstances.

Kerr v. United States Dist. Ct., 426 U.S. 394, 403 (1976).

The petitioner must demonstrate (1) a clear right to the

relief, (2) a clear duty by the respondent to do the act

requested, and (3) the lack of any other adequate remedy.

O'Neil, 767 F.2d at 1112 (citations omitted); see also Allied

Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). In

the instant case, we find that the petitioner has failed to

make the requisite showing.

CONCLUSION

In this proceeding, Stone is not subject to the filing

fee provisions of the PLRA and, therefore, his IFP status is

approved. The petition for a writ of mandamus is DENIED.