Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 1, June 1996

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

Two statutes enacted in April 1996 will have major effects on

how federal courts deal with prisoner petitions. Title I of the

Antiterrorism and Effective Death Penalty Act concerns habeas petitions, and the Prison Litigation Reform Act concerns

conditions of confinement suits. Because these statutes are

complex and likely to spawn a great deal of litigation, the

Center will attempt to assist the courts by several means.

1. We will produce this newsletter to summarize relevant

appellate and district court decisions under the statutes. We

see it as a quick-response, short-term effort to help judges

during the most intense period of judicial interpretation. It is

patterned after our Guideline Sentencing Update publication,

but will have a shorter life span. This first issue includes

decisions reported as of May 27, 1996.

2. We are planning a nationally broadcast videoseminar late

this summer to analyze the new habeas provisions and how

the courts have been interpreting them, with some attention

also to the Prison Litigation Reform Act.

3. We will adapt our already scheduled regular educational

programs to take account of these legislative changes. For

example, the June conference of chief probation and pretrial

services officers, the August Capital Case Management Workshop for appellate clerks, this summer’s programs for magistrate judges, and September’s seminar on pro se litigation are

all undergoing curriculum revision in light of these statutes.

We are also helping circuit conference planners arrange programs on these topics.

4. We will focus on these statutes in several of our regular

reporting services. The Chambers to Chambers serial periodical, currently running a series on federal capital prosecutions,

will share court and case management innovations that judges

and courts have developed in response to the new statutes.

Our Resource Guide for Managing Prisoner Civil Rights Litigation, which has been in draft status pending the new legislation, will now move to final publication.

We welcome your comments about our responses to the

new legislation and any suggestions you have. We will try to

be as flexible as possible in our assistance to the courts.

Courts of Appeals

Eleventh Circuit denies authorization to file second habeas petition under amended habeas statute; Supreme

Court grants certiorari. After the appellate court affirmed the

denial of defendant’s first federal petition for habeas corpus

relief and the Supreme Court denied his petition for certiorari,

the state set his execution for between May 2 and May 9, 1996.

The state courts denied defendant’s second state habeas petition, and on May 2 he filed in the federal appellate court a

request for a stay of execution and an application, pursuant to

section 106 of the Antiterrorism and Effective Death Penalty

Act of 1996 (to be codified at 28 U.S.C. § 2244(b)), for

permission to file a second federal habeas petition in the

district court. He claimed that he satisfied the requirements for

a second habeas filing under the Act, and he argued alternatively that the new Act unconstitutionally restricted his right

to bring habeas claims. The appellate court did not reach this

second claim because it determined that defendant would not

have been entitled to relief under either the new law or pre-Act

law.

Under new section 2244(b)(3)(C), “[t]he court of appeals

may authorize the filing of a second or successive application

only if it determines that the application makes a prima facie

showing that the application satisfies the requirements of this

subsection.” The court held that neither of defendant’s claims

satisfied the provisions of section 2244(b)(2)(A) or (B): he did

not “rel[y] on a new rule of constitutional law . . . that was

previously unavailable”; the “factual predicate for the claim”

was already known; and “the facts underlying the claim”

would not be sufficient to establish, even under the preponderance standard, that “no reasonable factfinder would have

found the applicant guilty of the underlying offense.” The

court concluded that “Felker has failed to show substantial

grounds upon which relief might be granted under the new

Act. Likewise, he has failed to show substantial grounds upon

which relief might be granted insofar as any constitutional

issues involving the Act are concerned, because he would not

be entitled to any relief even under pre-Act law.”

Felker v. Turpin, No. 96-1077 (11th Cir. May 2, 1996) (per

curiam).

The Supreme Court has granted certiorari in Felker, limited

to the following issues: “(1) Whether Title I of the AntiTerrorism and Effective Death Penalty Act of 1996 (the Act),

and in particular Section 106(b)(3)(E), 28 U.S.C.

§ 2244(b)(3)(E), is an unconstitutional restriction of the

HABEAS CORPUS
2 Habeas & Prison Litigation Case Law Update, number 1, June 1996 • a publication of the Federal Judicial Center

jurisdiction of this Court. (2) Whether and to what extent the

provisions of Title I of the Act apply to petitions for habeas

corpus filed as original matters in this Court pursuant to 28

U.S.C. § 2241. (3) Whether application of the Act in this case

is a suspension of the writ of habeas corpus in violation of Art.

I, § 9, clause 2 of the Constitution.” New 28 U.S.C.

§ 2244(b)(3)(E) states: “The grant or denial of an authorization by a court of appeals to file a second or successive

application shall not be appealable and shall not be the subject

of a petition for rehearing or for a writ of certiorari.”

Felker v. Turpin, 116 S. Ct. 1588 (U.S. May 3, 1996) (oral

argument set for June 3, 1996).

Ninth Circuit uses prior law to deny habeas petition

and request for stay of execution that were pending when

new law took effect. Defendant was scheduled for execution

May 3, 1996. He filed a second habeas petition April 22, 1996,

and amended the petition with new claims on April 26. The

district court held that it lacked jurisdiction to hear the

petition without an order from the appellate court authorizing

it under new 28 U.S.C. § 2244(b)(3)(A). See section 107(c) of

the Antiterrorism and Effective Death Penalty Act of 1996

(special habeas procedures in capital cases “shall apply to

cases pending on or after the date of enactment of this Act”).

Alternatively, even if the Act did not apply retroactively, the

district court concluded that the petition should be dismissed

because defendant “failed to show cause and prejudice for

bringing his successive and abusive claims” and there were no

other grounds to justify granting the petition.

The appellate court affirmed on the alternative ground.

“The standard for obtaining a certificate of appealability under

the Act is more demanding than the standard for obtaining a

certificate of probable cause under the law as it existed prior

to enactment of the Act. We need not decide whether to apply

the Act’s more demanding standard retroactively to Williams’s

case. Rather, we assume, without deciding, that section

2253(c)(2) of the Act does not apply retroactively to

Williams’s case. We, therefore, grant a certificate of probable

cause to permit Williams to appeal the district court’s denial of

his writ of habeas corpus.” The court then concluded that

“Williams’s second petition raises both successive and abusive

claims, and Williams has failed to demonstrate cause and

prejudice for raising these claims at this late date, nor has he

shown that a miscarriage of justice would result from our

refusal to review these claims. We, therefore, affirm the district

court’s denial of Williams’s petition for a writ of habeas corpus,

and we deny his application for a stay of execution.”

Williams v. Calderon, No. 96-99009 (9th Cir. May 1, 1996)

(Thompson, J.).

District Courts

District court concludes that it may grant “certificate of

appealability” under new law after denial of habeas petition. The district court denied petitioner’s habeas claims on

March 28, 1996. On April 26, petitioner applied for a

Certificate of Probable Cause to appeal the denial. Although

the habeas petition had been denied before the new habeas

reform act was signed into law, the court reasoned that “in the

absence of expressed contrary provisions, statutes become

effective when they are signed into law,” and the new act

should be applied to the appeal. Under the new act, amended

28 U.S.C. § 2253(c)(1) states that “[u]nless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals.” (Previously, section 2253 also

allowed “the justice or judge who rendered the order” to

certify the appeal.) However, the new act also amended Fed.

R. App. P. 22 to state that “an appeal by the applicant for the

writ may not proceed unless a district or a circuit judge issues

a certificate of appealability pursuant to section 2253(c)”

(emphasis added).

The court held that it would “apply the Rule of Appellate

Procedure because it authorizes me, a district judge, to issue

a certificate of appealability. The statute, 28 U.S.C. § 2253,

applies by its wording only to circuit justices and judges and

authorizes them to issue certificates of appealability. The

statute does not say, however, that only circuit justices or

judges may issue such certificates. I conclude the statute as

amended does not prohibit district judges from exercising the

authority vested in us by the Rule of Appellate Procedure.”

The court issued the certificate.

Houchin v. Zavaras, No. CIV.A. 93-K-2651 (D. Colo. May 1,

1996) (Kane, J.).

Unpublished opinions

[Although we recognize that the precedential value of unpublished decisions and the rules and practices for citing thereto

may vary among the courts, we are reporting unpublished

opinions and orders in order to provide the most complete

picture possible of the issues being litigated under the new

legislation.]

District court holds new habeas law should not be applied

retroactively to pending petitions in non-capital cases.

The court granted defendant’s second 28 U.S.C. § 2255 motion

to vacate his conviction and sentence under 18 U.S.C.

§ 924(c)(1) in light of a recent Supreme Court case. The court

used the habeas law in effect when defendant filed his motion

rather than retroactively applying the new law that became

effective while defendant’s motion was pending. “While the

recently enacted ‘Antiterrorism and Effective Death Penalty

Act of 1996’ amends § 2255 to require that second or successive motions be based on newly discovered evidence of the

defendant’s innocence, or on new rules of constitutional law,

we do not believe that these provisions apply to motions filed

before passage of the Act. In the same title of the Act that

amends § 2255 and § 2254, Congress specifically mandated

that the new procedures for habeas corpus petitions involving

capital punishment are to apply to all pending and subsequently filed cases. Pub. L. No. 104-132, § 107(c) . . . (April
Habeas & Prison Litigation Case Law Update, number 1, June 1996 • a publication of the Federal Judicial Center 3

24, 1996). Congress declined to include such language in the

portion of the Act amending § 2255, and therefore we can infer

that retroactivity was not intended.”

U.S. v. Trevino, No. 96 C 828 (N.D. Ill. May 10, 1996)

(Aspen, C.J.). Cf. U.S. ex rel. Centanni v. Washington, No. 95 C

7393 (N.D. Ill. May 8, 1996) (Shadur, J.) (memorandum

opinion ordering parties to brief the issue of whether the

Antiterrorism and Effective Death Penalty Act of 1996 applies

to non-capital cases that were pending before the date of

enactment).

PRISON LITIGATION

No cases reported as of May 27, 1996.
Habeas & Prison Litigation Case Law Update, number 1, June 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 2, July 1996

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Supreme Court

Supreme Court rules that Antiterrorism and Effective

Death Penalty Act does not repeal Court’s authority to

entertain original habeas petitions or violate

Constitution’s Exceptions or Suspension Clauses, but

does affect standards governing granting of relief.

Petitioner’s execution was scheduled for the period May 2-9,

1996. On May 2, 1996, he filed motions with the Eleventh

Circuit for stay of execution and for leave to file a second or

successive federal habeas corpus petition under 28 U.S.C.

§ 2254. The court of appeals denied both motions, concluding

that petitioner’s claims had not been presented in his first

habeas petition and that they did not meet the standards of

§ 106(b)(2) (amending 28 U.S.C. § 2244(b)) of the Antiterrorism and Effective Death Penalty Act (effective April 24,

1996).

Petitioner then filed with the Supreme Court a petition for

writ of habeas corpus, for appellate or certiorari review of the

Eleventh Circuit’s decision, and for stay of execution. On May

3, the Court granted the stay application and petition for

certiorari and ordered briefing on “the extent to which the

provisions of Title I of the Act apply to a petition for habeas

corpus filed in this Court, whether application of the Act

suspended the writ of habeas corpus in this case, and whether

Title I of the Act, especially § 106(b)(3)(E), constitutes an

unconstitutional restriction on the jurisdiction of this Court.”

A unanimous Court held that the Act does not deprive it of

jurisdiction to entertain original habeas petitions, pursuant to

28 U.S.C. §§ 2241 and 2254, but does impose new conditions

on its authority to grant relief. Since it retained jurisdiction

over original petitions, the Court said the petitioner did not

have a “plausible argument that the Act has deprived this

Court of appellate jurisdiction in violation of Article III, § 2”

of the U.S. Constitution (granting the Court appellate jurisdiction “with such Exceptions . . . as the Congress shall

make”). The Court also ruled that its consideration of original

habeas petitions must be informed by the Act’s new restrictions on the granting of relief to state prisoners under § 2254.

It further held that the added restrictions which the Act places

on second habeas petitions do not amount to a “suspension”

of the writ contrary to Article I, § 9 of the Constitution.

The Court first considered the “gatekeeping” mechanism

established by § 106(b)(3) of the Act (§ 2244(b)(3)(A-E)),

which requires application to the court of appeals for leave to

file in the district court a second or successive habeas application. Section 106(b)(3)(E) states that the “grant or denial of an

authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the

subject of a petition for rehearing or for a writ of certiorari.”

The Court noted that while § 106(b)(3)(E) “precludes us

from reviewing . . . a judgment on an application for leave to

file a second habeas petition in district court, it makes no

mention of our authority to hear habeas petitions filed as

original matters in this Court.” Therefore, because repeal by

implication of the Court’s habeas power is not favored, “we

conclude that Title I of the Act has not repealed our authority

to entertain original habeas petitions.” This conclusion “obviates one of the constitutional challenges raised,” that the Act

violates the Exceptions Clause, Article III, § 2, because it

deprives the Supreme Court of appellate jurisdiction in cases

falling under § 106(b)(3)(E).

With reference to the new requirements imposed by the Act

for granting relief under § 2254, the Court observed that

§ 106(b)(3)’s “gatekeeping” system for second petitions applies only to applications “filed in the district court” and

consequently does not apply to the Supreme Court’s consideration of habeas petitions. However, § 106(b)(1) and (2) “apply without qualification to any ‘second or successive habeas

corpus application under section 2254. . . . Whether or not we

are bound by these restrictions, they certainly inform our

consideration of original habeas petitions.”

The Court then determined that the Act does not violate

Article I, § 9, Clause 2 (providing that the writ of habeas

corpus “shall not be suspended, unless when in Cases of

Rebellion or Invasion the public Safety may require it”). The

Act’s requirement that a habeas petitioner obtain leave from

the court of appeals to file a second petition in the district court

“simply transfers from the district court to the court of appeals

a screening function which would previously have been performed by the district court.” The Act’s codification of some

preexisting limits on successive petitions and further restrictions on the availability of relief were within Congress’s

purview in prescribing “the proper scope of the writ.” The new

restrictions “constitute a modified res judicata rule, a restraint

on what is called in habeas corpus practice ‘abuse of the writ’.”
2 Habeas & Prison Litigation Case Law Update, number 2, July 1996 • a publication of the Federal Judicial Center

Quoting McCleskey v. Zant, 499 U.S. 467 (1991), the Court

explained that “‘the doctrine of abuse of the writ refers to a

complex and evolving body of equitable principles informed

and controlled by historical usage, statutory developments,

and judicial decisions.’ . . . The added restrictions which the

Act places on second habeas petitions are well within the

compass of this evolutionary process, and we hold that they do

not amount to a ‘suspension’ of the writ contrary to Article I,

§ 9.”

The Court therefore dismissed for want of jurisdiction the

petition for writ of certiorari. It denied the petition for an

original writ of habeas corpus, finding that petitioner’s claims

did not satisfy “the requirements of the relevant provisions of

the Act, let alone the requirement [of the Court’s Rule 20.4(a)]

that there be ‘exceptional circumstances’ justifying the issuance of the writ.”

Felker v. Turpin, No. 95-8836 (U.S. June 28, 1996)

(Rehnquist, C.J.).

Courts of Appeals

Tenth Circuit holds that habeas reform act’s certificate of

appealability is required in pending noncapital case because the standard for issuance is the same as for

certificate of probable cause under former law. Petitioner

moved for a certificate of probable cause pursuant to 28 U.S.C.

§ 2253 on Feb. 9, 1996, to appeal the Feb. 1 denial of his

§ 2254 petition. Section 102 (amending § 2253) of the Antiterrorism and Effective Death Penalty Act (effective April 24,

1996), requires a state prisoner appealing denial of a § 2254

petition to obtain a “certificate of appealability” instead of a

certificate of probable cause. In deciding whether § 102

should be applied to the case before it, the court cited Landgraf

v. USI Film Products, 511 U.S. 244 (1994), which it concluded

“mandates that if Congress does not prescribe the scope of a

statute, we apply intervening civil legislation to pending cases

unless it would operate retroactively.”

Since § 102 does not contain an effective date provision or

clear language stating that it applies retroactively, the court

said it must apply the new amendments to petitioner’s application unless to do so would have retroactive effect. The court

examined the law before and after April 24, 1996, and found

that the required “substantial showing of the denial of a federal

right” to obtain a certificate of probable cause was the same as

§ 102’s required “substantial showing of the denial of a constitutional right” to obtain a certificate of appealability. Because

the court has “always read the [earlier] standard to require a

habeas petitioner to make a substantial showing of the denial

of a federal constitutional right,” it concluded that § 102

simply codifies the earlier standard. Therefore, application of

§ 102 to petitioner’s request for a certificate of probable cause

“would not constitute retroactive operation of a statute under

Landgraf.” (The court stressed in a footnote that it

“express[ed] no opinion regarding the retroactivity concerns,

if any, raised by the Act’s requirement that an appeal may not

be taken from the final order in a proceeding under 28 U.S.C.

§ 2255 unless a circuit judge issues a certificate of appealability.”) Considering petitioner’s application as a motion for a

certificate of appealability, the court concluded that he had

“failed to make a ‘substantial showing of the denial of a

constitutional right’ as required under 28 U.S.C. § 2253 as

amended by § 102.”

Note: The court disagreed with the Ninth Circuit’s ruling in

Williams v. Calderon, 83 F.3d 281 (9th Cir. 1996) (see Habeas

& Prison Litigation Case Law Update, June 1996, No. 1), that

the standard for obtaining a certificate of appealability “is

more demanding than the standard for obtaining a certificate

of probable cause.”

Lennox v. Evans, No. 96-6041 (10th Cir. June 24, 1996)

(Baldock, J.).

In two other pending noncapital appeals, the Tenth Circuit

concluded that the new law should not be applied under the

circumstances of each case. See Edens v. Hannigan, No. 94-

3352 (10th Cir. June 20, 1996) (Ebel, J.) (defendant filed his

§ 2254 petition on Nov. 16, 1992, and his notice of appeal on

Oct. 12, 1994, and a certificate of probable cause was issued on

Oct. 17, 1994, “all well before the new habeas corpus amendments were enacted. Under these facts we conclude that the

new law does not apply to this case.”); Bradshaw v. Story, 86

F.3d 164, 166 (10th Cir. 1996) (“even if §102 applies to

pending cases, we conclude no certificate of appealability is

required here because the instant appeal is from a final order

denying a § 2241 petition, which is neither a ‘final order in a

habeas corpus proceeding in which the detention complained

of arises out of process issued by a State court’ nor a ‘final order

in a proceeding under section 2255,’” see 28 U.S.C.

§ 2253(c)(1)(A) and (B)).

District Courts

District court finds that amended habeas statutes do not

have retroactive effect and should be applied to all petitions pending on date of enactment. A state prisoner’s

petition seeking habeas corpus relief from his first-degree

murder conviction and sentence of death had been pending in

the district court since 1993. After the signing of the Antiterrorism and Effective Death Penalty Act of 1996 on April 24,

1996, the court had to determine whether to apply the habeas

statutes as amended by the Act. The special procedures for

capital cases in section 107 of the Act (codified at new Chapter

154, 28 U.S.C. §§ 2261–2266), could not be applied because

the state procedures in this case did not meet the requirements

of § 2261. However, the provision of the Act specifying that

Chapter 154 “shall apply to cases pending on or after the date

of enactment of this Act,” would be considered by the court in

deciding whether the existing habeas statutes as amended by

the Act should be applied to this petition.

The court found that the purpose and structure of the Act,

as well as the legislative history, indicated that “Congress

intended that the amendments take effect at the same time
Habeas & Prison Litigation Case Law Update, number 2, July 1996 • a publication of the Federal Judicial Center 3

chapter 154 became operative: on the date of enactment.” In

particular, the court noted several instances in which “chapter

154’s provisions are dependent upon the application of the

amended versions” of the existing habeas statutes and found

it “unlikely that Congress intended for the amended versions

of §§ 2244, 2253, and 2254 to affect only cases falling under

chapter 154.” In all probability, the court said, Congress found

it necessary to state expressly the effective date of the provisions of chapter 154 because the chapter relied on a state’s

willingness to conform to the law’s newly announced standards regarding appointment and funding of counsel. “The

specific language stating the scope of the chapter’s application

was necessary to negate the inference, created by the statutory

language, that the new chapter only affected future state

cases.” By contrast, the amended statutes were not dependent

upon a state’s adoption of any standards; “therefore, Congress

could safely presume that the amendments also would ‘apply

to pending cases,’ because . . . that is the norm for ‘remedial

statutes.’”

With reference to whether the amendments would have

retroactive effect and, therefore, should not be applied to

pending cases, the court held that under the test of Landgraf

v. USI Film Products, 511 U.S. 244 (1994), “vested rights and

past transactions” were not affected by the changes to the

habeas law. It observed that “statutes delineating the scope of

a state prisoner’s habeas corpus action are of the ‘prospectiverelief’ type” and said there could “be no doubt that a

petitioner’s requested relief is prospective in nature.” The

court found no common law doctrine that would lead to a

different conclusion. Quoting Landgraf, the court emphasized

that “[w]ithout a statutory or common law right at stake, a

newly enacted statute is not deemed to ‘operate “retrospectively” merely because it is applied in a case arising from

conduct antedating the statute’s enactment, or upsets expectations based in prior law.’” Thus, the court held that it would

apply the amended statutes and ordered reinstated the briefing

schedule it had previously specified with modifications in

filing deadlines.

Leavitt v. Arave, No. CIV. 93-0024-S-BLW (D. Idaho May 31,

1996)(Winmill, J.). But cf. Warner v. U.S., LR-C-96-220 (E.D.

Ark. May 10, 1996) (Eisele, J.) (citing Landgraf, supra, concluding that because defendant’s second § 2255 motion was

filed before April 24, 1996, and § 105 of the Act did not state

that amendments to 28 U.S.C. § 2255 were to be applied either

retroactively or to cases pending at time of enactment, it was

not necessary to consider what effect, if any, the Act might

have on this case).

District court declares unconstitutional as applied the

Act’s requirement that § 2254 petition must be filed within

180 days after final state court affirmance of conviction

and sentence. The district court found that under new 28

U.S.C. § 2263, petitioner was barred from filing a federal

habeas petition because he did not file within “180 days after

final State court affirmance of [his] conviction and sentence

on direct review,” which occurred in 1994. The court further

found that the additional thirty-day extension of time provided by § 2263(b)(3) did not help petitioner because that

period could not be added after the 180-day period had

completely expired.

Citing the Suspension Clause of the Constitution and

Swain v. Pressley, 430 U.S. 372 (1977), which interpreted that

clause, the court declared § 2263 an unconstitutional suspension of the writ as applied. “The Court finds that § 2263

infringes on the privilege of habeas corpus in this case because

prior to its passage, the petitioner would not have been time

barred, yet upon its passage he was immediately time barred;

the statute provides for no safe harbor or special exception.

The law would require the petitioner, prior to the passage of

§ 2263, to have anticipated this effect. Section 2263 in the

instant case is inadequate to test the legality of the petitioner’s

conviction and completely prevents any consideration of the

equities of the case; therefore, § 2263 violates the suspension

clause and is unconstitutional as applied. The Court thus

interprets the Act’s 180-day limitations period as commencing

for purposes of this case on April 24, 1996.” The July 1, 1996,

deadline previously set for the filing of petitioner’s § 2254

motion would remain in effect.

Breard v. Angelone, 926 F. Supp. 546, 547–48 (E.D. Va. 1996).

District court rules that Act’s capital case provisions do

not apply to pending case where state plan did not meet

Act’s requirements for post-conviction counsel and judicial economy would be thwarted. Petitioner had been

sentenced to death in Tennessee and had filed a habeas

petition before enactment of the Antiterrorism and Effective

Death Penalty Act of 1996. The court concluded that the Act

should not be applied here for two reasons. First, “[a]lthough

Tennessee law provides for the appointment of counsel for

indigent prisoners seeking habeas relief, this law insufficiently

ensures the competency of such counsel. Based on the language of [28 U.S.C.] § 2261(b) of the Act, the Court concludes

that this portion of the Act will not apply to Tennessee capital

cases until the state satisfies the prerequisite set forth in

§ 2261(b).”

Second, the court decided that § 2262 “should not be

construed to apply to cases that are currently the subject of

evidentiary hearings in federal district court.” The language of

§ 2262(a) and (b) “suggests that once the Act is implemented,

a prisoner at any stage of the habeas review process may

recommence the review process by filing a new habeas corpus

application. Such an application would then be reviewed in

accordance with the Act.” If this provision were interpreted to

apply to cases such as this, in which the court “has conducted

an evidentiary hearing and has completed review of thirty

distinct claims for habeas relief, then the very judicial system

that had almost completed an arduous review of the

petitioner’s claims would be forced to start over from the

beginning and reanalyze each of the petitioner’s claims under

the revised Act. Such a reading of the Act would conflict with
4 Habeas & Prison Litigation Case Law Update, number 2, July 1996 • a publication of the Federal Judicial Center

the very goal of judicial economy that the Act seeks to

promote.” Thus, the court read “the language of Section

107(c), pertaining to the statute’s effective date, to define

‘pending’ cases as those in which no federal district court has

commenced habeas review as of the enactment of the Act.”

Austin v. Bell, No. 3:86-0293 (M.D. Tenn. May 8, 1996)

(Nixon, C.J.).

District court holds that Rule 22(b) does not provide it

with authority to rule on petitioner’s motion for a

certificate of appealability. The court dismissed petitioner’s

habeas petition on June 6, 1996. Petitioner then filed a Motion

for Issuance of Certificate of Appealability, pursuant to 28

U.S.C. § 2253(c)(1), as amended by § 102 of the Antiterrorism and Effective Death Penalty Act of 1996. The recently

amended text of § 2253(c)(1)(A) provides that an appeal from

a final order “in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court” may not be taken “[u]nless a circuit justice or judge

issues a certificate of appealability.” Looking at the plain

language of the statute, the court said “it seems clear that

the Court lacks the ability to rule on petitioner’s present

motion.”

However, the Act also amended Fed. R. App. P. 22(b) to

provide that “an appeal by the applicant for the writ may not

proceed unless a district or circuit judge issues a certificate of

appealability pursuant to section 2253(c).” After finding that

“the legislative history shines absolutely no light on this

patently apparent conflict in the Act,” the court concluded

that “[s]ince Rule 22(b) requires that applications for certificates of appealability be processed in accordance with

§ 2253(c), and as a district judge has no authority to rule on

such applications under § 2253(c), . . . Rule 22(b) does not

provide [the court] with the authority to rule on petitioner’s

motion for a certificate of appealability.” The court noted its

disagreement with Houchin v. Zavaras, 924 F. Supp. 115 (D.

Colo. 1996) (district court has authority under Rule 22(b) to

issue certificate) (see summary in Habeas & Prison Litigation

Case Law Update, No. 1, June 1996). Admitting that its

conclusion “is not free from doubt,” the court denied the

motion and ordered it forwarded to the court of appeals.

Parker v. Norris, Civil No. PB-C-96-143 (E.D. Ark. June 14,

1996) (Eisele, J.).

District court finds that second petition for writ of

habeas corpus constitutes an abuse of the writ under both

former and amended law. Because petitioner’s second habeas

petition was pending on April 24, 1996, and the district court

was uncertain whether amendments to 28 U.S.C. § 2244 were

to be applied retroactively, it analyzed the issue of whether

petitioner had abused the writ under both pre- and post-Act

standards. The court first concluded that the petition must be

dismissed pursuant to pre-Act law and then considered the

amended standards. It noted that the petitioner raised issues

in his second application that were not presented in his first

petition and, under the amended version of § 2244, had to

satisfy one of two alternatives to prevent dismissal for abuse.

The court held that petitioner could not satisfy the first

alternative because he failed to make “any allegation that a

new rule of constitutional law entitles him to habeas relief.”

§ 2244(b)(2)(A). Petitioner also failed to meet either prong of

the second alternative set out in § 2244(b)(2)(B)(i) and (ii).

Thus, § 2244 as amended mandated dismissal of the petition

as a second and successive petition that abuses the writ.

Armstead v. Parke, No. 3:95-CV-0776 AS. (N.D. Ind. June

10, 1996).
Habeas & Prison Litigation Case Law Update, number 2, July 1996 • a publication of the Federal Judicial Center 5

PRISON LITIGATION

Courts of Appeals

Fifth Circuit holds that Prison Litigation Reform Act

(PLRA) is not yet triggered in litigation over 1983 consent

decree governing Louisiana prisons. The Louisiana Department of Public Safety and Corrections challenged the district

court’s jurisdiction to issue an order in 1995 modifying a 1983

consent decree by reinstating nine state prisons that had

previously been released from compliance with the decree.

The department contended that a sunset clause in the decree

was activated on November 1, 1989, terminating the court’s

jurisdiction as a matter of law. Therefore, it argued, the court

lacked authority to enter the 1995 reinstatement order.

The Fifth Circuit affirmed the reinstatement order and

returned the case to the district court for further proceedings.

In doing so, the court noted that it had reviewed the PLRA and

briefs on the applicability of the Act submitted by the parties

and concluded that the Act had not yet been triggered in the

case. Citing 18 U.S.C. § 3626(a)(1) as amended by the PLRA,

which sets out criteria for the granting of prospective relief in

prison reform litigation, the appellate court found that the

district court had not fashioned such relief. “Instead, we

understand the 1995 Order to have brought the nine previously released institutions back within the court’s continuing

jurisdiction so that it may examine whether prospective relief

is necessary to avoid constitutional violations from occurring

in those institutions.” The Fifth Circuit emphasized, however,

that in the future if the district court “should find a violation

of a ‘Federal right,’ then any remedy it might fashion must

conform to the standards set forth in the Act.”

Williams v. Edwards, No. 95-30835 (5th Cir. June 19, 1996)

(Wiener, J.).

Tenth Circuit rules that PLRA amendments to in forma

pauperis statute do not apply to appeals filed before April

26, 1996. After reviewing the Act, the court of appeals

concluded that the amendments to 28 U.S.C. § 1915 do not

apply “when, as in this case, the prisoner/appellant filed his

notice of appeal before April 26, 1996, the date President

Clinton signed the Act into law.” The court said it did not

consider under what circumstances, if any, the amendments to

§ 1915 would apply if a prisoner initiated action in district

court before April 26, 1996, but filed notice of appeal after that

date.

White v. Gregory, No. 95-1215 (10th Cir. June 21, 1996)

(Brorby, J.).

District Courts

District court grants preliminary injunction and, in accordance with the PLRA, appoints special master to ensure

city’s compliance. Based on unrefuted affidavits of plaintiffs—current and former prisoners at the District of

Columbia’s Lorton Correctional Complex—the district court

found that they are likely to succeed in their claim, instituted

on March 31, 1994, that the city’s failure to enforce its own

nonsmoking policy in the correctional facility violated the

plaintiffs’ Eighth Amendment rights. The court “determined

that the most efficient way to ensure that the City complies

with this Court’s [preliminary injunction] Order is to appoint

a disinterested and neutral Special Master . . . in accordance

with the Prison Litigation Reform Act.” It directed both parties

to submit a list of not more than five persons to serve as special

master. The court found “that the action it has taken is

consistent with” the PLRA.

Crowder v. Kelly, No. CIV. A. 94-702 (D. D. C. May 21, 1996)

(Sporkin, J.).

District court defers ruling on petition for leave to

proceed in forma pauperis and grants plaintiff time to

submit amended complaint and properly completed IFP

petition. The district court found that plaintiff’s original 42

U.S.C. § 1983 complaint failed to state a claim upon which

relief could be granted. The court granted him two months to

submit an amended complaint. It cautioned that the amended

complaint would be dismissed with prejudice pursuant to 28

U.S.C. § 1915, as amended by the PLRA, if it failed to state a

colorable claim. The court observed as well that the plaintiff’s

petition to proceed in forma pauperis was not supported by a

properly completed copy of the court’s new application, which

conforms to the requirements of the PLRA regarding certification of the plaintiff’s prisoner account. It deferred ruling on the

IFP petition and directed the clerk to provide the plaintiff with

the court’s new form.

Brown v. McBride, No. 3:96-CV-297 RM (N.D. Ind. May 20,

1996) (Miller, J.).

Unpublished opinions

[Although we recognize that the precedential value of unpublished decisions and the rules and practices for citing thereto

may vary among the courts, we are reporting unpublished

opinions and orders in order to provide the most complete

picture possible of the issues being litigated under the new

legislation.]

District courts dismiss in forma pauperis petitions

without prejudice because of failure to comply with PLRA

filing fee requirements. On March 27, 1996, plaintiff filed a

motion for leave to proceed in forma pauperis without prepay-
6 Habeas & Prison Litigation Case Law Update, number 2, July 1996 • a publication of the Federal Judicial Center

ment of fees and costs. On April 15, 1996, the district court

directed plaintiff to pay the $120 filing fee or submit a new IFP

petition showing plaintiff’s inmate account statement for the

preceding six-month period, properly certified by the appropriate prison official. Plaintiff complied with the court’s order

on May 31, 1996. Noting that the plaintiff had submitted “all

of the information required under the law in effect before April

26, 1996,” but had failed to comply with the PLRA, which was

effective on and after that date, the court denied the plaintiff’s

motion without prejudice. “In the event plaintiff decides to

proceed in the case, he must comply with all the provisions of

the Act.”

Kahn v. Malinov, No. CIV.A. 96-2501 (E.D. Pa. June 6, 1996)

(DuBois, J.).

In the other case, although the district court “cannot see

how the plaintiff can prevail on his due process claim” in his

civil rights suit, it dismissed the action without prejudice “so

that plaintiff may refile it after deciding whether his claim is so

meritorious as to support his expenditure of $120 on the filing

fee.” Emphasizing that pursuant to the PLRA, “henceforth

even in forma pauperis plaintiffs must pre-pay a portion of the

fee and are obligated to pay off the balance as soon as they

are able,” the court warned that “should plaintiff decide to

refile this action, he must pay $120 even if his complaint is

dismissed as frivolous or if he otherwise loses on the merits.”

The court noted that under amended 28 U.S.C. § 1915(b)(1),

plaintiff would have to pay “an initial partial filing fee of

$6.32” (20% of the average monthly balance in his prison

account for the last six months), and then “his prison account

[would] be docked until he has paid the entire $120 filing

fee.”

Spencer v. Winbush, No. CIV.A. 96-3729 (E.D. Pa. May 29,

1996) (Vanartsdalen, J.).

District court dismisses complaint and IFP petition

without prejudice because of plaintiff’s failure to exhaust

administrative remedies. Observing that the PLRA requires

a plaintiff to exhaust “such administrative remedies as are

available” before filing an action concerning prison conditions

(42 U.S.C. § 1997e(a) as amended), the court said the plaintiff

failed to comply with this provision. The complaint stated that

the plaintiff did not “use the prisoner grievance procedure to

seek relief” because he “was in fear of [the] grievance falling

in the wrong hands.” The court dismissed the action and the

motion to proceed in forma pauperis without prejudice.

Brooks v. Superintendent Lunk of Div. 10, No. 96C3221 (N.D.

Ill. June 5, 1996) (Shadur, J.).
Habeas & Prison Litigation Case Law Update, number 2, July 1996 • a publication of the Federal Judicial Center 7

Videoseminar on Habeas Developments

The Federal Judicial Center, in conjunction with ALI–

ABA, will conduct a national videoseminar on “New

Developments in the Federal Law of Habeas Corpus” on

September 12, 1996, from noon to four p.m., e.d.t. The

program will originate from the Center’s studio in the

Thurgood Marshall Federal Judiciary Building and will

be offered at forty sites across the country.

Title I of the Antiterrorism and Effective Death Penalty Act, enacted in April of this year, is having farreaching effects on how federal courts handle habeas

corpus petitions, particularly where the death penalty

has been imposed. The conference will begin with an

overview of the new law, followed by sessions dealing

specifically with retroactivity issues, constitutionality

concerns, the federalism impact of the new law, and what

remains of preexisting judicial standards. The videoseminar will bring judges, practitioners, staff attorneys,

and law clerks up to date on the issues raised by the new

law and the court cases interpreting it.

We have assembled a faculty of national experts on

federal habeas corpus to analyze the new provisions and

how the courts are interpreting them. The program will be

moderated by Robb Jones, director of the Center’s Judicial

Education Division. The faculty will include James

Coleman of Duke University, Barry Friedman and Nancy

King of Vanderbilt University, Leon Friedman of Hofstra

University, Joseph Hoffmann of Indiana University, James

Liebman of Columbia University, Ira Robbins of American University, and Larry Yackle of Boston University.

Federal judges on the faculty will include District Judge

Rya Zobel (the Center’s director) and Eleventh Circuit

Judge Edward Carnes.

The program will be available on videotape by early

October to anyone unable to attend the program on

September 12. Courts that have their own satellite downlink equipment and wish to receive the program should

contact Robb Jones or Denise Neary at the Center at (202)

273-4059.
Habeas & Prison Litigation Case Law Update, number 2, July 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 3, Sept. 1996

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Retroactivity

Second Circuit holds that Antiterrorism and Effective

Death Penalty Act of 1996 should not be applied retroactively to noncapital habeas appeal. Petitioner’s appeal of the

district court’s denial of his habeas petition was argued in the

appellate court on March 29, 1996. On May 3 the appellate

court vacated the district court’s order and remanded with

instructions to grant the petition and discharge petitioner

from prison. See Boria v. Keane, 83 F.3d 48, 55 (2d Cir. 1996).

The state petitioned for rehearing, arguing that the Antiterrorism and Effective Death Penalty Act of 1996 (hereafter

AEDPA), signed into law April 24, 1996, applies to this case

and would change the result.

The court rejected the state’s arguments and reaffirmed its

earlier holding. “[A]pplication of the new statute to these

circumstances would be retroactive” because it would attach

new legal consequences to events completed before its enactment. “Because application of the new statute to this case

would be retroactive, the next step is to discern whether

Congress intended the new statute to apply retroactively. . . .

While Congress has spoken clearly in some portions of the

new statute with respect to the application of the statute to

pending cases, . . . in the context of non-capital habeas cases

the statute’s silence is striking. This silence, coupled with the

presumption against retroactivity, leads us to hold that the

new statute does not apply to this case.”

 Boria v. Keane, 90 F.3d 36, 37–38 (2d Cir. 1996) (per

curiam). Cf. Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996)

(where habeas petition was filed and rejected in district court

and appealed before April 24, 1996, “we need not digress to

determine the effect of [§ 106 of the AEDPA] on this pending action, filed, as it was, before the amendments were

enacted”).

Second Circuit holds that one-year time limit provision

of the AEDPA does not apply to petition filed before Act’s

effective date, but that the certificate of appealability

provision does. “Section 101 of the AEDPA amends 28 U.S.C.

§ 2244 to require that habeas petitions brought under 28

U.S.C. § 2254 be filed no later than one year after the completion of state court direct review, with certain exceptions not

pertinent to the pending case. . . . Reyes filed his habeas

petition in the Southern District on July 13, 1994, more than

one year after leave to appeal to the New York Court of Appeals

from the affirmance of his state court conviction was denied in

1989. . . . In this case, it would be entirely unfair and a severe

instance of retroactivity to apply to Reyes the new requirement

of the AEDPA that a habeas petition be filed within one year

after completion of state court direct review where that period

ended before the effective date of the Act.”

The court also had to determine whether to apply the Act’s

new provisions for a “certificate of appealability,” which

replaced the requirement for a “certificate of probable cause”

and will be codified at 28 U.S.C. § 2253(c). “The new requirement of a certificate of appealability (‘COA’) appears to make

no significant change in the standard applicable to the former

requirement of a certificate of probable cause (‘CPC’). . . . In

agreement with the Tenth Circuit, see Lennox v. Evans, 87 F.3d

431, 433–34 (10th Cir. 1996), we hold that the substantive

standard for a COA is the same as the standard for the prior

CPC. But see Williams v. Calderon, 83 F.3d [281,] 286 [(9th Cir.

1996)] (stating, without discussion, that COA standard is

‘more demanding’ than CPC standard).” The court also concluded that the new requirement in § 2253(c)(3), that the

COA “indicate which specific issue or issues satisfy the showing required” of the denial of a constitutional right, should

apply to a habeas petition filed before the effective date of the

AEDPA. “This is well within the category of procedural

changes that pose no issue of retroactivity.”

If a petitioner makes a motion for a certificate of probable

cause, the court held that it should be treated as a motion for

a certificate of appealability “[a]s long as a prisoner’s request

for a CPC meets the substantive and procedural requirements

of the new COA.” Treating petitioner’s request for a CPC here

as a request for a COA, the court concluded that one of his

claims presented a substantial issue warranting a COA and

granted the COA as to that issue.

Reyes v. Keane, 90 F.3d 676, 678–81 (2d Cir. 1996).

Tenth Circuit applies “gatekeeper” mechanism for second or successive habeas petitions to petition filed after

the AEDPA became effective. A death row prisoner’s habeas

petition was denied in the district court and the denial was

affirmed by the appellate court in 1995. After his petition for

writ of certiorari was denied by the Supreme Court on June 3,

1996, he filed in the appellate court an application for an order

authorizing the district court to consider his second petition,
2 Habeas & Prison Litigation Case Law Update, number 3, September 1996 • a publication of the Federal Judicial Center

pursuant to the new “gatekeeper” provision in 28 U.S.C.

§ 2244(b)(3), as amended by the AEDPA. Petitioner also

challenged whether the AEDPA should even apply to his case.

The court held that the Act did apply and that the application would be denied because petitioner had not made the

required showing. “Because the 1996 Act was already in place

at the time of Hatch’s filing with this Court, the application of

the 1996 Act to his case is not retroactive, and thus does not

implicate the Ex Post Facto Clause.” As to the substance of the

petition, the court held that “Hatch has not made a ‘prima facie

showing that [his] application satisfies the requirements of’

[amended § 2244(b)(3)(C)]. . . . Accordingly, the Application

for Order Authorizing Consideration of Successive Petition

for Writ of Habeas Corpus is DENIED.” The court added that

“[n]o petition for rehearing nor suggestion for rehearing en

banc will be entertained. . . . § 106(b)(3)(E) (noting that the

grant or denial of an authorization by a court of appeals to file

a successive application cannot be the subject of a petition for

rehearing in the court of appeals) (to be codified at 28 U.S.C.

§ 2244(b)(3)(E)).”

Hatch v. Oklahoma, No. 96-727 (10th Cir. Aug. 6, 1996)

(per curiam).

District court holds that noncapital provisions of the

AEDPA should not be applied retroactively, but analyzes

petition under old and new law in light of the “uncertain

state of the law.” After defendant exhausted his state court

appeals he applied for a writ of habeas corpus in the district

court in 1993. His application “proceeded along a tortuous

path” and a hearing on the merits was not held until February

1996. Before a decision was reached the AEDPA was signed

into law and the district court had to decide whether to apply

the relevant new provisions, which in this case were the

amendments to 28 U.S.C. § 2254 in the Act’s §104. (Note:

Although defendant had been sentenced to death, § 107 of the

AEDPA was found not to apply.)

Applying the test from Landgraf v. USI Film Prods., 511 U.S.

244 (1994), the court concluded that “Congress did not

intend § 104 of the AEDPA to apply to actions pending on the

date of its enactment.” Following the maxim that “where

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,” the court

concluded “that because §107 [of the Act] contains an explicitly retroactive provision, and because §104 contains no

retroactive provision, Congress intended the latter to have

only prospective effect. Accordingly, because Cockrum’s application was pending on the date that the AEDPA was signed

into law, it is found that §104 does not apply to this action.”

However, the court noted that several courts have reached

different conclusions regarding whether all or part of the

AEDPA should be applied retroactively and that the Fifth

Circuit had not decided this issue. “In light of this uncertainty,

it would be imprudent to fail to consider the AEDPA altogether in this opinion. Thus, Cockrum’s claims will be analyzed first under pre-AEDPA law, and second, in the alternative, his claims will be evaluated under the AEDPA.”

The court determined that petitioner was entitled to relief

under either law because of ineffective assistance of counsel

at the penalty phase of his trial. New 28 U.S.C. § 2254(e)(1)

states that “a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by

clear and convincing evidence.” The court concluded that,

at the evidentiary hearing in February, petitioner showed

by clear and convincing evidence that the factual findings

underlying the state court’s rejection of his ineffective assistance of counsel claim were incorrect, thus rebutting the

presumption of correctness of the state court findings under

new or old law.

The state argued that the evidence from the February

hearing should not be used in this decision because petitioner

would not have been entitled to an evidentiary hearing under

amended § 2254(e)(2). The court disagreed, finding that “the

AEDPA does not undo the previous ruling that an evidentiary

hearing should be held, nor require evidence already received

in such a hearing to be disregarded.” The evidence showed

that the state court proceedings “resulted in a decision that . . .

involved an unreasonable application of clearly established

Federal law, as determined by the Supreme Court of the United

States,” see § 2254(d)(2) (as amended), and the court issued

a writ of habeas corpus ordering the release of petitioner

unless the sentence of death is vacated and a new punishment

hearing is initiated within 90 days.

Cockrum v. Johnson, No. 6:93 CV 230 (E.D. Tex. July 25,

1996) (Justice, J.).

District court holds that habeas amendments do not

apply to § 2254 action that was submitted and argued well

before date of enactment. “This petition was filed October

12, 1994, and the matter was fully submitted following oral

argument in July 1995. Consequently, neither party complied

with or relied upon any provision of the recently enacted

amendments to 28 U.S.C. § 2254 contained in the Antiterrorism and Effective Death Penalty Act of 1996 . . . (Apr. 24,

1996). The 1996 amendments were enacted long after this

petition was filed, briefed and argued, and the new provisions

do not apply explicitly to a petition such as this one which was

filed before enactment. Furthermore, the 1996 amendments

do not provide an effective date for the new provisions

governing §2254 petitions which might apply in this case.

This Court agrees with Chief Judge Aspen who decided, in a

petition brought under §2255, that the new amendment is not

retroactive apart from certain provisions involving capital

cases where retroactivity is explicitly provided. See United

States v. Trevino, No. 96 C 828, 1996 WL 252570, at n. 1 (N.D.

Ill. May 10, 1996).”

Grady v. Artuz, No. 94 CIV. 7362 at n.1 (S.D.N.Y. June 24,

1996) (Koeltl, J.). See also Wilkins v. Bowersox, No. 91-0861-

CV-W-5 (W.D. Mo. May 15, 1996) (Wright, J.) (where arguments were heard in Jan. 1996 and some issues were resolved
Habeas & Prison Litigation Case Law Update, number 3, September 1996 • a publication of the Federal Judicial Center 3

before Apr. 24, 1996, amendments to § 2254 would not be

applied); U.S. ex rel. Jones v. Barnett, No. 96 C 1274, slip op. at

2 (N.D. Ill. July 15, 1996) (Anderson, J.) (for state prisoner’s

habeas petition filed Feb. 13, 1996, “the amendment to section

2254 does not merely change the manner in which a federal

court analyzes the habeas petition. The amendment narrows

the standard of review habeas courts can give to questions of

law and fact decided by state courts. . . . Since the amended

section 2254(d) affects the quantum of protection the courts

afford the rights of the defendant, this court declines to apply

it retroactively.”).

Special Procedures in Capital Cases

District courts hold that California and Florida do not

qualify for the AEDPA’s special habeas procedures for

capital cases. California death row inmates filed a class action

suit against the state of California, seeking to stop the state

from claiming that it qualifies for the benefits of new Chapter

154 in Title 28 (§§ 2261–2266) because it satisfies the requirements for a “unitary review procedure” under § 2265. As the

court noted, “defendants have threatened to invoke chapter

154 in all federal court proceedings involving members of the

proposed class. Absent judicial relief from this Court, defendants’ threats to invoke Chapter 154’s expedited review provisions will effectively cause plaintiffs to forfeit rights to which

they are entitled under Chapter 153. . . . As a practical matter,

defendants’ assertions would thus secure for the State the

benefits of the Act, regardless of whether California actually

provides the competent counsel that states are required by

Congress to give plaintiffs as a quid pro quo for receiving such

benefits.”

The court allowed the suit to proceed as a class action, and

then found that the state did not qualify for Chapter 154’s

procedures. “California has a unitary review procedure, as that

term is defined in the Act. As explained below, however, the

Court also concludes that California’s alleged comprehensive

scheme fails to satisfy the remaining requirements of section

2265,” namely, a “rule of its court of last resort or by statute”

that provides a qualifying mechanism for the appointment and

compensation of competent counsel and “standards of competency for the appointment of such counsel.”

The court granted a preliminary injunction ordering that

“defendants, their agents, servants, employees and attorneys,

and all those in active concert with them ARE HEREBY RESTRAINED AND ENJOINED from trying or seeking to obtain for

the State of California the benefits of the provisions of Chapter

154 of Title 28, U.S. Code, in any state or federal proceeding

involving any class member.” However, the court also granted

a temporary stay of the order to allow plaintiffs time to apply

for a stay pending appeal.

Ashmus v. Calderon, No. C 96-1533 TEH (N.D. Cal. June 14,

1996 ) (Henderson, C.J.).

In Florida, a death row prisoner filed a motion to enjoin the

state “from invoking or asserting, in any state or federal

proceeding, that the State of Florida has complied with the socalled ‘opt-in’ provisions of Chapter 154,” and sought “a

judicial determination pursuant to the Declaratory Judgment

Act, 28 U.S.C. §§ 2201–2202, and 42 U.S.C. § 1983, that the

system of expedited habeas review may not be applied to either

himself or other similarly situated Florida death-row inmates.” However, because plaintiff had not yet moved for class

certification, the court considered the motion only as to the

individual plaintiff.

Because “Florida does not provide for a ‘unitary review’

process,” see 28 U.S.C. § 2265, the court examined whether

the state met the requirements of § 2261 “to provide competent counsel and reasonable litigation funding to indigent

capital prisoners in its state post-conviction proceedings.”

Although the court found that Florida has a “comprehensive

statutory framework for appointment of counsel in postconviction proceedings brought by all capital prisoners,” it

held that the state “does not have a statute or rule with a

mechanism for ensuring ‘competent counsel in State postconviction proceedings’ is appointed for indigent capital defendants, [and thus] cannot qualify as an ‘opt-in’ state under

Chapter 154 of the Act. See 28 U.S.C. §2261(b).” The court

also held that “any offer of counsel pursuant to Section 2261

must be a meaningful offer. That is, counsel must be immediately appointed after a capital defendant accepts the state’s

offer of post-conviction counsel. The present backlog of

unrepresented capital defendants who are in a position to seek

post-conviction review, demonstrates that Florida has not

made the requisite meaningful offer of counsel.”

The court granted plaintiff’s motion to the extent that it

enjoined defendants “from asserting against Plaintiff, in any

state or federal proceeding, that Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 . . . (codified as 28

U.S.C. §§ 2261–2266), applies to Plaintiff.”

Hill v. Butterworth, No. 4:96-CV-288-MMP (N.D. Fla. Aug.

7, 1996) (Paul, J.).
4 Habeas & Prison Litigation Case Law Update, number 3, September 1996 • a publication of the Federal Judicial Center

Prison Litigation

the prison, which the clerk’s office can then send to the prison.

After such authorization, the prison has the responsibility of

sending to the court a certified copy of the prisoner’s trust fund

account statement and the initial partial filing fee payment, as

well as the subsequent payments from the prisoner’s account

required by § 1915(b)(2), and “the failure of the [prison] to

send the statement or to remit any required payment shall not

adversely affect the prisoner’s appeal.” An appeal filed without

the required authorization and prepayment of fees will be

dismissed in thirty days unless within that time the prisoner

files the required authorization.

Leonard v. Lacy, 88 F.3d 181, 184–87 (2d Cir. 1996).

Second Circuit holds that PLRA fee requirements may

be applied to prisoners who filed notices of appeal before

the Act’s effective date. The Second Circuit considered the

effect of the PLRA’s filing fee requirements in four unrelated

cases involving notices of appeal and IFP motions filed by state

and federal prisoners. All four appellants filed their notices of

appeal before April 26, 1996. One filed a motion to proceed in

forma pauperis before that date; two filed IFP motions after the

effective date; and one acquired IFP status in the court of

appeals before the effective date because the status was

granted in the district court and not revoked.

Because the PLRA contains no effective date provision or

other indication that the filing fee requirements should be

applied to pending appeals, the court followed Landgraf v. USI

Film Prods., 511 U.S. 244 (1994), to decide whether the

requirements should be applied retroactively. “The rationales

outlined in Landgraf strongly indicate that the fee payment

obligations of the PLRA should be applied to appeals in which

the notice of appeal was filed before the Act’s effective date.

The fee payment obligations are essentially procedural . . . .

More significantly, the slight burden arising from application

of the PLRA requirements to pending appeals is entirely

avoidable. Even though a prisoner has filed a notice of appeal,

he has no obligation to pursue it, and once confronted with the

prospect of liability for filing fees, he may choose either to

accept that liability or withdraw his appeal.”

The court found that “the relevant event for purposes of

retroactivity is, at the earliest, the granting of leave to proceed

on appeal in forma pauperis. Neither the filing of the notice of

appeal nor the making of the i.f.p motion implicates settled

expectations or burdens prior conduct in ways that counsel

against application of the PLRA to pending appeals.” The

court noted that its decision conflicted with the Tenth Circuit’s

ruling in White v. Gregory, 87 F.3d 429 (10th Cir. 1996), that

the PLRA’s filing fee requirements did not apply where a notice

of appeal was filed before the Act’s effective date. The White

decision “contains no discussion of the issue, and we respectfully disagree with its conclusion.”

Proceedings In Forma Pauperis

Second Circuit holds that the obligation to pay filing fees

“will be imposed prior to any assessment of the frivolousness of the appeal.” The Second Circuit addressed a basic

issue arising under the Prison Litigation Reform Act of 1995

(“PLRA”): “whether a prisoner filing an appeal becomes liable

for appellate filing fees before or after his motion for leave to

appeal in forma pauperis has been adjudicated.” The court

considered the language of two subsections of 28 U.S.C.

§1915 as amended by the Act: §1915(a)(2), relating to the

prisoner’s trust fund account statement, “plainly applies to a

prisoner approaching a court and ‘seeking’ to proceed i.f.p.”

On the other hand, §1915(b)(1), which requires full payment

of any filing fee, “[a]rguably . . . applies only to a prisoner who

already has i.f.p. status, i.e., a prisoner who has been granted

such status in the district court with respect to his complaint

and has been continued in such status for purposes of his

appeal, or who has been granted such status by this Court.”

Such a construction “would produce a bizarre result” in

courts where “the decision to grant a motion to appeal i.f.p. is

usually made only after determining that the appeal surmounts the standard of ‘frivolousness.’ . . . [O]nly the prisoners who surmount the frivolousness standard would become

obligated for filing fees.”

The court decided that the phrase “brings a civil action or

files an appeal in forma pauperis” in §1915(b)(1) “can be read

to include both prisoners who have been granted i.f.p. status

and those who seek such status.” The Second Circuit also

considered § 1915A, which requires a court to review a prisoner complaint “before docketing, if feasible or, in any event,

as soon as practicable after docketing,” and to dismiss the

complaint if it is frivolous or otherwise lacks merit. It noted

that this screening procedure appears to be designed for

district courts since it refers to the review of a complaint, and

said that even in courts that delay docketing until frivolousness has been determined, “Congress likely did not intend the

section 1915A screening to insulate prisoners from liability for

filing fees for complaints determined to be frivolous.”

As to the requirements of §1915(b)(1) that a prisoner

plaintiff pay “any court fees required by law,” and of

§ 1915(b)(3) that the filing fee collected not exceed “the

amount of fees permitted by statute for the commencement of

a civil action or an appeal,” the court found that these

obligations apply to both the $5 filing fee required by 28

U.S.C. § 1917 and the $100 docketing fee mandated by the

Judicial Conference.

Finally, the Second Circuit established a procedure to

satisfy the requirements of § 1915(a)(2) that the prisoner

submit to the court a certified copy of his or her trust fund

account statement and § 1915(b)(1) that the court collect the

initial filing fee payment. It required the prisoner to submit to

the court an authorization for both tasks to be performed by
Habeas & Prison Litigation Case Law Update, number 3, September 1996 • a publication of the Federal Judicial Center 5

Finally, the court held that the appellant who had acquired

IFP status in the court of appeals through the continuation of

his IFP status granted in the district court could be subjected

to the PLRA’s requirements. It reasoned, first, that “the burdens of the PLRA are slight and entirely avoidable.” Second,

since no judicial time had been invested in reviewing the

merits of the appeal, the congressional purpose to deter

frivolous appeals “is significantly advanced by applying the

PLRA’s requirements to his appeal at this stage.” (The court

observed that “we might deem it inappropriate to apply the

Act” if judicial resources had already been expended, if the

appellant had expended “significant time and effort” in preparing an appellate brief, or “if this Court had granted a

motion to proceed on appeal i.f.p., a step that would normally

require judicial assessment of whether the appeal had sufficient merit to surmount the standard of frivolousness.”)

Third, requiring the appellant to choose between becoming

obligated for filing fees or withdrawing his appeal now “creates at most disappointment, not impairment of protectable

interests.”

The court ruled that it would dismiss the four appeals

unless within thirty days each appellant filed the authorization required by Leonard v. Lacy, supra. It cautioned appellants

that if they avoided dismissal by filing the authorization, they

would be obligated to pay the filing fees from their prison

accounts even if their appeals were subsequently dismissed.

Covino v. Reopel, 89 F.3d 105, 106–09 (2d Cir. 1996).

Second Circuit concludes that PLRA filing fee provisions do not apply to petition for extraordinary writ

directed at judge conducting criminal trial. A defendant in

a pending criminal prosecution filed a motion seeking to have

the trial judge withdraw from the case, and later filed a petition

for a writ of mandamus in the court of appeals, seeking to

compel the district judge to rule on the recusal motion and to

have the Second Circuit order reassignment of the case. The

petition was accompanied by an IFP motion, presenting the

court with “the issue of whether the new filing fee payment

requirements of the PLRA apply to a petition for an extraordinary writ.”

“Neither the text nor the legislative history of the PLRA

indicates whether a petition for a writ of mandamus is to be

considered a ‘civil action’” under amended 28 U.S.C.

§ 1915(a)(2). “Congress enacted the PLRA to curb the increasing number of civil lawsuits filed by prisoners . . . . It is

reasonable to assume that Congress wished to apply the

PLRA’s deterrent effect to prisoners’ complaints, regardless of

the type of pleading filed by the prisoner to obtain relief.”

Therefore, the PLRA “should normally apply” to a petition for

a writ that sought relief comparable to that which could be

obtained by filing a complaint against prison officials under 42

U.S.C. § 1983. However, “a petitioner for a writ of mandamus

directed to a judge conducting a criminal trial . . . is not

analogous to the lawsuits to which the PLRA applies. We will

therefore not apply our PLRA procedure to Nagy’s motion.”

In re Nagy, 89 F.3d 115, 116–17 (2d Cir. 1996).

Tenth Circuit holds that mandamus petition is covered

by amended § 1915 and that bar to IFP filings after three

previous dismissals of meritless claims applies retroactively. The prisoner filed a habeas corpus petition in district

court on April 2, 1996. On May 7, 1996, he filed in the court

of appeals a petition for a writ of mandamus under 28 U.S.C.

§ 1651(a), accompanied by an IFP motion, seeking prompt

resolution of his habeas petition. Analyzing the PLRA amendments to 28 U.S.C. § 1915, the Tenth Circuit decided that a

mandamus proceeding falls within the scope of the amended

IFP statute: “Allowing prisoners to continue filing actions as

they had before enactment of the amendments, merely by

framing pleadings as petitions for mandamus, would allow a

loophole Congress surely did not intend in its stated goal of

‘discourag[ing] frivolous and abusive prison lawsuits.’” Based

on the history and purpose of the PLRA, the court concluded

that a mandamus petition is a “civil action” under § 1915 and

that “complaint” in amended § 1915(a)(2) includes petitions

for extraordinary writs. This conclusion, the court said, would

cause it to dismiss the mandamus petition without prejudice

because the petitioner had not complied with the amended

statute. However, petitioner “faces a more serious barrier to

proceeding IFP: § 1915(g).”

Section 1915(g) bars a prisoner from bringing a civil action

or appeal IFP “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an

action or appeal . . . that was dismissed on the grounds that it

is frivolous, malicious, or fails to state a claim upon which

relief may be granted, unless the prisoner is under imminent

danger of serious physical injury.” The appellate court observed that “[a]s of 1981, [the petitioner] had filed between

600 and 700 complaints in state and federal courts, many of

which had been dismissed as malicious or frivolous.” Taking

judicial notice that he “has had three actions or appeals in

courts of the United States dismissed as frivolous or malicious,” the court stated that the petitioner “cannot proceed in

forma pauperis if § 1915(g) applies to suits dismissed prior to

its enactment.” Applying the Landgraf analysis, the court

determined that § 1915(g) can be applied retroactively because it “does not change the legal consequences of [earlier]

prisoner actions” but rather “imposes stricter requirements

for proceeding in forma pauperis in future actions.” Accord

Abdul-Wadood v. Nathan, No. 96-1074 (7th Cir. Aug. 2, 1996)

(Easterbrook, J.) (petitioner who had two previous complaints dismissed as frivolous before the PLRA took effect and

three more after “now has at least five strikes against him” and

§1915(g) applies).

Therefore, petitioner cannot proceed in forma pauperis

and may resubmit his petition only by paying the filing fee.

The court directed the clerk of court “not to accept from

[the petitioner] any further extraordinary writs in noncriminal matters, or appeals of judgments in civil actions or

proceedings, unless he pays the filing fees established by our

rules.”

Green v. Nottingham, 90 F.3d 415, 417–20 (10th Cir. 1996).
6 Habeas & Prison Litigation Case Law Update, number 3, September 1996 • a publication of the Federal Judicial Center

Second Circuit finds that PLRA does not apply to habeas corpus petitions. Following In re Nagy, supra, the appellate court analyzed whether a habeas petition or an appeal

from the denial of such a petition constitutes a “civil action”

under 28 U.S.C. § 1915(a)(2). It listed three reasons supporting its conclusion that Congress did not intend the PLRA to

apply to habeas petitions: (1) Nothing in the text of the PLRA

or its legislative history indicates such an intention; (2) it is

unlikely that Congress intended the PLRA’s elaborate procedures for collection of filing fees to apply to payment of the $5

filing fee required in habeas actions; and (3) Title I of the

Antiterrorism and Effective Death Penalty Act makes no

change in filing fees or in a prisoner’s obligation to pay the fees

in habeas cases.

Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996).

District court rules that sua sponte “screening” provisions of PLRA apply to IFP prisoner complaints filed

before April 26, 1996. Plaintiff’s 42 U.S.C. § 1983 complaint

was received by the district court’s pro se office on April 10,

1996. Since the PLRA amendments to 28 U.S.C. § 1915 do not

indicate an effective date, the court reviewed the requirement

of § 1915(e)(2) that the court dismiss a case at any time it

determines the action is frivolous, malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief

against a defendant who is immune from such relief. In

addition, the court pointed to new section 1915A, “entitled

‘Screening,’ requiring the Court to review prisoner complaints

before docketing, or as soon as practicable after docketing,”

and to dismiss complaints for the same reasons specified in

§ 1915(e)(2).

Although the district “has determined not to apply the Act’s

amendment to 28 U.S.C. § 1915(a)–(b), requiring prisoners to

pay the filing fee, to complaints filed before April 26, 1996,”

the court saw “no reason why the provisions providing for sua

sponte dismissal of claims that clearly fail to state a claim

should not apply to pre-April 26, 1996 complaints.” Applying

the screening provision to all complaints, regardless of when

they were filed, does not involve retroactivity, the court found.

“It is no different than applying amendments to the Federal

Rules of Civil Procedure to pending cases, whenever filed.”

The court dismissed the complaint without prejudice.

McCray v. Kralik, No. 96CIV.3891 (PKL) (AJP) (S.D.N.Y.

July 1, 1996) (Leisure, J.) (unpublished).

Appropriate Remedies for Prison

Conditions

District courts rule that PLRA’s automatic stay provision

violates separation of powers and due process clause.

Under 18 U.S.C. § 3626(b), as amended, defendants filed

motions in both the Western and Eastern Districts of Michigan

seeking immediate termination of a 1985 consent decree

entered by the Eastern District of Michigan. Portions of the

case had been transferred to the Western District of Michigan

in 1992 and 1993. Section 3626(b) entitles a defendant or

intervener in an action involving prison conditions to immediate termination of any prospective relief under certain

conditions, unless the district court makes written findings

that the relief remains necessary and is as limited as possible

to correct the violation. In addition, § 3626(e)(2) provides for

an automatic stay of any prospective relief that has already

been approved or granted, beginning on the thirtieth day after

a motion for termination has been filed.

To determine whether the relief granted under the decree at

issue conforms to the requirements of § 3626(b), the Western

District said it would have “to reconsider each provision of the

Decree and the associated plans and orders” that had been

issued since 1985. This would require time to review extensive

records and schedule hearings so that the parties would be

“given every opportunity to present their arguments to the

Court.” Consequently, the court said it could not decide the

motion to terminate within thirty days. Because of the scope

of the impact the stay would have on prior rulings and the

status of the case, and because of the automatic imposition, the

court ordered the parties to address its constitutionality.

The court first disposed of a nonconstitutional argument,

that pursuant to the supersession clause of the Rules Enabling

Act, 28 U.S.C. §§ 2071–2077, the automatic stay provision

does not take effect until and unless the Supreme Court

amends Fed. R. Civ. P 60(b) and 62(b). The court concluded

that “enforcement of the stay provision would not affect a

court’s authority to grant a relief from judgment or a stay in

its discretion. Thus, it can not be said that the stay provision

‘conflicts irreconcilably’ with” the rules.

The Western District then turned to the question of the

automatic stay’s impact upon separation of powers. Citing

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833

(1986), which listed several factors to consider when evaluating acts of Congress under an Article III standard, the court

found that Congress usurped an exclusively judicial role in

enacting the stay provision. “The power to decide substantive

issues of law, such as a motion to terminate the case, is a most

basic attribute of the Judiciary’s power under Article III.” The

automatic grant of the stay, even though temporary, with no

provision for a case-by-case determination, is “akin to the

issuance of a preliminary injunction, which even a court

cannot do without making a finding on the facts.”

The district court further found that the stay provision

violates separation of powers by altering a final judgment.

“[W]here appeals have been exhausted or the time for appeal

has elapsed or been waived, consent decrees become final

judgments.” The PLRA stay provision renders existing judgments inoperative, the court said, and the fact that the stay is

temporary relates only “to the extent to which the Act impermissibly modifies existing judgments.” The automatic stay

also contravenes the due process clause because it violates the

“vested rights doctrine.” The stay “takes from plaintiffs their

vested right in the judgment, which they have had since 1985,

without any process at all.” The court ordered that the stay

would not take effect pending its decision on defendants’

motion to terminate the consent decree.
Habeas & Prison Litigation Case Law Update, number 3, September 1996 • a publication of the Federal Judicial Center 7

The district court for the Eastern District of Michigan

concurred with the Western District that § 3626(e)(2) is

unconstitutional. It found that the automatic stay provision

“is not an attempt by Congress to limit the jurisdiction of

Article III courts. It is an encroachment by Congress into a

court’s final order, overturning it until a later date.” It held that

the prospective relief previously awarded under the consent

decree would not be stayed pending a determination of the

defendants’ motion to terminate.

Hadix v. Johnson, No. 4:92:CV:110 (W.D. Mich. July 3,

1996) (Enslen, J.); Hadix v. Johnson, No. 80-CV-73581-DT

(E.D. Mich. July 5, 1996) (Feikens, J.). Cf. U.S. v. Engler, 91

F.3d 144 (6th Cir. 1996) (table) (remanding consent decree

appeals for reconsideration in light of amended § 3626); U.S.

v. Michigan, 91 F.3d 145 (6th Cir. 1996) (table) (same).

District court holds PLRA’s immediate termination provision is constitutional and vacates consent decrees. The

district court granted defendants’ motion for immediate termination of consent decrees from 1978–1979 that governed

conditions for detainees awaiting plea, trial, sentencing, or

transfer in certain New York City-area jails. The court limited

its ruling to the application of 18 U.S.C. § 3626(a)(1), (b)(2),

and (b)(3) to the decrees.

The court first held that § 3626(b)(2) does not violate the

Rules Enabling Act. There is no direct conflict between

§ 3626(b)(2) and Fed. R. Civ. P. 60(b) because a district court

may still grant relief on a discretionary basis under the rule.

As to the constitutional claims, the court concluded that

the statute does not violate the separation of powers principle

regarding the reopening of final judgments. “Injunctions,

such as the Consent Decrees here, entail continuing, supervisory jurisdiction and therefore are not final judgments. . . .

Congress may legislate retroactively so as to modify the

prospective effects of a judgment that is final for appeal

purposes because this does not reopen the merits of the

judgment.” See also Plyler v. Moore, Civ. A. No. 3:82-876-2

(D.S.C. June 4, 1996) (bench ruling granting motion to

terminate eleven-year-old consent decree). Nor does the statute violate the separation of powers principle established in

U.S. v. Klein, 80 U.S. (13 Wall.) 128 (1872), by prescribing a

rule of decision without changing the underlying law.

“[W]hile Congress did not amend the substantive law with

respect to permissible prison conditions, it did change the law

governing the district court’s remedial powers. Under the new

law, courts must apply the same limitations on relief to consent

judgments as to litigated judgments.” Finally, the statute does

not violate separation of powers by divesting courts of remedial jurisdiction. While “seemingly cramped” by the new legal

standards and time constraints imposed, the courts nevertheless retain the ability under § 3626(b) “to enforce constitutional rights. Under § 3626(b)(3), a court may not vacate

prospective relief if it finds on the record that constitutional

violations exist and that the relief is appropriately tailored to

remedy the violation.”

Section 3626(b)(2) also does not violate equal protection

principles. Using a rational basis test because the PLRA

provisions granting immediate termination do not implicate a

prisoner’s right “to bring to court a grievance that the inmate

wished to present,” Lewis v. Casey, 116 S. Ct. 2174 (1996), the

court determined that although Congress could have modified the standards for consent decrees in all types of cases,

nothing required it to do so. “Therefore, Congress’ determination to single out prison reform litigation was within its

power.”

Due process arguments were equally unavailing. Because

the consent decrees “are not final judgments within the scope

of the vested rights doctrine,” the plaintiffs “do not have any

vested rights in the prospective effects” of the decrees. Nor do

the plaintiffs have a due process claim that the statute impairs

their contracts with the defendants. Since the federal government was not a party to the consent decrees, the “sovereign

acts” doctrine is not applicable. Therefore, rational basis

review is appropriate and under that standard, the PLRA

provisions are not “arbitrary and irrational.”

Acknowledging that the findings now required by

§ 3626(b)(2) were not made when the consent decrees were

entered into, the court observed that § 3626(b)(3) would

allow continuation of the relief provided by the decrees “if the

court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing

violation of the Federal right.” But the court did not have a

record before it on which it could make such findings, and it

denied an oral request by the plaintiffs, “seemingly joined by

the United States,” to postpone a decision on the motion to

terminate until a factual record of current conditions in New

York City jails could be created. “The statute provides for

‘immediate termination’ and based on the current record

before the Court, the defendants are entitled to vacatur of the

Consent Decrees.” The court shared some of the concerns

expressed by the Michigan district courts that declared the

automatic stay provision unconstitutional, but emphasized

that it did not need to decide the issue because it disposed of

the motion to terminate within the thirty-day time period

specified in § 3626(e). (See Hadix v. Johnson, supra.)

Benjamin v. Jacobson, No. 75 CIV 3073 (HB) (S.D.N.Y. July

23, 1996) (Baer, J.).

District court finds that compensation of a previously

appointed special master is not governed by the PLRA. On

December 11, 1995, the district court appointed a special

master pursuant to Fed. R. Civ. P. 53(b) to monitor compliance

with injunctive relief ordered to remedy violations of the

prisoner-plaintiffs’ constitutional rights. Defendants were ordered to pay the special master’s compensation and expenses

as a cost of suit. Following enactment of the PLRA, the special

master and his staff ceased work pending further direction

from the district court. The PLRA, at 18 U.S.C. § 3626(f)(4),

limits compensation of a special master to “an hourly rate not

greater than the hourly rate established under section 3006A

for payment of court-appointed counsel, plus costs reasonably

incurred by the special master,” and specifies that “[s]uch
Habeas & Prison Litigation Case Law Update, no. 3, Sept. 1996

Federal Judicial Center

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One Columbus Circle, N.E.

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compensation and costs shall be paid with funds appropriated

to the Judiciary.”

The court observed that § 3626 applies “with respect to all

prospective relief whether such relief was originally granted or

approved before, on, or after the date of enactment of this

title.” Section 3626(g)(7) defines prospective relief as “all

relief other than compensatory monetary damages,” and

§ 3626(g)(9) states that relief is “all relief in any form that may

be granted or approved by the court.” Thus, the first question

to be answered was whether appointment of the special master

constituted “relief.” Since the statutory definition of relief

shed no light on the issue, the court turned to the definition

in Black’s Law Dictionary, which focused on “the ultimate legal

form of remedy rather than the means of achieving the

remedy.” This distinction, the court said, was supported by the

court’s order, which distinguished between the remedies required to cure the constitutional deficiencies and the appointment of a special master. Therefore, the court held that the

term “relief” does not apply to the compensation of a previously appointed special master.

Coleman v. Wilson, No. CIV. S-90-520-LKK (E.D. Cal. July

12, 1996) (Karlton, J.).

Suits by Prisoners

District court holds that the PLRA does not apply retroactively to an award of attorneys’ fees earned before its

enactment; alternatively, plaintiff satisfied Act’s requirements. In 1993, plaintiff, a nonsmoking inmate, sued under

42 U.S.C. § 1983, alleging that correctional authorities had

been deliberately indifferent to the serious health risks nonsmokers face from ongoing exposure to environmental tobacco smoke. In February 1996, one month after a magistrate

judge concluded that plaintiff had demonstrated a likelihood

of success on the merits of his claim for permanent injunctive

relief, the defendant director of the Department of Correctional Services imposed a smoking ban in all buildings owned

and/or operated by the department, stating that “pending

inmate litigation, both locally and nationally on the issue of

second hand smoke are concerns that must be addressed.”

Thereafter, the district court concluded that defendants were

entitled to summary judgment on the merits of plaintiff’s

claim because they had rectified any Eighth Amendment

violations, but left open the issue of whether the plaintiff was

a prevailing party for purposes of an attorneys’ fee award.

Defendants argued that the PLRA “narrows the definition

of a prevailing party so that a prisoner’s attorney will be

compensated only for those fees reasonably and directly

incurred in proving an actual violation of a federal right,” and

that amended 42 U.S.C. § 1997e(d)(A) “abolishes the catalyst

theory upon which attorney’s fees may be awarded.” The court

noted that all of the action that triggered entitlement to

attorneys’ fees occurred before the Act was in effect and,

further, that the portion of the Act defendants relied on had no

stated effective date. Therefore, retroactive imposition would

cause “‘manifest injustice’ to lawyers like Plaintiff’s counsel

who have performed their ethical obligations to the courts

upon settled expectation premised upon precedent that if they

‘prevailed’ they would be compensated.”

Nevertheless, the district court went on to determine that,

if the PLRA did apply, plaintiff had made a sufficient showing

at the preliminary injunction hearing to satisfy the requirement of § 1997e(d)(A) that no attorneys’ fees be awarded

unless “directly and reasonably incurred in proving an actual

violation of the plaintiff’s rights.” Implementation of the

smoking ban resulted from the magistrate judge’s order

“which put Defendants on notice that continuance of their

past practice was obdurate. Consequently, I find that the

requested attorney’s fee was directly and reasonably incurred

in proving an actual violation of the plaintiff’s rights.”

Weaver v. Clarke, No. 4:CV93-3356 (D. Neb. June 18, 1996)

(Kopf, J.).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 4, Nov. 1996

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Retroactivity

En banc Seventh Circuit holds that amended § 2254 applies to habeas appeal filed and argued before AEDPA;

discusses review of state court decisions. Petitioner was

convicted of murder by a jury in Wisconsin in a bifurcated

trial. In the second phase of the proceeding, the jury had to

determine whether petitioner was insane at the time of the

murders, which would alter his place of confinement and

allow the possibility of future release. The jury found that

petitioner was not insane, and the judge sentenced him to life.

After the state courts rejected petitioner’s Sixth Amendment

claim that he had been improperly limited in cross-examining

a psychiatrist who testified for the state in the second phase,

he filed a habeas petition in federal court. The district court

denied the petition, and an appellate court panel heard oral

argument on petitioner’s appeal. Fifteen days later the Antiterrorism and Effective Death Penalty Act of 1996 was signed into

law. The appellate panel set the case for reargument before the

full court on the issue of whether to apply to pending cases

new 28 U.S.C. § 2254(d), which specifies the scope of federal

review of state court legal and factual determinations.

A majority of the en banc court held that new § 2254(d)

does apply. Because the AEDPA is silent as to the effective date

of §2254(d), the court followed the retroactivity analysis in

Landgraf v. USI Film Prods., 511 U.S. 244 (1994), under which

“‘the court must ask whether the new provision attaches new

legal consequences to events completed before its enactment.’

. . . Section 2254(d) does not attach new legal consequences

to the filing of petitions for habeas corpus, although some

other parts of the 1996 Act may do this.” The court reasoned

that, by limiting the scope of federal review of state court

decisions, § 2254(d) “affects the relation between federal and

state courts, rather than regulating the details of litigation.” It

is “the historical practice” that “legal changes that reduce the

willingness of federal courts to set aside judgments presumptively apply to existing judgments. . . . Current law normally

governs when statutes ‘speak to the power of the court rather

than to the rights or obligations of the parties,’ . . . [and] the

amended §2254(d) is designed to curtail collateral review and

augment the finality of judgments, which strongly implies

application to existing judgments. . . . We respectfully disagree

with the contrary conclusions of Edens v. Hannigan, 87 F.3d

1109, 1111 n.1 (10th Cir. 1996), and Boria v. Keane, 90 F.3d 36

(2d Cir. 1996). . . . The 1996 Act does not ‘impair rights a party

possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions

already completed.’ . . . The new law therefore governs our

consideration of Lindh’s contentions.”

The court also rejected claims that altering the scope of

collateral review after a prisoner filed a §2254 petition violates

the Suspension Clause of the Constitution; that §2254(d)(1)

violates Article III by improperly limiting federal court review

of questions of federal law; and that changing the scope of

review under §2254 violates the Due Process Clause because

the previous standard of review had become a protected

“fundamental right.”

Addressing the merits of petitioner’s claim, the court first

had to determine when, under § 2254(d)(1), a state court

decision would be “contrary to, or involve[] an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” The phrase

“contrary to . . . clearly established Federal law” requires that

a state court decision conflict with a decision of the Supreme

Court of the United States. “A conflict between decisions of

the Seventh Circuit and the Supreme Court of Wisconsin

would not authorize issuance of a writ under § 2254(d)(1).”

As for the “unreasonable application” language, it “tells federal courts: Hands off, unless the judgment in place is based on

an error grave enough to be called ‘unreasonable.’” The court

did not define “unreasonable,” but stated that “when the

constitutional question is a matter of degree, rather than of

concrete entitlements, a ‘reasonable’ decision by the state

court must be honored. . . . The Supreme Court of the United

States sets the bounds of what is ‘reasonable’; a state decision

within those limits must be respected—not because it is right,

or because federal courts must abandon their independent

decisionmaking, but because the grave remedy of upsetting a

judgment entered by another judicial system after full litigation is reserved for grave occasions. That is the principal

change effected by § 2254(d)(1).”

Following those guidelines, the court held that the state

courts’ interpretation of the Confrontation Clause was correct

and upheld the denial of the petition. Three judges dissented

from this conclusion, and two of these judges also dissented

on the Article III issue.

Lindh v. Murphy, 96 F.3d 856, 861–77 (7th Cir. 1996) (en

banc).
2 Habeas & Prison Litigation Case Law Update, number 4, November 1996 • a publication of the Federal Judicial Center

Second Circuit holds that AEDPA would not be applied to

§ 2255 appeal that was fully briefed before April 24, 1996.

Petitioner’s “notice of appeal was filed in January 1996, and

there is some question as to whether the April 24, 1996,

requirement [to obtain a certificate of appealability] is to be

applied retroactively to appeals pending on that date. In Reyes

v. Keane, 90 F.3d 676, 680 (2d Cir. 1996), this Court held that

the ‘substantial showing’ requirement imposed by § 2253 as

amended is retroactively applicable to appeals from denials of

habeas corpus petitions brought under 28 U.S.C. § 2254. The

decision in Reyes does not answer the retroactivity question

with regard to a § 2255 petitioner, however, for the Reyes

opinion noted that the amendment requiring a certificate of

appealability was essentially a procedural amendment, given

that prior to the April 1996 amendments a §2254 petitioner

was required to obtain a substantively similar ‘certificate of

probable cause’ in order to appeal; in contrast, no such

requirement for a certificate had been imposed on a § 2255

petitioner prior to the amendments.”

“In the present case, we note that not only was Thye’s

appeal pending on the effective date of the amendments, but

that both sides had already filed their briefs addressing the

merits. Even assuming that §2253’s new requirement were to

be held applicable to some § 2255 appeals filed before the

effective date of the amendments, we doubt that Congress

meant the amendment to apply to appeals that were fully

briefed prior to that date. . . . We conclude that the amendments should not be applied retroactively to appeals that were

already fully briefed.”

Thye v. United States, 96 F.3d 635, 636–37 (2d Cir. 1996)

(per curiam).

Magistrate judge rules that AEDPA’s noncapital provisions

may be applied retroactively. Petitioner sought habeas relief

from his state court conviction and sentence of death. The

Antiterrorism and Effective Death Penalty Act of 1996 was

signed into law “between sessions of his evidentiary hearing

in this case.” The court interrupted the proceedings to

determine whether the Act should be applied to the case. The

court first concluded that the Act’s special habeas procedures for capital cases could not be applied because “Ohio’s

procedure for providing counsel in post-conviction proceedings plainly does not comply with 28 U.S.C. § 2261(b) and

(c).” However, following the test for retroactive application of

statutes in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the

court held that the noncapital amendments to 28 U.S.C. §2254

could be applied.

“The Court acknowledges that applying the Act to pending

cases will disturb some ‘settled expectations,’ particularly in

the capital habeas corpus bar, but those are not settled expectations of the sort Landgraf intended should be protected. . . .

Because those portions of the Act amending [§2254] change

habeas corpus procedure and standards for review of state

court decisions, this Court concludes they are not retroactive

in the sense forbidden by the presumption against statutory

retroactivity adumbrated in Landgraf. Therefore it is appropriate to apply them to this and other habeas corpus cases

pending on the Act’s effective date.”

“New § 2254(e) modifies the standards for granting an

evidentiary hearing and for evaluating state court fact determinations. It modifies old §2254(d) by eliminating the exceptions to the presumption of correctness of state court fact

finding . . . . Operating on the principle of applying the law in

effect at the time of the decision, this Court will leave standing

its prior decision to grant an evidentiary hearing in this case.

However, applying the same principle, the Court will apply

the new statute in evaluating the state court determinations of

fact. That is, they will be presumed to be correct unless clearly

erroneous, that is, unless Petitioner establishes they are incorrect by clear and convincing evidence.”

Zuern v. Tate, No. C-1-92-771 (S.D. Ohio Aug. 7, 1996)

(Merz, Mag. J.).

Special Procedures in Capital Cases

Fourth Circuit holds that AEDPA’s special habeas procedures for capital cases cannot be applied to Virginia

defendant whose final state habeas petition was denied

before July 1, 1992. The court had to determine whether it

would analyze a capital defendant’s habeas petition under

§ 107(a) of the AEDPA (see 28 U.S.C. §§2261–2266). Although

the petition “was filed well before the Act took effect” on April

24, 1996, §107(a) is to be applied retroactively, see AEDPA

§ 107(c), if the state meets the Act’s requirements for “the

appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners” in capital

cases.

The court concluded that § 107 could not be applied here.

“Since July 1, 1992, Virginia has required appointment of

competent counsel to represent indigent petitioners in its

post-conviction proceedings. . . . Although the parties dispute

whether Virginia’s system satisfies §107’s requirements, this

dispute is irrelevant because, whatever the merits of the

Virginia system, it was not set up until after Bennett’s Virginia

habeas petition had been finally denied by the Virginia Supreme Court. Accordingly, we conclude that Virginia’s disposition of Bennett’s petition should not receive the added

deference afforded by the Act, because, by the time it denied

his petition, Virginia had not yet set up the appointment

procedures the Act requires as the price of deference.” Because

the court denied the petition under pre-Act habeas law, it did

not determine whether to apply other sections of the Act.

Bennett v. Angelone, 92 F.3d 1336, 1341–43 (4th Cir. 1996).

See also Banks v. Horn, No. 4:CV-96-0294 (M.D. Pa. Aug. 30,

1996) (McClure, J.) (holding that §107 could not be applied

to capital petitioner “since Pennsylvania has not established a

‘unitary review procedure’ as defined in [28 U.S.C. § 2265].

. . . Pennsylvania’s procedure for unitary review in capital

cases . . . does not apply for present purposes as it was made

applicable to cases in which the death penalty was imposed

after January 1, 1996, . . . well after Banks’ sentence was
Habeas & Prison Litigation Case Law Update, number 4, November 1996 • a publication of the Federal Judicial Center 3

imposed.”); Zuern v. Tate, No. C-1-92-771 (S.D. Ohio Aug. 7,

1996) (Merz, Mag. J.) (concluding that “Ohio’s procedure for

providing counsel in post-conviction proceedings plainly

does not comply with 28 U.S.C. § 2261(b) and (c)”).

Second or Successive Petitions

Second Circuit sets forth procedure to follow when second

or successive petition is filed in district court instead of

appellate court. Petitioner attempted to file a second motion

for relief under 28 U.S.C. § 2255 in the district court on June

17, 1996. The court concluded that the motion should have

been filed in the appellate court because § 2255, as amended,

now provides that a “second or successive motion must be

certified as provided in section 2244 by a panel of the appropriate court of appeals.” The court used 28 U.S.C. § 1631 to

“transfer this matter to the United States Court of Appeals for

the Second Circuit in the interest of justice.” The appellate

court held that the transfer was valid and then denied the

motion, finding that it did “not even arguably satisfy the

criteria for relief specified in §§ 2255 and 2244(b)(2).”

The court used the occasion to “establish the procedure to

be followed when, as occurred in this case, a second or successive petition for habeas corpus by a state prisoner, or §2255

motion by a federal prisoner, is filed in a district court in this

circuit unaccompanied by the required §2244(b)(3) motion.”

Because of the delays and confusion that improper filings

could cause, “[i]t is important that this situation be addressed

by a clear and comprehensive procedure throughout the

Second Circuit. We accordingly rule that when a second or

successive petition for habeas corpus relief or §2255 motion

is filed in a district court without the authorization by this

Court that is mandated by § 2244(b)(3), the district court

should transfer the petition or motion to this Court in the

interest of justice pursuant to §1631, as was done in this case.”

“The Clerk of this Court will then send a notice to the

petitioner or movant that a motion must be filed pursuant to

§2244(b)(3). The notice will explain the substantive requirements that such a motion must satisfy, and advise the petitioner or movant that: (1) the motion pursuant to

§2244(b)(3) must be filed in this Court within forty-five days

of the date of the Clerk’s notice; and (2) if the motion is not so

filed, an order will be entered denying authorization for the

underlying petition for habeas corpus or § 2255 motion to be

filed in district court.”

“In accordance with §1631, the petition for habeas corpus

or §2255 motion will be deemed filed, for purposes of the oneyear limitation periods established by §§ 2244(d) and 2255,

on the date of its initial filing in the district court. The thirtyday period specified by §2244(b)(3)(D) for this Court to grant

or deny authorization for a district court filing will commence

upon ‘the filing of the motion,’ § 2244(b)(3)(D), in response

to the previously described notice by the Clerk of this Court.”

The court added that “no filing fee will be required in

connection with §2244(b)(3) motions. . . . Section 2244(b)(3)

motions are analogous to such ‘gatekeeping’ motions as motions for permission to appeal under 28 U.S.C. §1292(b) or id.

§ 636(c)(5), or motions for leave to appeal filed by sanctioned

litigants, for which no filing fee is required. Because the

permission sought is to maintain an action in the district

court, in the event that a §2244(b)(3) motion is granted, the

filing fee should be assessed by the district court. In the case

of a petition for habeas corpus, the fee is $5.00. See 28 U.S.C.

§ 1914(a). No fee is charged for a § 2255 motion.”

Liriano v. United States, 95 F.3d 119, 120–23 (2d Cir. 1996)

(per curiam) (as amended Oct. 7, 1996).

Certificate of Appealability

District court holds that it does not have authority to issue

certificate of appealability for § 2255 appeal. Petitioner

filed a motion for post-conviction relief under 28 U.S.C.

§ 2255 on April 8, 1996, and the court denied the motion on

July 16. Defendant filed a notice of appeal on July 26, and the

court construed the notice of appeal as a request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(B)

and Fed. R. App. P. 22(b), as amended by the AEDPA.

The court first determined that, although defendant’s original § 2255 motion was filed before the effective date of the

AEDPA, it could apply amended § 2253(c) and Rule 22 to the

appeal. Defendant may “receive a certificate of appealability

allowing him to raise any issues for which there has been a

‘substantial showing of the denial of a constitutional right.’ 28

U.S.C. § 2253(c)(2). The only right affected would be Mr.

Cota-Loaiza’s ability to appeal the denial of his §2255 motion

on grounds that would not justify the issuance of a certificate

of appealability, namely, grounds for which there has not been

a ‘substantial showing of the denial of a constitutional right,’

or, in other words, grounds that have no merit. Accordingly,

the rights Mr. Cota-Loaiza would lose if 28 U.S.C.

§2253(c)(1)(B) were applied are of little or no value. Second,

before Mr. Cota-Loaiza filed his notice of appeal, any right he

may have had to appeal the denial of his § 2255 motion was

at best inchoate and contingent. Furthermore, because Mr.

Cota-Loaiza did not initiate his appeal until after the effective

date of the Act, any vested, concrete appellate rights he

acquired by initiating his appeal should be governed by the

law as it existed on July 26, 1996, the date he filed his notice

of appeal, including the certificate of appealability requirement in 28 U.S.C. § 2253(c)(1)(B).”

The court then concluded that it had to dismiss the appeal

because, despite contrary indications in Rule 22(b), it had

no authority under the AEDPA to issue a certificate of appealability for a § 2255 appeal. “[I]t is quite clear that district

courts lack the authority under 28 U.S.C. §2253(c)(1), added

by §102 of the Act, to grant or deny certificates of appealability . . . . However, the very next section of the very same Act,

§103, which amends Fed. R. App. P. 22(b), clearly contemplates that the district courts may issue certificates of appealability, at least in some cases.” The court resolved the conflict

by holding that Rule 22 “applies only to proceedings by state

prisoners under 28 U.S.C. § 2254, and that it does not give
4 Habeas & Prison Litigation Case Law Update, number 4, November 1996 • a publication of the Federal Judicial Center

1996) (in appeal of denial of §2255 motion, resolving conflict

between statute and rule by holding that defendant’s claim

“is clearly devoid of merit” and “to the extent that a district

court has the authority to rule on the issuance of a certificate

of appealability under amended 28 U.S.C. § 2253, that certificate is DENIED”); Parker v. Norris, 929 F. Supp. 1190, 1192–

93 (E.D. Ark. 1996) (court held that it was precluded

by §2253(c)(1)(A) from issuing certificate of appealability for

§2254 petition despite Rule 22(b)). But see Houchin v. Zavares, 924 F. Supp. 115, 117 (D. Colo. 1996) (district court has

authority under Rule 22(b) to issue certificate); Harkins

v. Roberts, 935 F. Supp. 871, 872–73 (S.D. 1996) (court denied request for certificate after “proceed[ing] under the assumption that it has the ability to grant a certificate of

appealability”).

the district courts authority to grant or deny certificates of

appealability in proceedings under 28 U.S.C. §2255. Only the

title of the rule speaks of proceedings under §2255; there is

no mention of such proceedings in the text. To the contrary,

Fed. R. App. P. 22(b) begins by stating the remainder of the

rule applies ‘[i]n a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court . . . .’” Therefore, the court “den[ied] Mr. Cota-Loaiza’s

request for a certificate of appealability as moot, on the ground

this court lacks authority to grant his request. Should Mr.

Cota-Loaiza wish to proceed further with his appeal, he

should file a request for a certificate of appealability with

the Tenth Circuit.”

U.S. v. Cota-Loaiza, 936 F. Supp. 756, 759–61 (D. Colo.

1996). Cf. U.S. v. Campos, 932 F. Supp. 1034, 1038 (W.D. Tenn.

PRISON LITIGATION

Proceedings In Forma Pauperis

Second Circuit rules that PLRA fee requirements do not

apply to released prisoners. The Second Circuit considered

whether the filing fee requirements of the Prison Litigation

Reform Act continue to apply after a prisoner has been

released. The court construed two provisions of the Act [28

U.S.C. §1915(b)(1) & (2)] that it found to be facially inconsistent. “On the one hand, the statute broadly states that a

prisoner who files an appeal ‘shall be required’ to pay filing

fees, and McGann was a prisoner when he filed his appeal. On

the other hand, the amounts required to be paid are to be

calculated as percentages of the balances of, or deposits into,

the prisoner’s prison account and are to be debited from that

account, and now that McGann is no longer a prisoner, there

is no prison account from which to calculate and debit the

required payments.” The court decided that “the detailed

mechanism [Congress] created for implementing this

obligation by debiting prison accounts demonstrates that

Congress expected the new payment requirement to apply to

a prisoner who remains incarcerated.” The Second Circuit

pointed out that if the payment obligation continued after release, a released prisoner would have to pay the entire balance of the fee in a single payment because he or she would

not have a prison account that could be debited. It is not likely,

the court said, that Congress intended to impose a more

onerous requirement on released prisoners than on those

who remain incarcerated.

McGann v. Commissioner, 96 F.3d 28, 29–30 (2d Cir. 1996).

Second Circuit holds that the PLRA is not applicable to

appeals submitted for decision before the Act’s effective

date. Before the PLRA became law, the plaintiff’s appeal had

been fully briefed, considered by the Second Circuit, and

deemed submitted for decision. In light of its recent ruling

in Covino v. Reopel, 89 F.3d 105 (2d Cir. 1996), that the PLRA’s

fee provisions apply to prisoners who filed notices of appeal

before the Act’s effective date, the court addressed whether

the appellant “must comply with the provisions of the PLRA,

which, if applicable, require dismissal of this appeal unless

Ramsey submits an appropriate authorization form to this

court. Leonard v. Lacy, 88 F.3d 181 (2d Cir. 1996).” It held that

the appellant did not have to comply. “[W]e suggested in

Covino that the fee provisions might not apply in cases in

which the ‘appeal reached the stage where judicial resources

had already been expended, or perhaps even if the appellant

himself could demonstrate that he had expended significant time and effort by preparing an appellate brief.’” The

congressional purpose of deterring or reducing the burden of

frivolous prisoner litigation would not be furthered by imposing the PLRA fee requirements on appellant in this case.

Ramsey v. Coughlin, 94 F.3d 71, 73 (2d Cir. 1996). See also

Duamutef v. O’Keefe, No. 96-2238 (2d Cir. Oct. 18, 1996) (PLRA

filing fee requirement does not apply to appeal fully briefed

before the court decided Covino v. Reopel, supra).

Ninth Circuit holds that PLRA dismissal requirement applies to appeals pending on the date of enactment. Before

the PLRA was enacted, the district court sua sponte dismissed

plaintiff’s §1983 complaint as frivolous. One day before the

Act took effect, the plaintiff filed a notice of appeal, and the

district court granted him leave to proceed on appeal in forma

pauperis. As amended by the PLRA, 28 U.S.C. § 1915(e)(2)

requires a court to dismiss a case sua sponte at any time it

determines the case is frivolous or malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief

from a defendant immune from such relief. The Ninth Circuit

determined that this provision “is a procedural rule which
Habeas & Prison Litigation Case Law Update, number 4, November 1996 • a publication of the Federal Judicial Center 5

raises no retroactivity concerns under Landgraf.” Consequently, it “applies to all appeals pending on or after April 26,

1996, regardless of when the complaint or notice of appeal was

filed.” Under §1915(e)(2), it dismissed the appeal for failure

to state a claim upon which relief may be granted.

Marks v. Solcum, D.C. No. CV-96-00023-RMB (9th Cir. Oct.

18, 1996) (per curiam).

Seventh Circuit rules that neither mandamus petitions in

criminal proceedings nor habeas corpus petitions are

subject to PLRA fee provisions; also holds that initial

partial fee must be paid before the court will consider

appeal’s merits. In several cases that were consolidated for

appeal, the Seventh Circuit considered various questions of

interpretation under the PLRA. It held:

(1) Whether a petition for mandamus falls within the scope

of the PLRA cannot be answered “in gross.” A mandamus

action against a judge presiding in a petitioner’s civil case

would fall under the Act, but a mandamus petition in a

criminal proceeding would not because it is not a civil action

within the meaning of 28 U.S.C. §1915(b)(1). “It is a procedural step in the criminal litigation, like an interlocutory or

final appeal or a civil contempt proceeding against a witness.

. . . [I]t is apparent that the word ‘appeal’ [in the statute] means

the appeal in a civil action. A different conclusion would create

the anomaly that a prisoner who had brought three or more

groundless civil suits while incarcerated could not seek mandamus in a criminal action against him without prepaying the

docket fee.” The court cited both In re Nagy, 89 F.3d 115 (2d

Cir. 1996), and Green v. Nottingham, 90 F.3d 415 (10th Cir.

1996), in support of its conclusion.

(2) Although habeas corpus actions and § 2255 proceedings “are technically civil proceedings and so come within

the literal scope of the Act,” the PLRA does not apply to them,

as the Second Circuit held in Reyes v. Keane, 90 F.3d 676 (2d

Cir. 1996). The simultaneously enacted Antiterrorism and

Effective Death Penalty Act deals comprehensively with habeas corpus. Moreover, habeas corpus “is more accurately

regarded as being sui generis . . . than as being either civil or

criminal,” and prisoner civil rights relief, which the PLRA

addresses, is analytically very different from postconviction

relief. “By virtue of the new 28 U.S.C. § 1915(g), the application of the [Act] to habeas corpus would block access to

any prisoner who had filed three groundless civil suits and was

unable to pay the full appellate filing fee. . . . This result would

be contrary to a long tradition of ready access of prisoners to

federal habeas corpus, as distinct from their access to tort

remedies.”

(3) As the Second Circuit held in Leonard v. Lacy, 88 F.3d

181 (2d Cir. 1996), before the court will consider the merits

of even a frivolous case, prisoner-appellants must pay the

initial partial fee required by the PLRA. “To reach the merits of

frivolous appeals without insisting on the initial payment

would produce the paradox that frivolous appellants would

get a decision on the merits without charge while appellants

who had colorable but losing cases would get (the same)

decision on the merits only after paying (assuming they have

a means of paying, 28 U.S.C. §1915(b)(4)).”

Martin v. United States, 96 F.3d 853, 854–56 (7th Cir. 1996).

Seventh Circuit resolves several issues regarding PLRA

fee provisions. In ruling on five cases consolidated for

decision, the Seventh Circuit said that this opinion, together with Martin v. United States, supra, and Abdul-Wadood v.

Nathan, 91 F.3d 1023 (7th Cir. 1996), resolved “most of the

pressing questions this court has encountered in beginning to

implement the Act.” The court ruled that a federal prisoner’s

petition under 28 U.S.C. §2241 challenging his sentence is

not a “civil action” subject to the PLRA “[f]or the reasons

Martin gave in holding that petitions under §§2254 and 2255

are not. . . . It is functionally a stage in the criminal proceeding;

indeed, this petition is simply a §2255 action in the wrong

venue.” However, a “proper §2241 action, concerning conditions of confinement . . . or other matters that occur at the

prison” would fall under the Act. The appellate court also cited

its decision in Martin in holding that a jurisdictionally

untimely appeal in the second case should be handled in the

same way as a frivolous appeal; that is, appellate fees must be

assessed and paid even if the appeal is dismissed for want of

jurisdiction.

In the third case, the Seventh Circuit agreed with Covino

v. Reopel, 89 F.3d 105 (2d Cir. 1996), that the plaintiff’s

“carryover IFP status does not affect the obligation to pay

appellate fees.” The court said “‘bringing’ a civil action and

‘filing’ an appeal” are the dispositive events, and since the

plaintiff filed his appeal after April 26, he is required to pay

the filing fees. It further emphasized that “[n]ow that payment

of the filing fees is obligatory, we will take nonpayment (for

any reason other than destitution) as a voluntary relinquishment of the right to file future suits in forma pauperis—just

as if the prisoner had a history of frivolous litigation, and

§1915(g) required prepayment.” It directed the district court

clerk to “keep tabs of the payment history . . . and pass

information about nonpayment to the clerk of this court so

that judges throughout the circuit may be informed and

respond appropriately.”

The plaintiff in the fourth case filed a motion with the

Seventh Circuit on March 4, 1996, asking it to certify that his

appeal was not frivolous so that he could proceed IFP. Because

the motion was pending when the PLRA took effect, the court

of appeals considered whether appellate fees had to be assessed against the plaintiff before the motion could be addressed. “Without pretending that this is the only possible

reading of the Act, we think that the best understanding is that

an appeal lodged before April 26, but ineffective because the

appellant lacks IFP status, does not become ‘filed’ until the

motion has been acted on, one way or the other. Martin held

that for appeals filed after April 25, payment (at least assessment) must precede any determination of frivolousness; for

appeals lodged before April 26, however, the sequence is the

reverse. And to prevent the assessment of a fee against a

litigant who may not have anticipated this possibility, we will
6 Habeas & Prison Litigation Case Law Update, number 4, November 1996 • a publication of the Federal Judicial Center

give Thurman (and any similarly situated litigants) notice and

an opportunity to dismiss the appeal before taking the step

that locks in the obligation to pay.” The fifth case was remanded to the district court for a determination of when the

appeal was filed.

Thurman v. Gramley, 97 F.3d 185, 186–89 (7th Cir. 1996).

Third Circuit agrees with Second and Seventh Circuits

that habeas proceedings are not covered by the PLRA’s

filing fee requirements. Acknowledging that habeas petitions “fit within the literal scope of the PLRA,” the Third Circuit

nevertheless joined the Seventh Circuit in Martin v. United

States, supra, and the Second Circuit in Reyes v. Keane, 90 F.3d

676 (2d Cir. 1996), in holding that “Congress did not intend

to include habeas proceedings in the category of ‘civil action’

for the purposes of §1915(b).” Habeas corpus cases are hybrid

in nature. Also, Congress could have reformed “the in forma

pauperis status of habeas petitioners” in the Antiterrorism and

Effective Death Penalty Act, which it passed two days before

the PLRA, but it did not do so. Neither is it conclusive that

Congress expressly excluded habeas proceedings from the

section of the PLRA that applies to “civil action[s] with respect

to prison conditions,” 18 U.S.C. § 3626. Section 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,” relief that is “akin to that

provided by a writ of habeas corpus. . . . [I]n order to

distinguish between prison release orders and habeas proceedings, Congress felt compelled to exclude expressly such

proceedings from the scope” of that section.

The Third Circuit agreed with the Second Circuit in Reyes,

supra, that “where a claim is not analogous to [a §1983 suit

complaining about prison conditions], the PLRA should be

applied with caution.” It is telling, the court found, that Congress established an elaborate installment payment plan in

the PLRA, “yet did not increase the $5 filing fee for a habeas

corpus petition. . . . Congress surely did not intend for the installment plan . . . to apply to habeas corpus actions merely to

assure deferred monthly payments of a $5.00 fee.” Finally, the

court of appeals noted that, like the Seventh Circuit in Martin,

supra, it could not countenance prohibiting prisoners “who

had filed three groundless civil suits from seeking habeas relief

from unlawful imprisonment,” as a literal reading of the PLRA

would require.

Santana v. United States, No. 96-5276 (3d Cir. Oct. 18,

1996) (Becker, J.).

District court declares unconstitutional the PLRA’s ban on

IFP filings after three dismissals. On May 8, 1996, the court

dismissed the plaintiff’s complaint alleging that he had been

denied his First Amendment right to participate in Jewish

services and other practices of the Jewish faith. It found that

he had filed at least three actions that were dismissed as

frivolous before the PLRA took effect and that his complaint

did not “meet the ‘imminent danger of serious physical injury’

standard” required by 28 U.S.C. §1915(g). At the same time,

the court granted preliminary injunctive relief to other inmates who had filed similar claims before enactment of the

PLRA. In a motion to alter or amend the court’s judgment, the

plaintiff challenged the constitutionality of §1915(g). The

court rejected the plaintiff’s argument that the statute has an

impermissible retroactive effect, agreeing with the analysis in

Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996), that the

statute is a procedural rule that “does not alter the merits of a

prisoner’s action or the legal consequences of the previously

dismissed actions.” In addition, “§ 1915(g) does not impair

any rights a prisoner had before the law’s enactment because

IFP status under the former version of the law was available at

a judge’s discretion.” Also, the statute “does not require a

prisoner to perform ‘new duties with respect to transactions

already completed.’”

However, the district court found the plaintiff’s contention

that “§1915(g) violates the equal protection guarantee of the

Fifth Amendment” more persuasive. “This section of the PLRA

treats this class of indigent inmates differently from the

similarly situated class of prisoners with three frivolous dismissals who do not seek to proceed IFP.” Section 1915(g)

burdens the affected inmates’ fundamental constitutional

right of access to the courts by restricting their ability “to file

in federal court constitutional claims other than those involving imminent serious physical injury.” The court declared

meritless the defendants’ (and intervenor United States’)

contentions that the inmates’ access to the courts was not

substantially burdened because the three-dismissal provision only denies access to a narrow class of inmates and does

not deny access in criminal cases or habeas proceedings; that

inmates with three dismissals can still file actions if they pay

the fee like other litigants; that the inmates can use the

prisoner grievance system; and that the inmates do not have

an unconditional right to proceed IFP and the three-dismissal

provision is similar to the federal courts’ inherent power to

limit inmates’ abuse of the courts.

Because the case involved “a challenge to a federal statute

affecting prisoner litigation in federal courts and addressing

other related federal court administration and legal issues”

rather than issues concerning prison administration and

security, the court ruled that “the usual strict scrutiny rule for

fundamental rights should apply.” The statute did not meet

that standard. “Even assuming the interest in deterring inmates from filing frivolous lawsuits is compelling, §1915(g)

would stop only indigent inmates with three previous frivolous dismissals from filing new civil actions. Those inmates

who also have filed three or more frivolous actions in the past,

but have enough money to pay filing fees, can file as many new

lawsuits as they can afford. . . . Stopping all further lawsuits

under §1915(g), frivolous or not, by indigent inmates with

three dismissals unless imminent serious physical injury is

involved would bar many other important and arguably meritorious constitutional claims by only those inmates.” The

court held that “the indigency classification in 28 U.S.C.

§1915(g) is not necessary or narrowly tailored to achieve a

compelling government interest, and therefore is unconstitu-
Habeas & Prison Litigation Case Law Update, number 4, November 1996 • a publication of the Federal Judicial Center 7

tional under the equal protection component of the Fifth

Amendment.” It granted the plaintiff’s motion to alter or

amend the judgment.

Lyon v. Del Vande Krol, No. 4-96-CV-10356 (S.D. Iowa Sept.

9, 1986) (Longstaff, J.).

District court concludes that fee requirements of PLRA

do not apply to a § 2255 motion. The petitioner moved

for leave to proceed in forma pauperis on his 28 U.S.C.

§2255 motion. The district court noted that no filing fee is

required for such motions and that the PLRA did not impose

such a filing fee. “In contrast to a §2254 proceeding, a

§2255 motion is just that: a motion in a pre-existing criminal

case, not a new, civil action.” The petitioner’s IFP request was

denied as moot.

U. S. v. Bazemore, 929 F. Supp. 1567, 1568–69 (S.D. Ga.

1996). Accord U. S. v. Rios, CRIM. 92-153-04 (E.D. Pa. Sept. 3,

1996) (Kelly, J.) (unpublished).

District court holds that bar to IFP filings after three

previous dismissals applies retroactively. The district court

cited Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996), in

holding that 28 U.S.C. § 1915(g) “requires that this court

consider prisoner actions dismissed prior to, as well as after,

the PLRA’s enactment.” Because the plaintiff had had three or

more prior dismissals and was not in imminent danger of

serious physical injury, his IFP request was denied and his civil

rights complaint dismissed “without prejudice to bringing it

in a paid complaint.”

Harris v. Guichard, No. C96-3031-VRM (N.D. Cal. Sept. 5,

1996) (Walker, J.) (unpublished).

Remedies for Prison Conditions

District court concludes that pre-PLRA order setting special master’s compensation does not constitute “prospective relief” under the Act, and any ambiguity in the term

“relief” should be resolved against retrospective application. The district court considered whether, pursuant to 18

U.S.C. §3626(f)(4), it must modify its January 23, 1995, order

of reference setting the special master’s compensation at $125

per hour and requiring defendants to bear the expense. It

noted that in a separate section of the statute, Congress

expressly directed that §3626 apply retrospectively, “but only

with respect to ‘all prospective relief’ that had been previously

granted.” Therefore, the court had to determine whether its

previous order granted prospective relief. The court agreed

with the decision in Coleman v. Wilson, 933 F. Supp. 954 (E.D.

Cal. 1996), that the term “relief” should be construed “in light

of its traditional legal meaning.” It found that its previous

order did not provide relief “as that term is traditionally

understood in a legal context.” Even the appointment of a

special master itself did not constitute relief because a special

master “is simply a device utilized by the Court to assist in the

formulation of appropriate relief or to monitor relief that is

ordered.” The district court found further support for its

conclusion in the structure of the Act, which has a separate

section dealing with special masters.

Even assuming arguendo that the term “relief” is ambiguous, the court said “it is appropriate to adopt that interpretation which avoids retroactive effects.” It concluded that if

§3626(f)(4) were applied to the order setting special master

compensation, it would operate retroactively. The basic inquiry, as established in Landgraf v. USI Film Prods., 511 U.S.

244 (1994), is “whether the statute in question . . . ‘attaches

new legal consequence to [prior] events’ . . . or results in unfair

new burdens.” The special master had accepted the assignment in January 1995 on the representation that he would be

paid $125 per hour, and he had devoted 18 months to the case.

“The gross unfairness of depriving the Special Master—ex

post facto—of the benefit of the Court’s representation and

order, and slashing his compensation 40 percent many

months into the remedial process is self-evident.” Moreover,

shifting the cost of paying the special master from the defendants to the judiciary, as §3626(f)(4) requires, would have

retroactive effect. “[T]he provision fundamentally alters the

legal consequences—for the judiciary—of this Court’s prior

finding of liability.” The court rejected the defendants’ argument that judicial interests are not cognizable for the purposes

of determining a statute’s retroactivity, noting that “this appears to be the first time that Congress has imposed what is

normally considered a responsibility of the losing party upon

the judiciary.”

Madrid v. Gomez, No. C90-3094-TEH (N.D. Cal. Aug. 23,

1996) (Henderson, J.).

District court holds that proposed consent decree complies with requirements of the PLRA. A class action brought

on behalf of all past, present, and future prisoners in the St.

Joseph County Jail was filed on February 15, 1994, challenging conditions of confinement, including alleged overcrowding, at the jail. After extensive settlement negotiations, the

parties reached a comprehensive settlement agreement, including a proposed consent decree, which they filed with the

court on June 21, 1996. On July 12, 1996, the court conducted

a fairness hearing regarding the proposed settlement. On July

23, 1996, the St. Joseph County Council approved the consent

decree. Before approving and confirming the report and recommendation of the magistrate judge in the case, the district

judge found that the proposed consent decree was enforceable

under the PLRA. The court reviewed the proposed decree in

light of 18 U.S.C. § 3626(a)(1), which prohibits a court from

approving prospective relief unless it finds “that such relief is

narrowly drawn, extends no further than necessary to correct

the violation of the Federal right, and is the least intrusive

means necessary to correct the violation of the Federal right.”

The law further requires the court to determine that the relief

will not have an “adverse impact on public safety or the

operation of a criminal justice system.” The proposed decree

met all of these standards, the court said, and it “will not place

this court in the position of an architect, accountant, or
Habeas & Prison Litigation Case Law Update, no. 4, Nov. 1996

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

appropriating body for the Jail. Instead, the proposed decree

limits the court’s role in enforcing its terms.”

Winston v. Speybroeck, No. 3:94CV0150AS (N.D. Ind. Aug.

2, 1996) (Sharp, J.) (unpublished).

Suits by Prisoners

Eighth Circuit rules that the PLRA’s attorneys’ fees provision should not be applied retroactively. A class of inmates

in the Nebraska State Penitentiary challenged the conditions

of their confinement under 42 U.S.C. § 1983 and won an

injunction in 1992. Under 42 U.S.C. §1988, the district court

awarded attorneys’ fees to the plaintiffs as prevailing parties.

The defendants challenged the attorneys’ fees award on three

grounds, including restrictions enacted by the PLRA [42 U.S.C.

§1997e(d)] on awarding fees pursuant to §1988 in prisoner

suits. Since the PLRA was enacted well after both the liability

and attorneys’ fees determinations were made, the Eighth

Circuit had to decide whether the attorneys’ fees restrictions

should be applied retroactively.

Relying on Landgraf v. USI Film Prods., 511 U.S. 244 (1994),

the court concluded that “the plaintiffs and their attorneys

have proceeded from the outset under the assumption that

Section 1988 would apply to this case. They have litigated for

literally years under that assumption. . . . It would be ‘manifestly unjust’ to upset those reasonable expectations and

impose new guidelines at this late date.” Moreover, the appellate court found evidence that Congress did not intend for this

provision of the Act to be applied retroactively. The section of

the PLRA dealing with prospective relief [18 U.S.C. § 3626]

specifically states that it will apply to relief “granted or

approved before, on, or after the date of enactment of this

title.” By contrast, the section of the Act dealing with suits by

prisoners [42 U.S.C. §1997e], “is silent on retroactive application. Congress saw fit to tell us which part of the Act was to

be retroactively applied.”

Jensen v. Clarke, 94 F.3d 1191, 1202–03 (8th Cir. 1996).

Accord Cooper v. Casey, 97 F.3d 914, 921 (7th Cir. 1996) (To

give the PLRA attorneys’ fees provision retroactive effect

“would attach (without clear indication of congressional

intent to do so) new legal consequences to completed conduct”).

District court holds that the PLRA bars recovery of damages for mental or emotional injury in the absence of

physical injury. Plaintiff filed a complaint claiming that the

conditions of his confinement violated his constitutional

rights in various ways. The district court found that even

assuming the plaintiff had suffered mental or emotional injuries for which the defendants had personal liability, he could

not recover damages for those injuries without demonstrating

that he had also suffered physical injury [42 U.S.C.

§1997e(e)]. The plaintiff had not presented any legally sufficient evidence at trial to establish physical injury.

Markley v. DeBruyn, No. 3:94-CV-701RM (N.D. Ind. Aug.

19, 1996) (Miller, J.) (unpublished).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 5, Feb. 1997

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Certificate of Appealability

En banc Eleventh Circuit holds that certificate of appealability requirements apply to cases pending on, but appealed

after, April 24, 1996, and that district courts have authority

to issue the certificate. In two cases originally filed before the

effective date of the Antiterrorism and Effective Death Penalty

Act of 1996, one involving a 28 U.S.C. § 2254 petition and the

other a §2255 petition, the district courts denied relief on or

after April 24, 1996. Both petitioners appealed and, despite

expressing doubts about their authority to do so, each district

court issued a certificate of appealability (COA) under

amended §2253(c). The Eleventh Circuit granted hearing en

banc to resolve whether district courts are authorized to issue

a COA under amended §2253(c) and Fed. R. Crim. P. 22(b) in

§2254 and §2255 cases.

The court first concluded that “the AEDPA’s certificate of

appealability provisions, §§ 102 and 103 of the Act, apply to

pending § 2254 cases . . . where no application for a certificate

of probable cause to appeal was filed before the effective date

of the Act, and to pending §2255 cases . . . where no notice of

appeal was filed before that effective date.” Following the

analysis set forth in Landgraf v. USI Film Prods., 511 U.S. 244

(1994), for deciding whether to apply a new law to an ongoing

case, the court concluded that the changes to §2253 and Rule

22 “may be accurately characterized as rules of procedure.

They might also be characterized as changes in the law

affecting access to and the propriety of prospective relief.

Applying such changes to pending cases is not giving them

retroactive effect under the Landgraf judicial default rules.”

See also the summary of Herrera below.

In deciding whether §2253(c)(1) authorizes district

judges to issue a COA, the court stated that “[t]he crucial

phrase is ‘circuit justice or judge.’ Unfortunately, that phrase

is ambiguous, because the adjective ‘circuit’ can be read in

either of two ways. . . . If all we had to consider was the

language of §2253(c), as amended, we might be hard put to

choose between the two plausible interpretations.” However,

“[t]he same subject is also addressed in §103 of the AEDPA,

which amended Rule 22(b)” and provides in part that in a

§2254 case “an appeal by the applicant for the writ may not

proceed unless a district or a circuit judge issues a certificate

of appealability pursuant to section 2253(c).” “Plainly, the

language of that provision authorizes district judges to issue

certificates of appealability in §2254 cases,” and the court

rejected the state’s argument that the reference back to

§2253(c) diminished “the plain language of the rule.”

The court was thus left with “a choice. On the one hand, we

could interpret the ambiguous phrase ‘circuit justice or judge’

in § 2253(c) to mean ‘circuit justice or circuit judge,’ which

will conflict with and render meaningless much of the plain

language of Rule 22(b). . . . On the other hand, we could

interpret the ambiguous phrase in §2253(c) to mean a ‘circuit

justice’ or a ‘judge,’ which would include district judges as well

as circuit judges. That interpretation would reconcile the

statutory provision with the rule and give effect to each word

of both provisions. . . . We . . . hold that under 28 U.S.C.

§ 2253(c), as amended, and Federal Rule of Appellate Procedure 22(b), as amended, district court judges are authorized

to issue certificates of appealability.”

Hunter v. United States, 101 F.3d 1565, 1569–76 (11th Cir.

1996) (en banc). But see United States v. Johnson, 940 F. Supp.

167, 171–72 (W.D. Tenn. 1996) (concluding that “the statute

is clear” and does not authorize district court to issue COA in

a § 2255 case—“It would require a strained interpretation to

avoid application of the word ‘circuit’ to both justice and judge

in section 2253. District courts accordingly lack the authority

to issue certificates of appealability in section 2255 cases.”).

Seventh Circuit holds that certificate of appealability may be

required for §2254, but not §2255, motions filed before

April 24, 1996. In two cases consolidated for appeal, the court

had to determine whether the new requirement in § 2253(c)

for a certificate of appealability (COA) should be applied when

the appeal from the district court opinion came before April

24, 1996, when the AEDPA took effect. One petitioner challenged his federal sentence under 28 U.S.C. § 2255, had the

petition dismissed in district court, and filed his appeal March

29, 1996. On its own initiative, the district court declined on

July 5 to issue a COA. The second petitioner challenged his

state conviction under § 2254, which was decided against him

and appealed before April 24, 1996. That district court declined to issue a certificate of probable cause (CPC), which was

required for § 2254 appeals before AEDPA.

In the first case, the appellate court held “that a certificate

of appealability is unnecessary for § 2255 cases in which the
2 Habeas & Prison Litigation Case Law Update, number 5, February 1997 • a publication of the Federal Judicial Center

notice of appeal preceded April 24. . . . [A]lthough the [AEDPA]

presumptively applies to pending cases, it does not alter the

effect of procedural steps completed before its enactment. . . .

Until April 24, the procedural step necessary to place a §2255

case before the court of appeals for decision was the filing

of the notice of appeal. We do not read the new statute to call

for the dismissal of appeals that were properly filed before

its enactment, and we therefore conclude that Herrera’s appeal must be resolved on the merits. . . . No §2255 case appealed before April 24 requires a certificate of appealability,

and orders by district courts declining to issue such certificates will be disregarded as irrelevant.” The court ordered

that a schedule be set for the appeal. Accord United States v.

Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (“amended

§2253(c) should not be applied to a §2255 appeal filed before

the Act’s effective date”).

The §2254 appeal, “by contrast, requires a certificate of

some kind. Unlike the notice of appeal in a §2255 case, the

notice of appeal in a § 2254 case does not (and, before April 24,

did not) complete the steps necessary to place the case on the

calendar for decision. The petitioner needed a certificate of

probable cause, and when April 24 arrived Green did not have

one in hand. A § 2254 case in which a certificate of probable

cause was issued before April 24 is just like a §2255 case in

which the appeal was filed before April 24: nothing further is

required by the Act. But Green was certificate-less on April 24.

Which kind of certificate does he need today? Given . . . that

the statutory changes generally regulate future steps in existing cases, we conclude that Green needs a certificate of

appealability rather than a certificate of probable cause. . . . The

two certificates differ only in scope: a certificate of probable

cause places the case before the court of appeals, but a

certificate of appealability must identify each issue meeting the

‘substantial showing’ standard, see the amended §2253(c)(3).

It is therefore unnecessary to remand Green’s case to the

district court, which by denying a certificate of probable cause

has foreclosed a certificate of appealability as well.” See also

Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996) (agreeing

that standards for CPC are same as for COA, and treating

application for CPC filed but not acted upon before April 24,

1996, as application for COA).

Herrera v. United States, 96 F.3d 1010, 1011–12 (7th Cir.

1996).

Standard of Review

Fifth Circuit applies new standard of review in §2254(d) to

habeas appeal filed before April 24, 1996. In September

1994, petitioner filed an application for a certificate of probable cause (CPC) to appeal his state death sentence after the

district court granted summary judgment for the state on his

§2254 motion. The appellate court granted a stay of execution

in December 1995, but the appeal was still pending when the

AEDPA was enacted. The court concluded that the new standard of review in § 2254(d) should be applied and that

petitioner failed to meet that standard.

Following the Landgraf analysis, the court stated that “the

question is ‘whether [the statute] would impair rights a party

possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions

already completed.’ . . . If we conclude that the statute does not

have a retroactive effect, we should apply the new statute in

rendering a decision in the case before us.” The court first

concluded that the change to §2254(d) “has no plausible

connection” to petitioner’s crime, and he “cannot argue that

the new standards of review attach new legal consequences to

that conduct by increasing his liability for that conduct or by

imposing new duties on him based on that conduct. . . . This

provision instead speaks to the power of the federal courts to

grant habeas relief to state prisoners,” and as such “is easily

classified as procedural in nature.” Because petitioner “cannot

argue credibly that he would have proceeded any differently

during his state post-conviction proceedings had he known at

the time of those proceedings that the federal courts would not

review claims adjudicated on the merits in the state court

proceedings de novo, . . . the new standards of review do not

have a retroactive effect” and should be applied.

In applying §2254(d)(1), the court stated that “use of the

word ‘unreasonable’ in formulating this restrictive standard

of review implicitly denotes that federal courts must respect

all reasonable decisions of state courts. Thus, given the statutory language, and in the light of legislative history that

unequivocally establishes that Congress meant to enact

deferential standards, we hold that an application of law to

facts is unreasonable only when it can be said that reasonable

jurists considering the question would be of one view that

the state court ruling was incorrect. In other words, we can

grant habeas relief only if a state court decision is so clearly

incorrect that it would not be debatable among reasonable

jurists.” The court concluded that the state court’s decision

was not contrary to or an unreasonable application of federal

law. (Judge Garza dissented on the standard of review and the

conclusion.)

Drinkard v. Johnson, 97 F.3d 751, 764–69 (5th Cir. 1996).

Third Circuit holds that counsel’s assistance was ineffective

under old and amended standard of review. The federal

district court granted a writ of habeas corpus after concluding

that petitioner had been denied effective assistance of counsel

at his state trial. Previously, the state courts had denied

petitioner’s claim in post-conviction proceedings, upholding

the lower court’s findings that counsel had a reasonable trial

strategy or, even if the performance had been deficient, it had

not deprived petitioner of a fair trial.

After the district court had granted the writ and after the

state’s appeal was argued in the court of appeals, 28 U.S.C.

§2254 was amended by the AEDPA. Before determining

whether to apply the amended statute, the appellate court

looked at the standard in effect when the petition was originally filed and held that the state court’s conclusions were

not reasonable and the writ was properly granted by the district court. Then, without holding whether amended § 2254
Habeas & Prison Litigation Case Law Update, number 5, February 1997 • a publication of the Federal Judicial Center 3

should be applied, the court concluded that the same result

was warranted under the new standard.

“[W]e are convinced that the record clearly and convincingly shows that [petitioner’s] trial counsel was ineffective

even if the AEDPA establishes a more deferential standard [of

review of state court factual findings].” Under amended

§2254(d)(1), a petition may be granted if the state court’s

adjudication of the claim “involved an unreasonable application of clearly established Federal law.” The appellate court

found that petitioner’s counsel’s performance “was severely

deficient and his errors were ‘so serious that counsel was not

functioning as the “counsel” guaranteed by the Sixth Amendment.’ . . . As a result of his errors Berryman was deprived of

a fair trial. . . . Given that woefully inadequate and deficient

performance and the prejudice that performance caused

Berryman, we cannot uphold the state court’s determination

that trial counsel had a reasonable trial strategy. That determination was clearly an unreasonable application of [Supreme

Court precedent] to the facts of this case.”

Under §2254(d)(2), the writ may also be granted if the

state court decision “was based on an unreasonable determination of the facts” presented in the state court. Section

2254(e)(1) requires that “a determination of a factual issue

made by a State court shall be presumed to be correct.” The

appellate court assumed arguendo that §2254(e)(1) established a more deferential standard of review. “However, even

applying the most conceivably deferential standard to the

factual determination of the state court that trial counsel had

a strategy, we conclude that that determination was unreasonable in light of the evidence presented in the state court. . . .

Counsel’s own testimony, and the record of his actions at the

trial, plainly demonstrate that the state court’s factual determination that trial counsel had a strategy was an unreasonable

determination in light of the evidence presented in the state

court proceedings.” The court affirmed the order granting the

writ of habeas corpus.

Berryman v. Morton, 100 F.3d 1089, 1102–05 (3d Cir. 1996).

See also Fern v. Gramley, 99 F.3d 255, 260 (7th Cir. 1996) (in

appeal initially filed in 1994, state court decision was error

under old or new §2254 standard and district court should not

have denied petition); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th

Cir. 1996) (where AEDPA was enacted after district court had

granted §2254 petition and after opening briefs were filed in

appeal by state, appellate court affirmed under old law and

concluded that “whether or not the Act applies to pending

appeals, our decision would be the same” because “the state

court decision was contrary to clearly established federal law

as determined by the [Supreme] Court”).

Retroactivity

En banc Seventh Circuit holds that AEDPA would not be

applied to rehearing en banc where original habeas petitions

and appeal from denial of writ were filed and heard before

Act took effect. Petitioner filed his first federal habeas petition, challenging only his conviction, in 1992 while his appeal

from his death sentence was pending in the state supreme

court. Over the next three years the district court denied the

habeas petition, the state court affirmed the death sentence,

and the Seventh Circuit affirmed the habeas denial. In November 1995, two weeks before his scheduled execution, petitioner filed a habeas petition in the district court challenging

his death sentence. The district court dismissed the petition as

an abuse of the writ. An appellate panel affirmed the dismissal,

but shortly before the scheduled execution the court granted

a stay and decided to hear the case en banc. The case was heard

in December 1995, but before a decision was reached the

Antiterrorism and Effective Death Penalty Act of 1996 was

passed. The court ordered that the case be reheard, in order to

consider the bearing of the new Act on the petition.

Before deciding the effect of the AEDPA on the petition, the

en banc court decided the preliminary issue of whether the

current petition was a second petition or, as petitioner argued,

a first petition attacking his sentence as distinct from the

petition attacking his conviction. The court concluded that it

was a second petition, and that petitioners cannot bifurcate

their petitions in this way so as to avoid the AEDPA’S one-year

statute of limitations on habeas petitions in capital cases or its

requirements for second or successive petitions. “With immaterial qualifications the year runs from ‘the date on which the

judgment became final by the conclusion of direct review,’ and

we take ‘judgment’ to refer to the sentence rather than to the

conviction.” The present petition did not satisfy the new law’s

criteria for filing a second or successive petition, but the court

then held that the new law should not be applied here.

Citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994), and

its decision in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en

banc), the court noted that a new law “takes effect on the date

of enactment unless the effect in a case or class of cases would

be retroactive in the sense of ‘attach[ing] new legal consequences to events completed before its enactment.’ . . . That is

an exact description of what would happen if the new section

2244(b)(2) were applied to Burris’s second petition. The

completed event to which the new statute attaches new legal

consequences is the filing of his first petition, which was

limited to issues arising at the guilt phase of the criminal

proceeding.” Assuming that the second petition was not an

abuse of the writ, as the court went on to hold, “then the new

law, if applied retroactively, would indeed attach a new legal

consequence to that completed event, the filing of the first

petition: the consequence would be that he could not file a

second petition.” The petition was remanded to the district

court for a hearing on the merits.

Burris v. Parke, 95 F.3d 465, 467–69 (7th Cir. 1996) (en

banc). See also Roldan v. United States, 96 F.3d 1013, 1014 (7th

Cir. 1996) (holding that new provision of §2255 setting

standards for filing second or successive petitions could be

applied to reject petitioner’s third appeal, still pending on

April 24, 1996, distinguishing Burris because “there is little

likelihood that the change of law has bushwacked or

mousetrapped” petitioner). Cf. Johnston v. Love, 940 F. Supp.

738, 744 n.2 (E.D. Pa. 1996) (declining to apply §2254
4 Habeas & Prison Litigation Case Law Update, number 5, February 1997 • a publication of the Federal Judicial Center

retroactively to petition filed June 14, 1995); Kowalczyk v.

United States, 936 F. Supp. 1127, 1132 n.1 (E.D.N.Y. 1996)

(1996 amendments should not be applied retroactively to

§ 2255 habeas petition filed on Dec. 7, 1994).

state a valid claim and the court affirmed the district court’s

denial of his §2255 motion.

United States v. Lopez, 100 F.3d 113, 116–17 (10th Cir.

1996). Accord Flowers v. Hanks, 941 F. Supp. 765, 769–71

(N.D. Ind. 1996) (allowing petition to be filed June 26, 1996,

although conviction would be time-barred under amended

§ 2444(d)(1), concluding that “for all § 2254 actions which

accrued before the effective date of the AEDPA—April 24,

1996—petitioners would be entitled to a grace period in the

amount of the limitations period to file a timely suit. Therefore, the court finds that a one-year grace period is a reasonable

time frame in which to apprise future petitioners that their

pre-accrued claims must be filed within one year of the

enactment of the AEDPA or be barred by § 2244(d)(1).”). See

also Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc)

(reaching a similar conclusion in dicta). Contra Curtis v. Class,

939 F. Supp. 703, 706–08 (D.S.D. 1996) (concluding

petitioner’s second federal habeas petition is time-barred by

§2244(d) and would fail under § 2254(d)(2) anyway—“The

statute delineating the scope of habeas proceedings provides

prospective relief given its remedial nature. . . . Thus, amended

versions of 28 U.S.C. §§ 2244, 2253, and 2254 would apply to

petitioner’s case since their application would not be considered to be retroactive.” Furthermore, §2244(d) is “procedural

in nature, [and] its application in petitioner’s case would not

be retroactive.”); Griffin v. Endicott, 932 F. Supp. 231, 232 (E.D.

Wis. 1996) (rejecting claim that applying §2244(d) to petition

filed June 7, 1996, violated Ex Post Facto Clause).

Note: On Jan. 10, 1997, the Supreme Court granted certiorari in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc).

Question presented: “Did the court of appeals correctly conclude that Congress, despite explicit provision in Section

107(c) of Antiterrorism and Effective Death Penalty Act, failed

to specify extent to which statute’s habeas corpus revisions are

to apply retroactively to pending habeas cases and, if so, did

court correctly interpret U.S. Supreme Court’s retroactivity

jurisprudence to depend upon proof of actual reliance interests and to create presumption that habeas-curtailing statutes

apply retroactively?”

Tenth Circuit holds that the one-year period of limitation in

§2244(d) should not be applied to §2255 appeal when the

one-year period expired before April 24, 1996. “Section

2255, as revised by the Act, precludes the filing of a §2255

motion more than one year after conviction, as is the case here.

. . . Lopez filed a notice of appeal with this court on February

8, 1996, before the effective date of the Act, but no briefs were

filed until May 7, after the Act became effective. . . . [T]he act

of filing a §2255 motion more than one year after conviction

now has an entirely new legal consequence. . . . [R]etroactive

application of the one-year requirement would therefore be

inconsistent with Landgraf.” However, defendant failed to

PRISON LITIGATION

Proceedings In Forma Pauperis

Fifth Circuit holds that the PLRA repeals Fed. R. App. P. 24(a)

to the extent the rule actually conflicts with it, and decides

other issues of first impression regarding IFP provisions.

Before enactment of the Prison Litigation Reform Act, the

district court certified plaintiff to proceed in forma pauperis

in his 42 U.S.C. §1983 action. After the PLRA took effect, the

district court dismissed the suit as frivolous under the old

provisions of 28 U.S.C. § 1915(d). It did not decertify plaintiff’s IFP status and he filed a timely appeal. Since the

PLRA amended §1915 to require new filing procedures and

fees in prisoner IFP cases, the Fifth Circuit had to decide

several issues of first impression: whether the Act amended

Fed. R. App. P. 24(a); whether to require the plaintiff to replead his pauper status; and whether to assess him a fee for

the appeal.

The court noted that the Act would require the plaintiff “to

reapply to this court with a new affidavit,” but Rule 24(a)

“would carry forward his i.f.p. certification from the district

court. Faced with competing mandates, we must decide

whether Congress’s procedural litigation reforms in the PLRA

take precedence over the rules of appellate procedure.” It

analyzed two limits to Congress’s power to amend the Federal

Rules of Appellate Procedure—the so-called ‘abrogation

clause’ in the Rules Enabling Act that “seems to invalidate

all federal statutes ‘in conflict’ with court rules,” and “the

general disfavor with which we view implicit amendment

or repeal of statutes.” The abrogation clause did not invalidate the recently enacted PLRA because the clause applies only

to statutes passed before the effective date of the rule in

question. As to the disfavored implicit repeal of Rule 24, the

court relied upon a long-established exception that provides

that when “two acts are in irreconcilable conflict, the later act

to the extent of the conflict constitutes an implied repeal of

the earlier one.” Therefore, the PLRA repeals Rule 24(a) to

the extent they actually conflict, and the Act governs the

plaintiff’s appeal.
Habeas & Prison Litigation Case Law Update, number 5, February 1997 • a publication of the Federal Judicial Center 5

Even though the plaintiff’s IFP request in the district court

did not meet the § 1915(a)(2) requirement of a trust fund

account statement, the Fifth Circuit declined to dismiss his

appeal altogether, citing several equitable considerations.

The court said it would hear the appeal without requiring the

plaintiff to file a new notice of appeal or new briefs if within

thirty days he filed a new petition to proceed IFP consistent

with § 1915(a). Although the PLRA’s fee requirements also

take precedence over conflicting provisions in Rule 24, the

court said it would not assess fees against the plaintiff

“unless and until he decides to reapply for i.f.p. status.” The

court chose not to assess the plaintiff “a filing fee today so

that the fee might have its intended deterrent effect when [he]

later decides whether to proceed. . . . [W]e will consider his

resubmission for i.f.p. status to be the filing of an appeal in

forma pauperis under the Act.”

Jackson v. Stinnett, 102 F.3d 132, 134–37 (5th Cir. 1996).

Fifth Circuit rules that §1915(g) applies to appeals pending

on the PLRA’s effective date and finds that appellant has three

or more strikes that bar IFP status. The Fifth Circuit considered whether new 28 U.S.C. §1915(g), effective April 26,

1996, applies to an appeal filed December 14, 1995. The

provision bars a prisoner from bringing a civil action or appeal

in forma pauperis if he or she “has, on 3 or more prior

occasions . . . brought an action or appeal . . . that was dismissed

on the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted, unless the prisoner

is under imminent danger of serious physical injury.” The

court concluded that §1915(g) “does not affect a prisoner’s

substantive rights, and it does not block his or her access to the

courts. We therefore find that application of this procedural

rule to pending appeals does not raise the retroactivity concerns discussed in Landgraf [v. USI Film Prods., 511 U.S. 244

(1994)].” The court of appeals further held that the provision

“does not raise retroactivity concerns [because] it does not

impose new or additional liabilities [under Landgraf], but

instead requires collection of a fee that was always due.” It

stressed that “[b]efore the PLRA, courts routinely revoked a

prisoner’s ability to proceed i.f.p. after numerous dismissals.”

Thus, §1915(g) “merely codifies an existing practice . . .

designed to prevent prisoners from abusing the i.f.p. privilege.”

Noting that Congress had not provided any instructions to

aid the court in determining what counts as a dismissal under

the section, the Fifth Circuit analyzed in detail the “different

and creative dismissal combinations” reflected in the

appellant’s record. It held that “by using the phrase ‘dismissed

on the grounds that it is frivolous,’ Congress did not mean to

include dismissals later reversed.” It also declined to count

against the appellant “the district court’s dismissal as frivolous

in the instant case—at least for now,” ruling that dismissals

“include only those for which appeal has been exhausted or

waived.” Referring to another case brought by the defendant,

the court concluded that “Congress would have us count both

the dismissal in the district court and the separate dismissal of

the appeal as frivolous.” The court held that the appellant had

three or more strikes under the statute and could only pursue

another IFP action in federal court if he is in “imminent danger

of serious physical injury.”

Adepegba v. Hammons, No. 95-31249 (5th Cir. Dec. 31,

1996) (Garza, J.).

Fifth Circuit rules that the PLRA does not apply to §2255

proceedings. In ruling that the Act is inapplicable to 28

U.S.C. §2255 petitions, the Fifth Circuit expressly adopted

the reasoning of Santana v. United States, 98 F.3d 752 (3d Cir.

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

and Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996), which “all

recognize habeas corpus proceedings are technically

civil actions . . . but find several considerations that counsel

against applying the Act to habeas petitions.”

United States v. Cole, 101 F.3d 1076, 1077 (5th Cir. 1996).

Third Circuit holds that the PLRA’s fee requirements do

not apply to mandamus petitions, “regardless of the nature

of the underlying actions.” Plaintiff petitioned for a writ of

mandamus requiring the district court to act promptly on his

request for habeas corpus relief; he asked for leave to file in

forma pauperis. Finding that a mandamus petition is neither

a “civil action” nor an “appeal” within the plain meaning of the

PLRA’s text, the Third Circuit considered congressional intent.

“The clear import of the PLRA is to curtail frivolous prison

litigation, namely that brought under 42 U.S.C. §1983 and

the Federal Torts Claims Act. . . . As a result, we agree with the

courts of appeals that have held that where the underlying

litigation is criminal, or otherwise of the type that Congress

did not intend to curtail, the petition for mandamus need not

comply with the PLRA” (citing Martin v. United States, 96 F.3d

853 (7th Cir. 1996) and In re Nagy, 89 F.3d 115 (2d Cir. 1996)).

The court added that, in light of the important role mandamus

petitions have, it is unlikely Congress intended to subject to

PLRA restrictions “bona fide mandamus petitions, regardless

of the nature of the underlying actions.” Since the court had

previously ruled in Santana v. United States, 98 F.3d 752 (3d

Cir. 1996), that habeas actions are not subject to the PLRA’s fee

provisions, it held that the plaintiff was not required to pay the

$100 filing fee.

Considering the problem posed by litigants “masking as a

mandamus petition” civil actions or appeals that would otherwise be subject to the Act, the court acknowledged the

difficulty this could cause “in the processing of pro se liti–

gation . . . particularly in the area of docketing.” Clerks untrained in the law “will have to make a decision as to whether

the PLRA applies in order to insure that the litigant has filed

the proper documents.” The Third Circuit decided “that it

will be useful for the Clerk’s office to posit that a paper styled

as a mandamus petition will not be subject to the PLRA unless

it appears clearly that the styling is an effort to avoid the

requirements of that Act.” It suggested that the clerk’s office
6 Habeas & Prison Litigation Case Law Update, number 5, February 1997 • a publication of the Federal Judicial Center

follow procedures set out in a footnote and stressed that

“treatment of questionable mandamus petitions must be subject to review by the Court.”

Madden v. Myers, 102 F.3d 74, 76–78 (3d Cir. 1996).

District court directs clerk to remove first “strike” for

frivolous dismissal under Fed. R. Civ. P. 60(b). On September

23, 1996, the district court dismissed the plaintiff’s complaint

as frivolous pursuant to 28 U.S.C. §1915(e) and directed the

clerk of court to “flag” plaintiff’s first frivolous dismissal under

the PLRA. The plaintiff filed a motion for reconsideration

arguing that the dismissal should not count as his “first strike”

because of “a convergence of problems” that caused him to file

the action reluctantly “in order to obtain legal information

with which to litigate an already-pending (and possibly meritorious) claim.” While he was on punitive segregation in

August 1996, the plaintiff requested from the prison librarian

a copy of a district court standing order, but the librarian sent

him instead copies of various federal civil rights and habeas

corpus forms. The plaintiff then sought assistance from the

warden, but received no response. During this period, the

existing Prisoner Assistance Project was being dismantled and

plaintiff failed to receive information on how to contact the

new legal services provider.

Given these circumstances, the court said, it was understandable that he would turn to the federal court. Although he

should have written a letter rather than filing a civil complaint,

in light of the situation it would be “manifestly, unduly harsh

and inappropriately punitive” to assign a strike to the plaintiff.

“[W]here as here a prisoner’s civil action, though legally

misguided, was undertaken in evident good faith solely to

remove a perceived barrier to access to the courts, remedial

action is both warranted and just.” The district court did not

believe its action constituted “an improper ‘amendment’ of the

statute. . . . [T]here is no reason to think that, even under the

statute, an inmate may not seek relief under Fed. R. Civ. P.

60(b)(6).”

Dalvin v. Beshears, 943 F. Supp. 578, 578–79 (D. Md. 1996).

Remedies for Prison Conditions

Fourth Circuit upholds constitutionality of the PLRA’s immediate termination provisions and construes the term “Federal right” in § 3626(b)(2). A class of inmates appealed a

district court order terminating a 1986 consent decree pertaining to conditions in South Carolina prisons. The district court

based its ruling on the lack of court findings, required by 18

U.S.C. §3626(b)(2) as amended by the PLRA, that “the relief

is narrowly drawn, extends no further than necessary to

correct the violation of the Federal right, and is the least

intrusive means necessary to correct the violation of the

Federal right.”

On appeal, the inmates argued that §3626(b)(2) violates

the separation of powers doctrine in two ways: first, by

requiring courts to reopen final judgments and, second, by

prescribing a rule of decision without changing the underlying law. The court of appeals rejected both contentions. The

consent decree was not like a judgment for money damages

but was “akin to a final judgment granting injunctive relief,

and thus is subject to subsequent changes in the law.” Furthermore, the statute amends the applicable law pertaining to the

district court’s authority to award relief greater than that

required by the Eighth Amendment, and it does not dictate a

rule of decision because “it does not purport to state how

much relief is more than necessary” to correct the violation of

a federal right.

The inmates also contended that the statute must survive

strict scrutiny because it “singles out a class of prison inmates

and burdens their fundamental right of access to the courts”

in violation of the Fifth Amendment’s equal protection

principles. The Fourth Circuit found that “by its terms

§3626(b)(2) neither prohibits prisoners from filing civil suits

challenging the conditions of their confinement nor impedes

their ability to do so.” It found no merit, either, in the further

assertion that, by prohibiting the inmates from enforcing the

terms of the consent decree, the statute burdens their “fundamental right ‘to enforce the successful result’ of a civil suit.”

Although “the right of access to the courts necessarily includes the right to enforce a judgment once it is obtained,” the

court of appeals held that §3626(b)(2) “does not burden this

right; it merely limits the substantive relief to which the

Inmates are entitled.” The statute is “an eminently rational

means of accomplishing” the congressional purpose of “preserving state sovereignty by protecting states from overzealous supervision by the federal courts in the area of prison

conditions litigation.”

The appellate court rejected the inmates’ claim, based on

the vested-rights doctrine, that §3626(b)(2) deprived them

of “a property interest—the rights afforded by the consent

decree—without due process of law.” The inmates’ further

“due process challenge to §3626(b)(2) on the basis that it

operates retroactively” was equally meritless. Relying on

the rule stated in Pension Benefit Guar. Corp. v. R.A. Gray & Co.,

467 U.S. 717 (1984), that the retroactive application

of legislation must be justified by a rational legislative purpose, the inmates argued that even if the prospective application of the statute is constitutional, “there is no rational

legislative purpose justifying [its] retroactive application.”

This argument was answered by Landgraf v. USI Film

Prods., 511 U.S. 244 (1994), “in which the Court noted the

well-settled principle that ‘[w]hen the . . . statute authorizes

or affects the propriety of prospective relief, application of

the new provision is not retroactive.’ . . . That is precisely the

case here.”

The court also refused to “construe the term ‘Federal right’

to include prospective relief contained in a consent decree....

Obviously, such a reading renders the provision nonsensical

because under it, the district court would never be able to

terminate a consent decree.” It held that “the term ‘Federal

right’ as used in §3626(b)(2) does not include rights con-
Habeas & Prison Litigation Case Law Update, number 5, February 1997 • a publication of the Federal Judicial Center 7

ferred by consent decrees providing relief greater than that

required by federal law.”

Plyler v. Moore, 100 F.3d 365, 369–75 (4th Cir. 1996).

District court holds that the PLRA’s termination provisions

violate separation of powers principles. Defendants moved,

under 18 U.S.C. §3626(b)(2), to terminate relief ordered by a

1985 consent decree. They argued that the PLRA terminated

the decree and orders stemming from it because the decree was

not based on findings required by the statute that “the relief is

narrowly drawn, extends no further than necessary to correct

the violation of the Federal right, and is the least intrusive

means necessary to correct the violation of the Federal right.”

The United States as intervenor contended “that what saves

the termination provisions of the Act from being unconstitutional is §3626(b)(3), which prohibits termination if the

court makes findings of constitutional violations and then

uses the requisite tests to determine whether such relief shall

continue.” Plaintiffs argued that the termination provisions

violate separation of powers principles, as well as due process

and equal protection rights.

The district court emphasized that the “plaintiff class and

the defendant . . . labored between 1981 and 1985 to reach an

agreement which recognized the existence of constitutional

violations in prison conditions and spelled out terms in

intricate detail as to how these conditions would be remedied.” By the decree’s terms constitutional findings were not

necessary. A consent decree “allows parties to save the exhausting time, money, and resources involved” in making a

finding of past constitutional violations “in order to concentrate on present conditions.” Thus, the PLRA’s requirement

that the judgment be terminated unless those constitutional

findings are made “imperiously transforms a consent decree’s

strength into a nullity.”

The court reviewed the standard for modification of a

consent decree set out in Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367, 383 (1992), noting the Supreme Court’s admonition that a proposed modification “should not strive to

rewrite a consent decree so that it conforms to the constitutional floor” and its holding that “a consent decree is a final

judgment that may be reopened only to the extent that equity

requires.” The district court found that “[t]he PLRA completely re-writes the standard for modification in prison litigation, making consent decrees subject to the constitutional

floor—in direct contrast to Rufo.” The requirement of

§ 3626(b)(3) that a court make new findings for an existing

consent decree “represents an unjustifiable encroachment of

the legislative and executive branches into the domain of

the judiciary.”

According to the court, the real issue was “can injunctive

relief based on past negotiations, cost assessments, and compromises between parties be overturned by an act of Congress?” Under Rufo, the court could modify such relief if

required to meet a substantial change in fact or law. “Extending modification of a decree by a court to the virtual termination of an entire group of decrees by Congress exceeds the

limits of congressional authority.”

The court further concluded that two possible exceptions

to the separation of powers doctrine alluded to in Plaut v.

Spendthrift Farm, Inc., 115 S. Ct. 1447, 1461-62 (1995)—

legislative action dealing with prospective relief and a court’s

power to make equitable exceptions to an otherwise applicable rule of finality—did not apply to this case.

To terminate the consent decree altogether “would unjustifiably deny” plaintiffs the relief for which “they traded a

potential finding of unconstitutionality” and “to which they

are entitled by the power of this court—a power that cannot

be taken away by Congress.”

Hadix v. Johnson, No. 80-73581 (E.D. Mich. Nov. 1, 1996)

(Feikens, J.). See also Gavin v. Ray, No. 4-78-CV-70062 (S.D.

Iowa Sept. 18, 1996) (unpublished) (“the consent decree in

this case, including the prospective relief ordered, is a final

judgment affecting private rights, and . . . the PLRA’s termination provisions violate separation of powers principles”).

District court rules that, with no showing of a “current

or ongoing violation” of a federal right and in the absence of

constitutional challenge, the PLRA mandates termination of

consent judgment. Under 18 U.S.C. § 3626(b)(2), defendants

moved to terminate a consent judgment entered on May 28,

1982, directing them to adopt and implement a procedure

regarding the practice of religion by Muslim inmates. Because

the judgment was granted without the findings now required

by the statute, they contended it should be terminated immediately. Plaintiffs countered that under § 3626(b)(3) the consent decree did not have to be terminated if the court made the

written findings specified in that provision. They argued that

“the relief provided in the judgment remains necessary

to protect the plaintiffs’ rights under the Religious Freedom

Restoration Act (RFRA).”

The question, the court said, “is whether the relief provided

by the consent judgment remains necessary. The language of

§ 3626(b)(3) seems to clearly and unambiguously require a

finding of a current or ongoing violation of a federal right.”

The district court found nothing in the record to support such

a finding, and “an unsupported assertion that the defendants

might alter the status quo to the extent a violation occurs

appears to be too speculative to satisfy §3626(b)(3) . . . [and]

would also be inconsistent with the goal of the PLRA, and

Supreme Court holdings, to limit judicial intervention in the

administration of a state’s prison system.” Even if the decree is

terminated, the court said, Muslim prisoners’ rights would

still be protected under the First Amendment and the RFRA. In

granting the defendants’ motion to terminate the consent

decree, the court noted that, unlike other cases that have dealt

with similar motions, plaintiffs in this case did not raise any

constitutional issues.

James v. Lash, Nos. S 73-5 AS, 3687 (N.D. Ind. Dec. 13,

1996) (Sharp, J.).
Habeas & Prison Litigation Case Law Update, no. 5, Feb. 1997

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

Suits by Prisoners

District court holds that the PLRA-mandated cap on attorneys’ fees applies to work done after effective date of the Act.

Plaintiffs’ counsel requested fees for work performed between

Jan. 1, 1996, and June 30, 1996, based on the established rate

of pay of $150 per hour. Defendants argued that the hours

billed for work performed after April 26, 1996, were subject to

the limitation on fees set out in the PLRA. As amended by the

Act, 42 U.S.C. § 1997e provides that no award of attorneys’

fees in a case covered by the PLRA “shall be based on an hourly

rate greater than 150 percent of the hourly rate established . . .

for payment of court-appointed counsel” under 18 U.S.C.

§ 3006A. The district court calculated that plaintiffs’ counsel

would thus be entitled to a maximum of $112.50 per hour

rather than $150.

The court pointed out that only one section of the PLRA—

dealing with appropriate remedies for prison conditions—

“specifies that it is to be applied to pending cases,” and the

section contains no attorneys’ fees limitation. It noted the

plaintiffs’ argument that because Congress had specifically

removed a limitation on attorneys’ fees from that section,

“[a]pplication of the PLRA to this case . . . would specifically

read into the statute the very fee limitation Congress eliminated.” But the district court found this “negative inference

. . . too attenuated to support a finding of congressional

intent,” and turned to the question of retroactive effect. Based

on Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the court

rejected the plaintiffs’ argument that implementing such a

drastic reduction in their counsel’s fees eleven years after the

consent judgment was entered “would occur without providing ‘ample notice’” and would disrupt the plaintiffs’ “‘settled

expectations’ in having their counsel paid comparably to the

prevailing market rate.” Since court-appointed counsel “are

paid the maximum amount allowed by statute, and . . . the

PLRA’s cap is 150% of that amount,” the court could not say

“that Congress’s intent to limit plaintiffs’ counsel to $112.50

per hour is so fundamentally unfair as to result in manifest

injustice. Nor can I say that this legislation unreasonably

disrupts settled expectations.” The court held that the PLRA’s

limit on attorneys’ fees applies to work performed after April

26, 1996.

Hadix v. Johnson, No. CIV. A. 80-73581 (E.D. Mich. Dec. 4,

1996) (Feikens, J.).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 6, April 1997

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Retroactivity

Ninth Circuit holds that AEDPA will not be applied to cases

filed before April 24, 1996. “On August 29, 1996, the Court

directed the parties to submit briefs on the question of

whether the Antiterrorism and Effective Death Penalty Act of

1996 [AEDPA] . . . applied to cases filed prior to the Act’s

effective date. . . . We hold that the amendments to Chapter

153 of Title 28 of the United States Code contained in Title I

of the Act do not apply to cases filed in the federal courts of this

Circuit prior to the Act’s effective date of April 24, 1996. A full

opinion detailing the rationale for our decision, along with a

decision on the merits, will be forthcoming, together with any

separate concurring or dissenting opinions which members of

the en banc panel may wish to file.” (Editor’s Note: As of

March 27, 1997, no further opinions had been published.)

Jeffries v. Wood, 103 F.3d 827, 827 (9th Cir. 1996) (en banc)

(per curiam) (three judges dissented from this order).

Certificate of Appealability

Four circuits hold that district courts can issue certificates

of appealability. In Hunter v. United States, 101 F.3d 1565

(11th Cir. 1996) (en banc), the Eleventh Circuit held that

district courts have the authority to issue certificates of appealability (COA) under amended 28 U.S.C. §2253(c)(1). Four

other circuits have now reached the same conclusion.

Three of the circuits found that §2253(c)(1), which allows

a COA to be issued only by “a circuit justice or judge,” seems

to conflict with Fed. R. App. P. 22(b), which expressly allows

district judges to issue COA’s. Agreeing with Hunter, these

courts determined that “judge” in §2253(c)(1) should be read

to include circuit or district judges to harmonize it with the

clear language of Rule 22(b). See United States v. Asrar, No. 96-

56805 (9th Cir. Mar. 3, 1997) (Tashima, J.) (“We agree with

the Eleventh Circuit that under the AEDPA district courts

possess the authority to issue certificates of appealability in

section 2255 as well as section 2254 proceedings.”); Houchin

v. Zavaras, No. 96-1187 (10th Cir. Feb. 27, 1997) (Henry, J.)

(reconciling apparent conflict by holding district judges have

authority to issue certificates in §2254 cases; declining, however, to rule on whether authority extends to §2255 cases);

Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1066–73 (6th

Cir. 1997) (“Because neither the legislative history nor any

overwhelming policy considerations support a contrary reading, we hold that district judges may issue certificates of

appealability under the AEDPA.”).

Without concluding that § 2253 could be read to allow

district judges to issue COA’s, the Fifth Circuit held that “[i]f

there is any inconsistency, we would construe the express

grant of authority to district courts [in Rule 22(b)] as compelling, and we hold that district courts retain the authority to

issue certificates of appealability for §2254 petitions under the

AEDPA.” Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997) (as

amended Feb. 20, 1997).

Sixth Circuit holds that certificate of appealability requirements apply to application for certificate of probable

cause pending on April 24, 1996. Petitioner’s §2254 habeas

claim was denied by the district court on March 25, 1996, and

he filed a notice of appeal and request for certificate of

probable cause (CPC) on April 21, 1996. The district court

issued a CPC on May 1. However, the appellate court remanded, concluding that the new standards for a certificate of

appealability should have been applied once the AEDPA took

effect on April 24. Because petitioner raised only constitutional claims, the change from having to show the denial of a

“federal right” for a CPC to having to show denial of a

“constitutional right” for a COA did not place an extra burden

on petitioner: “at least so far as this case is concerned, the AEDPA

merely codifies the [earlier] standard.”

The court also concluded that the requirement in

§2253(c)(3), that the COA “shall indicate which specific issue

or issues satisfy the showing required” for the issuance of a

COA, could be applied. Although this specificity requirement

could limit the issues on appeal, unlike the prior law which

allowed the entire appeal to go forward with a CPC, petitioner

“retains the right to request appellate consideration of his

entire petition, and the change to the law does not impair his

rights.” In addition, the change was procedural in nature and

“applie[d] more to the district court’s conduct than to

[petitioner’s], so under the Landgraf analysis it could be

applied retroactively.

Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073–76

(6th Cir. 1997). See also In re Certificates of Appealability, 106

F.3d 1306, 1307–08 (6th Cir. 1997) (order “set[ting] forth the
2 Habeas & Prison Litigation Case Law Update, number 6, April 1997 • a publication of the Federal Judicial Center

administrative procedures that are to be used to implement”

the decision in Lyons regarding the handling of COA’s in

district and appellate courts). Cf. Brown v. Cain, 104 F.3d 744,

749 (5th Cir. 1997) (“the COA requirement of the AEDPA will

not apply to habeas appellants who have already obtained

CPC’s”; distinguishing holding in Drinkard v. Johnson, 97 F.3d

751, 756 (5th Cir. 1996) (apply new standards to pending

petitions)).

Second or Successive Petitions

Second Circuit holds that leave to file second petition under

§ 2244(b) is not required if first petition was dismissed

without prejudice; Seventh Circuit holds same if first petition was dismissed as insufficient. In 1990, the Second

Circuit petitioner’s first federal habeas petition was dismissed

for failure to exhaust state remedies without prejudice to

refiling. On Sept. 6, 1996, after exhausting available state

remedies, petitioner filed a motion in the Second Circuit for

authorization to file a second habeas petition in the district

court pursuant to 28 U.S.C. § 2244(b)(3)(A), as amended by

the AEDPA. The Act “does not define what is meant by a ‘second

or successive’ application. The issue presented by this motion

is whether a habeas petition qualifies as a ‘second or successive’ application within the meaning of §2244, where it is filed

after a prior petition is dismissed without prejudice for failure

to exhaust state remedies.”

The court found that § 2244 should not be applied in this

situation. It first noted that, in upholding the new

“gatekeeping” provisions in § 2244, the Supreme Court, in

Felker v. Turpin, 116 S. Ct. 2333 (1996), concluded that the

new restrictions are not an unconstitutional suspension of the

writ of habeas corpus because they are “well within” the

“evolutionary process” putting restraints on “abuse of the

writ.” Before the AEDPA, the court noted that “a petition filed

after a previously submitted petition was dismissed without

prejudice was not considered an abuse of the writ. The abuse

of the writ doctrine is rooted in the need for finality and

concerns of comity . . . ; however, neither concern is implicated

when a petition is filed after a prior petition is dismissed

without prejudice for failure to exhaust state remedies.”

“When a petition is dismissed without prejudice for failure

to exhaust, there is no federal adjudication on the merits. To

foreclose further habeas review in such cases would not curb

abuses of the writ, but rather would bar federal habeas review

altogether. Although Congress plainly intended the AEDPA

amendments to work significant procedural changes in habeas corpus review, nothing in the legislative history or Felker

suggests that Congress wished to depart from the longstanding and widely accepted rule . . . that no barrier to habeas

review arises from the dismissal of a petition on procedural

grounds without prejudice to refiling. . . . We, therefore, hold

that a petition filed after a prior petition is dismissed without

prejudice for failure to exhaust state remedies is not a ‘second

or successive’ petition within the meaning of § 2244.”

Camarano v. Irvin, 98 F.3d 44, 45–46 (2d Cir. 1996) (per

curiam). Accord In re Turner, 101 F.3d 1323, 1323–24 (9th

Cir. 1996) (amended § 2244(b)(3) “does not apply to second

or subsequent habeas petitions where the first petition was

dismissed without prejudice for failure to exhaust state

remedies”) (as amended Jan. 21, 1997). See also Chambers v.

United States, 106 F.3d 472, 474–75 (2d Cir. 1997) (previous

§ 2255 petitions filed by prisoner that were, in actuality, §2241

petitions, should have been construed as such and

thus current § 2255 petition will be treated as prisoner’s first:

“a petition asserting a claim to relief available under 28

U.S.C. § 2255 is not a ‘second or successive’ application

where the prior petition(s) sought relief available only under

28 U.S.C. § 2241”).

In the Seventh Circuit case, petitioner’s first §2254 petition

was dismissed in 1992 because he declined to pay a $5 filing

fee. He filed another § 2254 petition in July 1996 in the district

court, which dismissed it for want of jurisdiction in light of

§ 2244(b)(3)(A). On appeal, petitioner argued that this was

actually his first petition, reasoning that because his 1992

petition was dismissed on procedural grounds it was not filed

at all.

Finding, as did the Second Circuit, that § 2244(b) “uses,

but does not define, the phrase ‘second or successive habeas

corpus application,’” the court looked to the applicable preAEDPA law, Rules Governing Section 2254 cases in the United

States District Courts. Rule 9(b) covered dismissal of second

or successive petitions, and the court found that “some

deficient petitions were not treated as initial applications for

purposes of Rule 9(b). When, for example, a petition was

dismissed for failure to exhaust state remedies, no court

treated the renewal of the claim after exhaustion as a second

petition. . . . For the same reasons, the filing and rejection of

a petition as unintelligible or poorly developed does not make

the filing of an enlarged specification a ‘second or successive’

petition; it is better to think of the process as one of filing,

rejection, and amendment.”

In addition, “Rule 2(e) says that a petition will be returned

to the petitioner if it ‘does not substantially comply with the

requirements of rule 2 or rule 3.’ Payment of the filing fee, or

a grant of leave to proceed in forma pauperis, is one of the

requirements in Rule 3(a).” Because petitioner was required

to pay the fee in 1992 and did not, his petition “should have

been ‘returned’ under Rule 2(e). Although the district court

entered in 1992 a document purporting to be a Rule 58

judgment, reciting ‘this case is dismissed,’ an order of this form

was inapt. The petition had not been filed, and it therefore

could not be dismissed.” Therefore, petitioner’s 1996 filing “is

his first for purposes of § 2244(b). Any petition returned

under Rule 2(e) should be disregarded for purposes of

§ 2244(b), as should any petition dismissed to permit exhaustion; but any other outcome is presumptively sufficient to

bring § 2244(b) into play.”

Benton v. Washington, 106 F.3d 162, 163–65 (7th Cir. 1996).
Habeas & Prison Litigation Case Law Update, number 6, April 1997 • a publication of the Federal Judicial Center 3

Seventh and Eleventh Circuits conclude that motion

based on new rule of statutory law does not authorize second

or successive petition; other circuits agree. The defendant in

each circuit filed a second or successive petition under 28

U.S.C. § 2255 for review of his conviction or sentence for

violating 18 U.S.C. § 924(c). Under amended § 2255, “[a]

second or successive motion must be certified as provided in

section 2244 by a panel of the appropriate court of appeals to

contain— . . . (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.”

The Eleventh Circuit petitioner properly filed his request

with the appellate court under § 2244(b)(3)(A), seeking resentencing after Bailey v. United States, 116 S. Ct. 501 (1995),

interpreted the “use” prong of § 924(c) to require active

employment of the weapon. However, the court rejected the

request, holding that “Bailey did not express a new rule of

constitutional law; rather, it merely interpreted a substantive

criminal statute using rules of statutory construction.”

In re Blackshire, 98 F.3d 1293, 1294 (11th Cir. 1996) (per

curiam). Accord United States v. Lorentsen, 106 F.3d 278, 279

(9th Cir. 1997) (certification denied: “Bailey announced only

a new statutory interpretation, not a new rule of constitutional law”); Coleman v. United States, 106 F.3d 339, 341 (10th

Cir. 1997) (per curiam) (“Bailey is not a new rule of constitutional law” and authorization to file second § 2255 petition

is denied).

The Seventh Circuit petitioner did not follow the procedure under § 2244(b)(3), filing a second and, after that was

dismissed, a third § 2255 petition in the district court. He

appealed the dismissal of his third petition, and the Seventh

Circuit had to decide whether to dismiss the appeal or treat it

as a motion under § 2244. “A district court must dismiss a

second or successive petition . . . unless the court of appeals

has given approval for its filing. . . . So Nuñez needs our

approval to begin his collateral attack, and the district court

properly dismissed his petition. What remains is the possibility that the notice of appeal serves as a request for authorization. Treating an appeal in these circumstances as a request for

authorization will speed cases to decision with a minimum of

paperwork, and we therefore think that the appeal should be

so treated when it is practical to make a decision on the basis

of the short appellate record.” Cf. Liriano v. United States, 95

F.3d 119, 122–123 (2d Cir. 1996) (second or successive

habeas petition or § 2255 motion improperly filed in district

court should be transferred to appellate court, which will

notify petitioner or movant of proper procedure under

§ 2244); Coleman v. United States, 106 F.3d 339, 341 (10th Cir.

1997) (per curiam) (agreeing with reasoning of Liriano and

adopting similar procedure); Williams v. Stegall, 945 F. Supp.

145, 147–48 (E.D. Mich. 1996) (holding that amended

§ 2244(b)(3) would be applied to second § 2254 petition that

was pending on April 24, 1996, and dismissing petition for

lack of jurisdiction without prejudice to refiling if authorized

by appellate court under §2244(b)(3)). But cf. Hill v. Straub,

950 F. Supp. 807, 809–10 (E.D. Mich. 1997) (disagreeing with

Williams and holding that §2244(b)(3) would not be applied

to successive petition filed July 17, 1995).

The court then rejected the petition, concluding that

“Bailey is not ‘a new rule of constitutional law’ (emphasis

added); it is simply an interpretation of 18 U.S.C. § 924(c)(1).

. . . What is more, Bailey has not been ‘made retroactive to cases

on collateral review by the Supreme Court.’ . . . The implied

application for leave to file a successive petition under 28

U.S.C. § 2255 is denied.”

Nuñez v. United States, 96 F.3d 990, 991–92 (7th Cir. 1996).

Cf. Hohn v. United States, 99 F.3d 892, 893 (8th Cir. 1996) (per

curiam) (refusing to issue certificate of appealability after

denial of §2255 motion to have § 924(c)(1) sentence set aside

after Bailey; certificate under §2253(c)(2) requires “a substantial showing of the denial of a constitutional right,” and

Bailey claim involves statutory right).

Eleventh Circuit holds that §1983 claims are subject to

the rules governing second or successive habeas petitions;

holds same for motion under Fed. R. Civ. P. 60(b) for relief

from habeas denial. Two state prisoners under sentence of

death filed petitions under 42 U.S.C. § 1983, claiming that the

state’s method of execution constitutes cruel and unusual

punishment. They had previously filed unsuccessful habeas

petitions under 28 U.S.C. § 2254. The district court denied

their claims and they appealed.

“Guided by Gomez v. United States District Court, 503 U.S.

653 . . . (1992), as interpreted by Lonchar v. Thomas, . . . 116

S. Ct. 1293, 1301 . . . (1996), we conclude that Plaintiffs’

§ 1983 claim is subject to the procedural requirements for

bringing a second or successive habeas claim. . . . Gomez

held that a plaintiff cannot escape the rules regarding

second or successive habeas petitions by simply filing a §1983

claim.”

“We treat Plaintiffs’ §1983 cruel and unusual punishment

claim as the functional equivalent of a second habeas petition,

. . . and apply the rules regulating second or successive habeas

petitions. Because Plaintiffs failed to apply for permission to

file a second habeas petition as required by 28 U.S.C.

§ 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 . . . , the district court was

without authority to consider their request for relief.” The

court went on to hold that it would have denied any application to file a second petition because neither plaintiff could

meet the requirements of § 2244.

Felker v. Turpin, 101 F.3d 95, 96–97 (11th Cir. 1996) (per

curiam).

In the second case, one of the inmates from above filed a

motion in the district court under Fed. R. Civ. P. 60(b) seeking

relief from that court’s 1994 denial of his § 2254 petition. The

court denied the motion, holding that it was untimely and that

it was tantamount to a second or successive habeas petition,

which under § 2244(b)(3)(A) required authorization from

the appellate court. The inmate filed a notice of appeal and
4 Habeas & Prison Litigation Case Law Update, number 6, April 1997 • a publication of the Federal Judicial Center

an application for a certificate of probable cause or appealability in the Eleventh Circuit.

The appellate court agreed with the district court and

denied relief. “[T]he established law of this circuit, like the

decisions . . . from other circuits, forecloses [the] position

that Rule 60(b) motions are not constrained by successive

petition rules. . . . Rule 60(b) cannot be used to circumvent

restraints on successive habeas petitions. That was true

before the Antiterrorism and Effective Death Penalty Act was

enacted, and it is equally true, if not more so, under the

new act.”

The inmate also argued that the AEDPA should not be

applied “because the underlying ruling that he seeks to

amend, the denial of his first habeas petition, became final

with the denial of rehearing on certiorari on April 15, 1996. . . .

However, in Felker [v. Turpin], 116 S. Ct. 2333 . . . (1996), the

Supreme Court applied the successive petition restrictions

of the new act . . . to Felker’s attempt to file a second habeas

proceeding after the effective date of the act, even though

his first habeas petition had been filed and decided before.

Likewise, we hold that the successive petition restrictions

contained in the amendments to § 2244(b) apply to Rule

60(b) proceedings, even where those proceedings seek to

amend a judgment that became final before the effective date

of the amendments.”

The court then held that “even if we treat Felker’s application for a certificate of appealability as a request that we

authorize him to file a second or successive habeas application, such a request is due to be denied, because the claims

do not fall within the § 2244(b)(2)(A) or (B) exception.”

Felker v. Turpin, 101 F.3d 657, 660–61 (11th Cir. 1996) (per

curiam).

Special Procedures in Capital Cases

Fifth Circuit holds that Texas does not meet requirements

for the AEDPA’s special habeas procedures in capital cases. A

Texas death row inmate’s federal habeas petition was denied

by the district court in March 1996. His appeal and application

for a certificate of probable cause (CPC) were pending when

the AEDPA became effective. Following Drinkard v. Johnson, 97

F.3d 751 (5th Cir. 1996), the appellate court concluded that

amended § 2254 applied to the appeal. It then had to determine whether to apply § 107 of the Act, “Special Habeas Corpus Procedures in Capital Cases” (28 U.S.C. §§ 2261–2266).

The court held that Texas did not meet §2265’s requirements regarding “standards of competency for the appointment of” counsel for death sentence appeals. Although the

state claimed it “has implemented a flexible mechanism for

evaluating the qualifications of prospective counsel . . . on a

case-by-case basis to ensure competence,” the court

“interpret[ed] § 2261(b) to require explicit standards of competency,” and found that the state “has not ‘establishe[d] by

statute, rule of court of last resort, or by another agency

authorized by State law’ specific, mandatory standards for

capital habeas counsel.”

Mata v. Johnson, 99 F.3d 1261, 1266–67 (5th Cir. 1996). See

also Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35,

36 (3d Cir. 1997) (state admitted that it “does not meet the

requirements of §2261 as of January 31, 1997, and that it has

not met them previously”); Satcher v. Netherland, 944 F. Supp.

1222, 1241–45 (E.D. Va. 1996) (at least before July 1, 1995,

Virginia did not satisfy § 2261 requirements); Ryan v. Hopkins,

No. 4:CV95-3391 (D. Neb. July 31, 1996) (Piester, J.) (unpublished) (“Nebraska’s framework for appointing counsel in

postconviction capital cases is not currently in compliance

with subsections (b) and (c) of section 2261”).

PRISON LITIGATION

Proceedings In Forma Pauperis

Sixth Circuit rules that PLRA filing fee provisions are constitutional. Addressing several constitutional issues related

to the filing fee provisions of the Prison Litigation Reform

Act (PLRA), the Sixth Circuit held that the fee requirements

placed on prisoners “do not deprive them of adequate, effective, and meaningful access to the courts.” Under 28 U.S.C.

§ 1915(b)(1), a prisoner without funds would not be denied

access based on poverty; and § 1915(b)(4) explicitly states

that a prisoner cannot be prohibited from bringing a civil

action or appealing a civil or criminal judgment “for the reason

that the prisoner has no assets and no means by which to pay

the initial partial filing fee.” “Moreover, once the initial filing

fee is paid, the payments are slight,” and if the prisoner’s suit

is successful, judgment may be rendered for costs

[§ 1915(f)(1)]. Also, the burdens imposed are similar to ones

imposed and upheld in previous cases involving indigent

prisoners. Thus, the Act does not violate a prisoner’s First

Amendment rights.

Neither do the fee requirements deprive prisoners of their

equal protection rights. Prisoners and indigents are not a

suspect class, the classification does not affect a fundamental

right, and the provisions meet the rational basis test. “Deterring frivolous prisoner filings in the federal courts falls within

the realm of Congress’s legitimate interests, and the specific

provisions . . . are rationally related to the achievement of that

interest.”

The Act satisfies the constitutional requirements of procedural and due process. Prisoners’ ability to petition for redress
Habeas & Prison Litigation Case Law Update, number 6, April 1997 • a publication of the Federal Judicial Center 5

of grievances has not been deprived or limited. In addition,

although they have an interest in the funds in their trust

accounts, “inmates are not granted full control over their

money while in prison, and debit procedures similar to those

in question have been applied in the prisoner context. . . .

Furthermore, the Act charges a prisoner no more than anyone

else who is adjudged able to pay—and under much more

generous payment terms.” The test for substantive due process violations has not been met. Finally, the PLRA provisions

do not violate the Double Jeopardy Clause because “the Act

cannot be said to have a punitive intent or purpose, and the

effect on prisoners is not so onerous that it renders the Act

punitive.”

Hampton v. Hobbs, 106 F.3d 1281, 1284–88 (6th Cir. 1997).

See also Roller v. Gunn, No. 96-6992 (4th Cir. Feb. 19, 1997)

(Wilkinson, C.J.) (The Act represents a legitimate exercise of

Congress’s power to reduce frivolous lawsuits in the federal

courts. The Act is rational, does not violate fundamental

rights, and does not single out a suspect class for disparate

treatment.)

Seventh Circuit holds that prisoner’s release does not

eliminate obligation to pay filing fees incurred during incarceration. While in prison the appellant filed several lawsuits

under 42 U.S.C. §1983 which were dismissed for a variety of

reasons. He appealed five of them but was released from prison

before paying the full fees for all of the appeals. Four of the

original suits and two of the appeals were filed before April 26,

1996, the effective date of the PLRA. The Seventh Circuit

considered how several provisions of the PLRA apply in these

circumstances. The court noted the distinctions between

nonprisoners and prisoners specified in §§ 1915(a)(1) and

1915(b)(1). Under (a)(1) nonprisoners may proceed in forma

pauperis without prepayment of filing fees; under (b)(1)

prisoners seeking to proceed in forma pauperis are required

to pay the filing fees. Also, under §1915(a)(2), prisoners must

submit with their complaints not only the statement of assets

required by (a)(1) but also certified copies of their trust fund

account statements. Despite these restrictions on prisonerplaintiffs, the court pointed to another “potentially relevant”

provision, §1915(b)(4), which states that “[i]n no event shall

a prisoner be prohibited from bringing a civil action or

appealing a civil or criminal judgment” because the prisoner

“has no assets and no means by which to pay the initial partial

filing fee.”

The court of appeals then analyzed the status of appellant’s

various appeals with regard to the PLRA’s applicability. Citing

its decision in Thurman v. Gramley, 97 F.3d 185, 188-89 (7th

Cir. 1996), which held that “an appeal lodged before April 26

. . . does not become ‘filed’ until the motion [to certify the

appeal as nonfrivolous] has been acted upon,” the court

concluded that the Act did not apply to two appeals at all. The

appellant did not have to prepay the fees “[b]ecause [he] is

now out of prison, and neither appeal was filed for statutory

purposes before his release.” Nevertheless, the court affirmed

the district court judgment that the appeals were frivolous and

stressed that “[b]oth of these suits and appeals count as

‘strikes’ for the purpose of 28 U.S.C. §1915(g) should Robbins

return to prison and initiate new litigation.”

The PLRA applied fully to the other three appeals commenced on or after April 26 while the appellant was still a

prisoner, obliging him to pay the filing fees. “His current status

does not alter the fact that he was a prisoner when he filed

the appeals.” Appellant did not comply with §1915(b)(1) by

providing a copy of his prison trust account and making partial payment at the time he filed those appeals. In response to

a court order requiring him to comply, the appellant simply

stated “that he had been released and is penniless.” The

Seventh Circuit stressed that “[h]is current poverty would

not authorize continuation of the appeals, if he had the

resources to comply with the statute at the time the Act called

for payment. Nor does his current poverty excuse his noncompliance with our orders.” Appellant had to provide a copy

of his prison trust account statement showing the balances

and income through the day of his release. The court gave him

21 days to supply the information. “If these appeals are to

continue, Robbins must pay the amounts that according to

the trust account statements he could have paid at the time

he filed the appeal (and before his release). . . . Under the Act,

release does not eliminate an obligation that could and

should have been met from the trust account while imprisonment continued.”

The Seventh Circuit contrasted its decision with that of

McGann v. Commissioner, 96 F.3d 28, 30 (2d Cir. 1996), which

concluded that a prisoner’s obligation to pay fees after his

release “is to be determined, like any non-prisoner, solely by

whether he qualifies for i.f.p. status.” The decisions are congruent, the Seventh Circuit said, because the Second Circuit

based its conclusion in McGann on its belief that “there is a

conflict between §1915(b)(1) and § 1915(b)(2): the former

calls for full payment, yet the latter specifies a mechanism that

won’t work for ex-prisoners.” The Seventh Circuit did not see

this inconsistency. In its view, “[w]hat excuses further prepayment after release, if the former prisoner is destitute, is not a

conflict between § 1915(b)(1) and § 1915(b)(2) . . . but

§ 1915(b)(4) . . . [T]he majority in McGann did not consider

the approach we adopt here, requiring prepayment of the sum

that should have been remitted before release. We have no

reason to suppose that the second circuit would reject this

option, so we do not think that this opinion creates a conflict

in outcomes.”

Robbins v. Switzer, 104 F.3d 895 897–99 (7th Cir. 1997).

Sixth Circuit concludes that § 1915 permits nonprisoners to continue to litigate cases without payment of

filing fees, but they must file an affidavit of assets. Section

1915(a)(1) as amended by the PLRA, provides: “Subject to

subsection (b), any court of the United States may authorize

the commencement, prosecution or defense of any suit, action

or proceeding, civil or criminal, or appeal therein, without

prepayment of fees or security therefor, by a person who

submits an affidavit that includes a statement of all assets such
6 Habeas & Prison Litigation Case Law Update, number 6, April 1997 • a publication of the Federal Judicial Center

prisoner possesses that the person is unable to pay such fees

or give security therefor.” According to the court, the “quandary posed by the statute is what Congress intended by the

phrase ‘prisoner possesses.’” It decided “that Congress actually intended the phrase to be ‘person possesses,’” citing

several factors, including the purpose of the Act itself to

curtail inmate litigation, not pauper litigation. The legislative

history did not reveal “a modicum of evidence that Congress

intended to prevent indigent non-prisoners from proceeding

in forma pauperis in the federal courts.” A “plethora of

legislative history” established that the PLRA was applicable

only to prisoners. The rules of statutory interpretation also

supported its conclusion, the court said. To require only

prisoners to file an affidavit of assets, as the United States

argued, “would create a needless conflict with Fed. R. App. P.

24 . . . [and] non-prisoners who were not truly paupers could

avoid payment of the required costs and fees. Requiring all

individuals to file an affidavit of assets assures the integrity of

the indigency request.”

The court held that all individuals seeking pauper status

must file Form 4 in the Appendix of Forms of the Federal

Rules of Appellate Procedure, “or an affidavit which contains the same information contained in this form. . . . Only

prisoners . . . have the additional requirement of filing a

prison trust account.” Finally, the court of appeals held that

to the extent that Fed. R. App. P. 24(a) conflicts with

§ 1915(a)(3), which prohibits an appeal in forma pauperis

if the trial court certifies that “the appeal is not taken in

good faith,” the statute repeals the rule. Since the district court

had made such a certification in this case, the Sixth Circuit

ruled that the appellant did not have pauper status and must

pay the required filing fee.

Floyd v. United States Postal Serv., 105 F.3d 274, 275–79 (6th

Cir. 1997). See also In re Prison Litigation Reform Act, 105 F.3d

1131, 1131–39 (6th Cir. 1997) (chief judge of the circuit

issued detailed administrative order to assure uniformity

throughout circuit in implementing PLRA’s IFP provisions

“until such time as panels of this court have the opportunity

to address the numerous issues raised by the Act”; order

applies to all complaints and notices of appeal filed on or

after March 1, 1997).

Fifth Circuit holds that filing fee provisions apply to

pending appeals, and fees assessed after appellant decides

to continue appeal do not have retroactive effect. One week

before the effective date of the PLRA, the appellant filed an

appeal of the dismissal of her claims in district court. The Fifth

Circuit considered whether the appellant had to submit a new

IFP certification to the court of appeals and pay the filing fee

for the appeal, as required by the Act, 28 U.S.C. §1915(a)(2).

In reviewing the governing principles regarding retroactivity

set out in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the

court noted that “[t]he requirement that the plaintiff certify

her indigent status using new forms certainly affects her rights

no more than the three strikes provision of section 1915(g)”

that the court upheld in Adepegba v. Hammons, 103 F.3d 383

(5th Cir. 1996). Thus, the filing requirements do not impose

new liabilities under Landgraf. The plaintiff was given 30 days

to refile for IFP certification in accordance with the PLRA.

The Fifth Circuit further found that, unlike the certification requirements of § 1915(a) which apply “any time a

prisoner is ‘seeking to bring or appeal a judgment in a civil

action,’” the requirement of §1915(b)(1) that the prisoner pay

the full filing fee attaches only “to specific ‘triggering events’”

of bringing an action and filing an appeal, both of which the

plaintiff had completed before the PLRA became effective.

Following the rationale of Thurman v. Gramley, 97 F.3d 185

(7th Cir. 1996), the Fifth Circuit said it would deem the

plaintiff’s appeal “to be ‘filed’ under the PLRA if and when she

refiles under the new certification requirements of the Act.

Should she decide to refile, she ‘shall be required to pay the full

amount of a filing fee.’” Assessing fees if the plaintiff decides

to refile for certification would be consistent with Landgraf

“[b]ecause imposing fees after her decision to pursue her

appeal does not attach new liabilities to completed conduct.”

The court noted that its decision disagrees with White v.

Gregory, 87 F.3d 429 (10th Cir. 1996), which held that the

PLRA does not apply to cases pending on its enactment.

Strickland v. Rankin County Correctional Facility, 105 F.3d

972, 974–76 (5th Cir. 1997). See also Ayo v. Bathey, 106 F.3d 98,

100–01 (5th Cir. 1997) (per curiam) (PLRA’s IFP certification

requirements apply “to all cases pending on its effective date,

whether fully briefed or not, and . . . application of the PLRA

revokes a prisoner’s previously obtained IFP status, whether

granted in a motion to proceed IFP on appeal prior to the

effective date of the PLRA or granted in the district court and

carried over to the appeal before the effective date of the

PLRA”). But see Rodgers v. Deboe, 950 F. Supp. 1024, 1026–

(S.D. Cal. 1997) (declining to apply §1915(b) to plaintiff who

was granted IFP status more than two months before Act,

finding that “application of section 1915(b)’s newly created

obligation to pay the ‘full amount of a filing fee’ to a plaintiff

whose filing fees have already been ‘waived’ under pre-PLRA

standards would have an impermissible retroactive effect”

under Landgraf; court declined to follow Marks v. Solcum, 98

F.3d 494, 496 (9th Cir. 1996), which held that the sua sponte

dismissal provisions of § 1915(e)(2) may be applied to civil

actions filed prior to enactment of the PLRA).

Ninth Circuit rules that IFP provisions do not apply to

habeas proceedings. Appellant filed a petition for a writ of

habeas corpus in the district court on Jan. 8, 1995. On April

29, 1996, the court denied the petition as to three of four

claims. On May 13, 1996, appellant filed a notice of appeal.

The Ninth Circuit agreed with the decisions in Santana v.

United States, 98 F.3d 752 (3d Cir. 1996), Martin v. United

States, 96 F.3d 853 (7th Cir. 1996), and Reyes v. Keane, 90 F.3d

676 (2d Cir. 1996) that the PLRA’s IFP provisions do not apply

to habeas actions. “Congress was clearly not concerned with

habeas corpus proceedings when they enacted the PLRA, as is
Habeas & Prison Litigation Case Law Update, number 6, April 1997 • a publication of the Federal Judicial Center 7

further evidenced by the absence of any reference to the PLRA

or the forma pauperis revisions in the AEDPA enacted only two

days earlier.”

Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997).

District court rules that IFP status does not automatically

continue on appeal and plaintiff must comply with PLRA

filing fee requirements. Upon receiving the plaintiff’s notice

of appeal, the Eighth Circuit advised him by letter dated Oct.

1, 1996, that his appeal could not be docketed and processed

because he had not paid the filing fees or complied with 28

U.S.C. §1915(b). The plaintiff filed an objection to the district

court’s request that he submit a new IFP form in order to

appeal. He argued that he did not have to comply with the

recent statutory amendments because he was granted IFP

status in the district court prior to April 26, 1996. The court

noted that, unlike previous law, “[t]he amendments to the

statute do not provide for such an automatic continuation of

IFP status when a prisoner has filed an appeal in forma

pauperis.” Since the plaintiff filed his notice of appeal after

April 26, 1996, he must comply with the amended statute,

citing Thurman v. Gramley, 97 F.3d 185 (7th Cir. 1996), and

Covino v. Reopel, 89 F.3d 105 (2d Cir. 1996).

Hale v. Wood, 943 F. Supp. 1135, 1136 (D. Minn. 1996).

Remedies for Prison Conditions

District court terminates specific performance of obligations in consent decree but denies motion to vacate decree;

in the alternative, court rules that §3626 unconstitutionally

reopens final judgments. Plaintiff class—pretrial detainees

being held in the Suffolk County Jail—brought suit against the

defendants in 1971, challenging as unconstitutional the conditions of their confinement. The parties entered into a consent decree in May 1979. The decree was subsequently modified in 1985, 1990, and 1994.

After enactment of the PLRA, defendants brought motions

to terminate prospective relief under 18 U.S.C. § 3626(b)(2)

and to vacate the consent decree. Defendants (the sheriff of

Suffolk County and the commissioner of corrections) argued

that under § 3626(b)(2)(iii), the court should immediately

terminate all prospective relief entered in the case because the

court’s previous decisions did not make the findings required

under § 3626(a) and there was no showing that would support

a finding that prospective relief is still warranted under the

terms of the PLRA. The sheriff asked for termination of provisions in the consent decree granting prospective relief for

alleged conditions of overcrowding. The commissioner contended that the entire consent decree constituted prospective

relief under the PLRA and should be vacated. The United

States, as intervenor, proposed “a less stringent and restrictive

interpretation of what satisfies the requirement that the district court find a ‘current and ongoing violation of the Federal

right,’ as . . . used in § 3626(b)(2) . . . [T]his finding would be

permissible where the ‘proximate effects’ of a past constitutional violation have not yet been remedied, as well as where

an imminent threat of recurrence of a violation of federal

rights exists.”

Plaintiffs “informed the court . . . that, in their view, because

terminating all prospective relief would be interpreted by

defendants as ending the defendants’ obligation to maintain

single-cell occupancy, a court order terminating all prospective relief will as a practical matter cause plaintiffs to lose

‘rights secured to them by the decree.’ Therefore . . . the court

must either make the findings required by the statute and

order that narrowly tailored prospective relief remains in

effect or confront the constitutional issues posed by the PLRA.”

After reviewing precedent in tort and contract cases and

examining the definitions contained in § 3626(g) as well as

standard legal definitions, the court concluded that based on

precedent and “ordinary usage” there is “a distinction between, on the one hand, ‘relief’ and ‘prospective relief’ and, on

the other hand, the judgment or consent decree itself.” In its

view, determinations made by the court in the initial consent

decree and subsequent modifications “represent judicial determinations regarding the rights and duties of the parties that

are distinct from the relief ordered as remedies.”

In the event its nonconstitutional interpretation of the

statute is rejected by an appellate court, the district court

offered an alternative constitutional ground of decision based

on Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1447 (1995). “The

effect of the PLRA, unless construed to preserve [the ongoing

obligations undertaken by the sheriff in an agreement modifying the consent decree and approved by the court in its Final

Order of June 14, 1994] . . . would be to set aside by statutory

directive a final judgment of a court. This would be the most

serious intrusion on the separation of powers of any of the

various alleged intrusions plaintiffs have challenged.” This

holding is a narrow and limited one, the court stressed,

declaring that the challenged section of the statute “offends

the principle of separation of powers to the extent that it is

interpreted as having retroactive effect to reopen consent

decrees entered before its enactment.”

The district court granted the motion to terminate prospect

relief “to the extent that the obligations placed on defendants

under the Consent Decree . . . will no longer be enforced by an

order of specific performance,” but denied the motion “to the

extent that it requests that the court terminate the obligations

stated in the Consent Decree . . . as the consensual undertakings of the defendants with court approval.” It denied the

motion to vacate the consent decree in its entirety.

Inmates of the Suffolk County Jail v. Sheriff of Suffolk County,

No. CIV. A. 71-162-REK (D. Mass. Jan. 2, 1997) (Keeton, J.).

District court makes findings required by § 3626(b)(3)

and holds defendants in civil contempt of both settlement

agreement and court orders enforcing its terms. The parties

entered into a settlement agreement on Oct. 12, 1994, which

obligated the defendants to remedy conditions at the Criminal

Justice Complex (CJC) in St. Thomas, U.S. Virgin Islands, and
Habeas & Prison Litigation Case Law Update, no. 6, April 1997

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

established specific requirements and deadlines to effect this

remedy. On Nov. 7 and 8, 1996, a hearing was held on a motion

brought by plaintiffs to show cause why the defendants should

not be held in civil contempt for continued noncompliance

with the agreement and the district court’s orders enforcing it.

Defendants moved to terminate the consent decree under the

PLRA. Based on the evidence and testimony presented at the

hearing, the court found that “conditions at the CJC presently

do not meet minimal, constitutional standards.” It examined

the agreement and made the findings required by 18 U.S.C.

§ 3626(b)(3): “[I]ts terms are narrowly tailored to address the

constitutional violations suffered by the plaintiffs. Further . . .

the Agreement extends no further than necessary to correct

the clear violations of plaintiffs’ federal rights under the

Constitution.” It held the defendants in civil contempt of both

the agreement and the court’s enforcement orders. The district

court noted that it did not have to decide to whether the PLRA’s

provision authorizing termination of a consent decree is

constitutional because the defendants no longer sought to

terminate the agreement but instead moved to modify it

pursuant to Fed. R. Civ. P. 60(b).

Carty v. Farrelly, C.A. No. 94-78 (D.V.I. Jan. 29, 1997)

(Brotman, J.).

Ninth Circuit denies mandamus challenges to district

court rulings on nonretroactivity of special master provision. In three cases, petitioners sought writs of mandamus

commanding district courts to vacate orders holding that 18

U.S.C. § 3626(f)(4), which limits compensation for special

masters and requires payment from Judiciary funds, does not

apply retroactively to special masters appointed before the

PLRA’s effective date. Observing that “there is no published

precedent from any court other than respondent courts on the

retroactive application of the special master provision,” the

Ninth Circuit denied the petitions after reviewing the statute

and its legislative history under the retroactivity analysis of

Landgraf v. USI Film Prods., 511 U.S. 244 (1994). “[W]e are not

convinced that the error petitioners contend the respondent

courts have committed cannot be corrected on appeal if,

indeed, error has been committed.”

Wilson v. United States Dist. Court, 103 F.3d 828, 830 (9th

Cir. 1996).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 7, June 1997

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Second or Successive Petitions

Ninth Circuit holds that prima facie showing on one claim

is sufficient to grant entire application for second petition

under §2244(b). “The relevant provision of the Antiterrorism

and Effective Death Penalty Act of 1996, 28 U.S.C.

§2244(b)(3)(C), states that this court ‘may authorize the

filing of a second or successive application . . . if it determines

that the application makes a prima facie showing that the

application satisfies the requirements of this [section].’ Although the provision arguably is subject to the interpretation

that this court is to authorize only those claims meeting the

requirements of §2244, we conclude that the proper procedure under the statute is for this court to authorize the filing

of the entire successive application.

“Section 2244(b)(3) refers only to our granting or denying

‘an application.’ This provision is to be contrasted with section

2244(b)(4), which provides that ‘[a] district court shall dismiss any claim presented in a second or successive application

that the court of appeals has authorized to be filed unless the

applicant shows that the claim satisfies the requirements of

this section.’ (Emphasis supplied.) Thus, the district court is

directed to address, claim by claim, the entire application

authorized by this court.

“Our authority to authorize ‘an application’ under section

2244(b) is also to be contrasted with our authority to issue a

certificate of appealability under section 2253. In the latter

case, ‘[t]he certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the showing

required by paragraph (2).’ 28 U.S.C. §2253(c)(3). There is no

comparable restriction governing our authorization of successive applications for habeas corpus under section 2244(b).

“We conclude, therefore, that our authorization permits

Nevius to file his entire application in the district court.

Indeed, it is likely in many cases that this court’s authorization

of a successive petition, which must be issued within 30 days

after filing of the applicant’s motion, see §2244(b)(3)(D), will

be issued without explanation.”

Nevius v. McDaniel, 104 F.3d 1120, 1121–22 (9th Cir.

1996). See also Bennett v. United States, No. 97-9003 (7th Cir.

Mar. 3, 1997) (Posner, C.J.) (holding that §2244’s requirement

for a “prima facie showing” applies to §2255 applications to

file second or successive petitions and that, “[b]y ‘prima facie

showing’ we understand (without guidance in the statutory

language or history or case law) simply a sufficient showing of

possible merit to warrant a fuller exploration by the district

court”).

Eighth Circuit holds that §2244(b) applies to motion

to recall mandate and that new rule of state law does not

allow second petition. In 1995 the Eighth Circuit upheld

petitioners’ state death sentences and the district court’s denial

of their habeas petitions. “The petitioners have now moved to

recall our mandate in order to permit them to contend that a

decision of the Supreme Court of Arkansas, handed down

after our decision, so changes the state-law basis of their

convictions as to render their death sentences invalid under

the Eighth Amendment.”

“When the decision in question is, as here, a denial of a

petition for habeas corpus, a motion to recall the mandate to

allow consideration of a new ground or contention is the

functional equivalent of a second or successive petition for

habeas corpus. Such a motion can be granted, and the new

ground or contention decided on the merits, only if the case

meets the exacting standards for second or successive petitions.” Because the motion was filed Dec. 24, 1996, the court

applied §2244(b), as amended by the AEDPA. The relevant

portion of the statute in this case is §2244(b)(2)(A), which

requires dismissal of a second or successive habeas petition

unless “the applicant shows that the claim relies on a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.”

The court held that petitioners’ claim did not meet the

requirements of §2244(b)(2)(A). “It is apparent that this

claim does not ‘rel[y] on a new rule of constitutional law’ ....

The ‘new rule’ asserted . . . is a rule of state law, having to do

with the elements of capital felony murder. Moreover, even

if [the new state court decision] had established ‘a new rule

of constitutional law,’ not merely of state statutory law, petitioners would still not prevail, because this asserted new rule

has not been ‘made retroactive to cases on collateral review by

the Supreme Court. . . .’ ‘Supreme Court’ in this sentence

means the Supreme Court of the United States, and that Court

has said nothing about the opinion of the Supreme Court of

Arkansas.” The court added that, “[i]f we were free to reach
2 Habeas & Prison Litigation Case Law Update, number 7, June 1997 • a publication of the Federal Judicial Center

the merits of petitioners’ argument . . . , we would still deny

the motion.”

Ruiz v. Norris, 104 F.3d 163, 164–65 (8th Cir. 1997). See also

Denton v. Norris, 104 F.3d 166, 167 (8th Cir. 1997) (rejecting

petitioners’ claim that amended §2244(b)(1)—which precludes second or successive petitions for any claim presented

in prior application—is an unconstitutional suspension of

the writ of habeas corpus).

Standard of Review

Fourth Circuit holds that it will not apply AEDPA standard of

review to pre-Act denial of habeas relief. A state prisoner,

convicted of capital and other crimes, had his habeas petitions

denied by the state courts, and the Supreme Court denied

certiorari in 1994. He filed a federal habeas petition, which the

district court denied in 1995. He then filed a notice of appeal

and request for a certificate of probable cause. Shortly after

he filed his opening brief in the Fourth Circuit, the AEDPA

was enacted.

The appellate court remanded for an evidentiary hearing

on some of petitioner’s claims, after first determining that the

new standards of appellate review in Chapter 153 of the AEDPA

should not be applied to this §2254 petition. “[T]he AEDPA

was not enacted until April 24, 1996, nearly six months after

the district court disposed of Mackall’s case and two days after

he filed his opening brief in the Fourth Circuit. And, unlike

Chapter 154, the amendments to Chapter 153 are not subject

to a retroactivity clause. . . . Absent some indication that

Congress intended the revisions to apply retroactively, see

Landgraf v. USI Film Prods., 511 U.S. 244, 255–57, 114 S. Ct.

1483, 1492 . . . (1994), we will not review the district court’s

disposition under standards that did not exist until after this

appeal had divested the court of jurisdiction.”

Mackall v. Murray, 109 F.3d 957, 960–61 (4th Cir. 1997).

See also Brewster v. Kirby, 954 F. Supp. 1155, 1158–59 (N.D.W.

Va. 1997) (declining to retroactively apply AEDPA to §2254

petition where filings were completed one year before statute

enacted); Hamblin v. Anderson, 947 F. Supp. 1179, 1183 (N.D.

Ohio 1996) (do not apply AEDPA amendments to §2254

petitions pending on date of enactment); Satcher v. Netherland,

944 F. Supp. 1222, 1247–49 (E.D. Va. 1996) (same). Cf. Jeffries

v. Wood, No. 95-99003 (9th Cir. May 12, 1997) (en banc)

(Thomas, J.) (opinion of court giving rationale for earlier

order, at 103 F.3d 827, holding that AEDPA would not be

applied retroactively; five judges dissented from opinion).

Fifth Circuit uses AEDPA standard of review to reverse

pre-AEDPA habeas grant. Defendant’s second federal habeas

petition, filed in October 1993, was granted as to petitioner’s

sentence after the district court held that he had received

ineffective assistance of counsel at the punishment phase of

his murder trial. While the state’s appeal was pending, the

AEDPA was enacted. Following the Landgraf retroactivity

analysis and the recent holding in Drinkard v. Johnson, 97 F.3d

751 (5th Cir. 1996) (see Habeas & Prison Litigation Case Law

Update #5), the appellate court held that “the amended standards of review found within [§2254(d)] apply retroactively

to [t]his petition.”

The court then concluded that “the new standards of

review set forth in the AEDPA require reversal of the district

court’s order granting habeas corpus relief. . . . The state trial

court conducted an evidentiary hearing, heard testimony and

received evidence from both parties, and issued detailed

findings of fact and conclusions of law in support of its

judgment” that defendant did not receive ineffective assistance of counsel. The court held that “we cannot say that

reasonable jurists considering the question would be of one

view that the state court determination . . . was incorrect. We

certainly cannot say that the state court decision was so clearly

incorrect as not to be debatable among reasonable jurists.

Accordingly, we conclude, as we must, that 28 U.S.C. §2254,

as amended . . . , bars habeas corpus relief.”

Moore v. Johnson, 101 F.3d 1069, 1072–76 (5th Cir. 1996).

See also Ford v. Ahitow, 104 F.3d 926, 936 (7th Cir. 1997) (using

AEDPA standard of review to reverse pre-AEDPA issuance of

habeas writ, but also noting that it would have reversed even

under pre-AEDPA standard); Scott v. Anderson, 958 F. Supp.

330, 334 (N.D. Ohio 1997) (holding that amended §2254

would be applied to petition filed Feb. 2, 1996).

Certificate of Appealability

Fifth Circuit stays response brief by state until certificate of

appealability is issued. Petitioner applied for a certificate of

probable cause to authorize an appeal of the district court’s

denial of his habeas petition. Because the application was still

pending when the AEDPA became effective, the appellate court

treated it like an application for a certificate of appealability

(COA). Petitioner filed a brief raising fourteen points of error,

providing “the basis to determine whether a COA should issue

and, if so, on what issues.” The state then moved to stay

briefing until the court ruled on the application and the court

granted the motion.

“Under [18 U.S.C. §]2253(c)(3), as amended, an appeal

may not proceed until a COA issues. The COA must specify

which points of appeal satisfy the new federal habeas relief

standard set forth in section 2253(c)(2). We have not yet ruled

on Lucas’ application. Thus, the State should not be required

to respond until such certification issues. The effect of requiring the State to respond at this point would be to nullify

this newly amended section by transforming an application

for a COA into an appeal on the merits. This result is inconsistent with the rule that statutes should be interpreted so as

to give meaning to all terms. . . . Therefore, we conclude that

we must issue a COA specifying the issues meriting review

before requiring the State to respond to the petitioner’s brief

on the merits.”

Lucas v. Johnson, 101 F.3d 1045, 1046 (5th Cir. 1996) (per

curiam). Accord United States v. Simmonds, 111 F.3d 737, 741

(10th Cir. 1997) (“we hold the circuit court should rule on

whether it will issue a certificate of appealability before
Habeas & Prison Litigation Case Law Update, number 7, June 1997 • a publication of the Federal Judicial Center 3

requiring the government’s merit brief”; however, “the circuit

court may still request the government’s merit brief before

ruling on a certificate of appealability, especially in those cases

the court finds particularly difficult or complex such that a

merit brief from the government would significantly aid its

decision”).

Second Circuit holds that COA is required for appeal of

§2255 motion where motion was originally filed before the

AEDPA; also holds that district courts have authority to issue

COA. Two federal prisoners filed §2255 motions in 1992. The

district court denied their motions on Sept. 27, 1996, and also

denied their applications for certificates of appealability.

Movants then filed notices of appeal, and further moved to

dispense with the COA requirement, arguing that amended

§2255 should not be applied to motions originally filed before

enactment of the AEDPA.

Applying the Landgraf retroactivity analysis, the appellate

court “agree[d] with the Eleventh Circuit that application of

whatever limiting effect the AEDPA may have on the scope of

appeals of denials of section 2255 motions results in the sort

of procedural change that does not encounter retroactivity

objections. See Hunter v. United States, 101 F.3d 1565 (11th

Cir. 1996) (in banc). . . . Accordingly, the motion to dispense

with a COA must be denied.” See also United States v. Riddick,

104 F.3d 1239, 1241 (10th Cir. 1997) (COA required for appeal

from denial of §2255 motion filed May 3, 1996, even though

denial occurred on April 19, 1996); United States v. Orozco,

103 F.3d 389, 391–92 (5th Cir. 1996) (requirements for COA

apply to pending §2255 appeal where notice of appeal was

filed after AEDPA’s effective date; defendant’s notice of appeal

would be construed as request for COA); United States v. Coyle,

944 F. Supp. 418, 420 (E.D. Pa. 1996) (COA is required for

§2255 appeal filed after AEDPA’s enactment although original

§2255 motion was filed in 1995).

The court also agreed with the “careful analysis” in Hunter,

101 F.3d at 1573–83, that the seemingly conflicting language

of §2253(c)(1) (COA can be issued only by “circuit justice or

judge”) and Fed. R. App. P. 22(b) (expressly allowing district

judge to issue COA) should be harmonized by reading “judge”

in §2253(c)(1) to include both circuit and district judges. The

court additionally reasoned that district judges could issue

pre-AEDPA certificates of probable cause for §2254 appeals,

and “[i]f Congress wished to transfer the ‘gate-keeping’ function for appeals of section 2254 denials exclusively to the

courts of appeals, it could be expected to make absolutely clear

its intention as to such a significant restructuring of appellate

procedure.” Finding further that Congress intended to make

§2255 appeals “at least as restricted as” §2254 appeals, but

lacking evidence that Congress intended to make them “more

restrictive than” §2254 appeals, the court concluded “that

district judges have authority to issue COAs in section 2255

cases” as well as in §2254 cases.

The court added that a request for a COA in §2254 and

§2255 appeals must first be made to the district court.

“Amended Rule 22(b) specifies that the district judge who

rendered the judgment ‘shall’ either issue a COA or give reasons

for denying one, implying that the district judge is required to

be the initial COA decision-maker. If the district judge denies

a COA, a request may then be made to a court of appeals.” If an

appellant files a notice of appeal (which does not normally set

forth the issues to be appealed), rather than a request for a COA

(which should make “a substantial showing of the denial of a

constitutional right”), the court will grant or deny a COA if it

can determine from the filing whether appellant did or did not

make the required showing. “In cases where the matter is

unclear, we will treat the notice of appeal as a ‘request’ for a

COA, as contemplated by Rule 22, but will afford the appellant

an opportunity to make the ‘substantial showing of the denial

of a constitutional right,’ as contemplated by section 2253.”

Lozada v. United States, 107 F.3d 1011, 1015–17 (2d Cir.

1997).

Third Circuit holds that district court may issue COA.

After the district court denied a federal prisoner’s §2255 claim,

it issued a certificate of appealability. The government argued

that the district court had no authority to do so, but the

appellate court disagreed. “Certainly the term ‘circuit justice

or judge’ is ambiguous as ‘circuit’ might modify only the word

‘justice’ or might modify both ‘justice’ and ‘judge.’ Obviously,

if ‘circuit’ applies to ‘judge’ then only a court of appeals judge

or circuit justice can issue a certificate of appealability. . . . Yet

we know that, unless we are willing to hold that Congress

made an extraordinary mistake in drafting, a district judge

must be able to issue a certificate of appealability in” §2254

cases because Fed. R. App. P. 22(b) specifically allows it.

“Thus, at the very time that Congress amended section 2253

to remove the language providing that the ‘judge who rendered the order’ could issue a certificate of probable cause,

now a certificate of appealability, it provided in Rule 22(b) that

a district judge in general, and the judge who rendered the

judgment in particular, ordinarily, of course, a district judge,

could issue a certificate of appealability. Furthermore, the

AEDPA amendment to Rule 22(b) referred to section 2253(c)

even though prior to the amendment Rule 22(b) did not

mention section 2253. . . . In these circumstances, we must

conclude that Congress deliberately amended Rule 22(b); we

consequently hold that section 2253(c)(1) authorizes a district judge to issue a certificate of appealability in cases under

subparagraph A and thus necessarily under subparagraph B as

well. Our conclusion harmonizes Rule 22(b) and section

2253(c)(1), and thus we reject any suggestion that these

provisions are inconsistent.”

United States v. Eyer, No. 96-7310 (3d Cir. May 14, 1997)

(Greenberg, J.).

One-Year Period of Limitation

Second Circuit holds that §2244(d)(1) should not have been

used to bar §2254 claim. Petitioner was convicted in 1974

and the state’s highest court refused to hear his appeal in 1978.

He filed a federal habeas petition on July 5, 1996. The district
4 Habeas & Prison Litigation Case Law Update, number 7, June 1997 • a publication of the Federal Judicial Center

PRISON LITIGATION

court dismissed the petition as time-barred under new 28

U.S.C. §2244(d)(1), which imposes a one-year period of

limitation on habeas petitions by state prisoners. The one-year

period runs, for this case, from “the date on which the

judgment became final by the conclusion of direct review.”

The appellate court reversed and remanded.

Noting that Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir.

1996) (en banc), indicated that petitioners should have a full

year after the effective date of §2244(d)(1) to file, the court

stated that “where a state prisoner has had several years to

contemplate bringing a federal habeas corpus petition, we see

no need to accord a full year after the effective date of the

AEDPA. At the same time, we do not think that the alternative

of a ‘reasonable time’ should be applied with undue rigor. In

this case, the petition was filed 72 days after the effective date

of the Act, and may well have been handed to prison authorities for mailing a slightly shorter interval after that effective

date. . . . We conclude that the filing was timely.”

The state contended that the petition should be dismissed

under Rule 9(a) of the Rules Governing Section 2254 Cases in

the United States District Courts, which states that a petition

may be dismissed if the state has been prejudiced by a delay in

filing, and that prejudice is presumed if the delay is more than

five years. The court declined to consider that issue, reasoning

that because dismissal under Rule 9(a) “normally requires

consideration of factual circumstances, [it] is appropriately

left for the District Court, in the first instance. Alternatively, if

the petition fails on its merits, the District Court may prefer to

adjudicate the petition on that basis.”

Peterson v. Demskie, 107 F.3d 92, 93–94 (2d Cir. 1997). See

also Duarte v. Hershberger, 947 F. Supp. 146, 148–49 (D.N.J.

1996) (after first concluding that “the new one-year statute of

limitations applies only prospectively to pending non-capital

habeas cases,” holding that petitioner whose one-year period

would have expired before April 24, 1996, should “receive a

grace period equal to the new limitations period”; thus, even

though petitioner’s final state appeal was rejected in 1986, he

had until April 24, 1997, to file).

Tenth Circuit holds that one-year time limit should not be

applied retroactively. A federal prisoner’s conviction became

final in 1991. He filed a §2255 motion in 1996, after the

effective date of the AEDPA. The appellate court held that the

“1-year period of limitation” in §2255 could not be applied to

bar the claim. “[L]iteral application of the amended statute

would bar Mr. Simmonds’ §2255 motion as of October 7,

1992, more than three years prior to the amended statute’s

effective date. . . . However, a new time limitation cannot be so

unfairly applied to bar a suit before the claimant has had a

reasonable opportunity to bring it. . . . [A]dditionally, there is

no indication Congress intended to foreclose prisoners who

had no prior notice of the new limitations period from bringing their §2255 motions.”

“Therefore, we hold application of the new time period to

Mr. Simmonds’ §2255 motion without first affording him a

reasonable time to bring his claim impermissibly retroactive.

Furthermore, we hold the one-year limitations period reflected in the amended 28 U.S.C. §2255 is also a reasonable

time for prisoners to bring §2255 motions whose convictions

became final before the Antiterrorism and Effective Death

Penalty Act took effect. Accordingly, prisoners whose convictions became final on or before April 24, 1996 must file their

§2255 motions before April 24, 1997.”

United States v. Simmonds, 111 F.3d 737, 744–46 (10th Cir.

1997). But cf. Clarke v. United States, 955 F. Supp. 593, 597

(E.D. Va. 1997) (holding that one-year limitation period in

§2255 may be applied to deny motion filed Oct. 21, 1996, over

six years after conviction became final).

Proceedings In Forma Pauperis

Fifth Circuit rules that the PLRA’s filing fee provisions do not

apply to deportees. After construing the plaintiff’s collateral

attack on the conviction underlying his deportation order as

a 28 U.S.C. §2241 habeas petition, the district court dismissed

it for frivolousness and failure to exhaust administrative

remedies. The plaintiff appealed and sought to proceed in

forma pauperis (IFP). The Fifth Circuit had to determine

whether he was a “prisoner” as defined in 28 U.S.C. §1915(h):

“[T]he term ‘prisoner’ means any person incarcerated or

detained in any facility who is accused of, convicted of,

sentenced for, or adjudicated delinquent for, violations of

criminal law or the terms and conditions of parole, probation,

pretrial release, or diversionary program.”

The court found it “a fairly close question” because “[i]n

some sense, it is his violations of criminal law that have caused

his current detention.” However, he was currently being

detained for a violation of immigration law rather than criminal law, and the court saw no language in §1915(h) indicating

that Congress intended it to apply to INS detainees. In fact, the

absence of immigration regulations in the list of offenses

covered by the statute “very plausibly could be read to indicate

the contrary.” The court of appeals also found it persuasive

that Congress addressed immigration reform in two other

recent enactments: the Anti-Terrorism and Effective Death

Penalty Act of 1996 and the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996. It therefore held that

the plaintiff was not a “prisoner” under the PLRA and therefore

did not have to comply with the Act’s filing fee provisions.

Ojo v. Immigration & Naturalization Serv., 106 F.3d 680,

682–83 (5th Cir. 1997).
Habeas & Prison Litigation Case Law Update, number 7, June 1997 • a publication of the Federal Judicial Center 5

Eighth Circuit holds that the PLRA covers mandamus

petitions arising from civil rights lawsuits and finds

petitioner ineligible for installment payment of fees. The

petitioner sought a writ of mandamus against the district

judge conducting his 42 U.S.C. §1983 civil rights action and

asked to proceed IFP. Noting that the PLRA does not mention

mandamus proceedings in its IFP provisions, the Eighth Circuit held that “a mandamus petition arising from an ongoing

civil rights lawsuit falls within the scope of the PLRA.” It cited

similar decisions in Martin v. United States, 96 F.3d 853, 854

(7th Cir. 1996), and Green v. Nottingham, 90 F.3d 415, 417–18

(10th Cir. 1996). The court left open “the issue of whether the

PLRA applies to mandamus petitions when the underlying

litigation is a civil habeas corpus proceeding.” Because the

petitioner had three or more previous cases dismissed for

frivolousness or failure to state a claim, he was “ineligible for

the §1915(b) installment plan,” the court said. Before the

court would consider the merits of his petition, he must pay

the full filing fee within fifteen days.

In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997). Cf. Sikora v.

Hopkins, 108 F.3d 978, 978 (8th Cir. 1997) (per curiam) (writ

of mandamus denied because appellate court found no error

in district court’s application of PLRA’s fee provisions to petitioner even though he submitted his complaint and IFP motion prior to Act’s effective date).

Tenth Circuit holds that §2254 habeas corpus actions and

§2255 proceedings are not “civil actions” under the PLRA.

“Because neither habeas nor §2255 proceedings can be uniformly characterized and because the context of the issue

before us is narrow and well defined—the scope of the Prison

Litigation Reform Act fee provisions—we find it analytically

useful to consider habeas and §2255 proceedings together.”

The court agreed with five other circuits that “the legislative history and purpose of the newly amended 28 U.S.C.

§1915 show the filing fee requirements of that statute were not

intended to extend to habeas or §2255 proceedings.” It cited

the following reasons: the PLRA’s main purpose is to curtail

abusive prison-condition litigation; the “economic disincentive” of §1915 does not have the same impact relative to a $5

filing fee for a habeas action as it does to a $120 fee for a civil

suit; Congress could have reformed the fee provisions for

habeas and §2255 actions in the Antiterrorism and Effective

Death Penalty Act passed two days before the PLRA, but it did

not do so; and, §1915(g) limits a prisoner proceeding IFP to

three frivolous civil actions or appeals—“If ‘civil action’ includes habeas and §2255 proceedings in the context of 28

U.S.C. §1915, conceivably, a prisoner who had brought three

frivolous prisoner-condition lawsuits would be prohibited

from bringing a first habeas or §2255 action.” This result

“‘would be contrary to a long tradition of ready access of

prisoners to federal habeas corpus’” (quoting Martin v. United

States, 96 F.3d 853, 855–56 (7th Cir. 1996)).

The court distinguished Green v. Nottingham, 90 F.3d 415

(10th Cir. 1996), which held that a petition for writ of mandamus, filed in the course of a habeas proceeding, was a “civil

action” under §1915. “[I]n Green, we were specifically concerned with prisoners using writs of mandamus to subvert

§1915’s intent to curtail abusive litigation. . . . Here, we are

not faced with the same concern. . . . [W]e are not, contrary to

Congress’ intent, creating a back door through which prisoncondition litigation is admitted without first requiring a prisoner to satisfy 28 U.S.C. §1915’s fee provisions.” The court

also agreed with the decisions in Martin, supra, at 854, and

Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996), that the word

“appeal” in §1915(b)(1) means an appeal of a civil action.

United States v. Simmonds, 111 F.3d 737, 741–44 (10th Cir.

1997). See also the Tenth Circuit decision in Pigg v. F.B.I., 106

F.3d 1497, 1498 (10th Cir. 1997) (per curiam), holding that

the district court erred in counting the dismissed current civil

suit as one of three prior actions under §1915(g).

Eleventh Circuit decides that the PLRA does not cover

habeas corpus proceedings. In May 1996, the district court

denied petitioner’s request for a writ of habeas corpus under 28

U.S.C. §2254, and thereafter also denied his application for a

certificate of probable cause. The petitioner then sought a

certificate of appealability from the Eleventh Circuit. On

August 14, 1996, the clerk of the court of appeals advised the

petitioner that he would have to pay the full appellate docketing and filing fee “or move, in accordance with the terms of

the PLRA, for relief from the obligation to pay that entire fee in

advance.” The petitioner responded by filing a Motion to

Determine Applicability of Docket and Filing Fees, contending that the PLRA does not cover habeas corpus cases and

therefore the court “should find the ‘docket and filing fees

inapplicable to him.’”

The court saw “some force to the argument that the PLRA

applies to habeas corpus cases,” because of the “multitude of

case law” that refers to them as civil in nature. But

this language is “illusive, as habeas corpus actions are not

purely (and thus not plainly) ‘civil actions.’” The court also

noted that under §1915(g), prisoners who had filed three

groundless civil lawsuits would be denied access to the writ if

the PLRA were applicable. It did not find it significant that

Congress expressly excluded habeas corpus proceedings in

defining the term “civil action with respect to prison conditions” in 18 U.S.C. §3626(g)(2)—Congress felt compelled to

make such an exclusion from the scope of that section “in

order to distinguish between prison release orders and habeas

proceedings.” Moreover, the Antiterrorism and Effective

Death Penalty Act was passed two days earlier than the PLRA

and Congress could have dealt with the IFP status of habeas

petitioners in that act had it wanted to. It is also not likely that

Congress meant for the PLRA’s elaborate payment provisions,

applicable to the $150 filing fee for a civil action, to cover the

$5 fee in §2254 actions. For these reasons, the court held that

the filing fee requirements of 28 U.S.C. §§1915(a)(2) and

1915(b) do not apply in §§2254 or 2255 proceedings.

Anderson v. Singletary, 111 F.3d 801, 802–06 (11th Cir.

1997). Accord Smith v. Angelone, 111 F.3d 1126, 1129–30 (4th

Cir. 1997).
6 Habeas & Prison Litigation Case Law Update, number 7, June 1997 • a publication of the Federal Judicial Center

District court rules that filing fee requirements do not

apply to lawsuit filed before the PLRA. Plaintiff filed his action

on July 21, 1995, and the district court granted his request for

IFP status. Defendant contended that the decision in Covino v.

Reopel, 89 F.3d 105 (2d Cir. 1996), required that the PLRA’s

filing fee provisions be applied retroactively. The district court

found this contention “manifestly wrong.” The holding in

Covino, which dealt with the retroactive application of the fee

provisions to filing notices of appeal, rested on Congress’s

desire to reduce frivolous prisoner litigation. In that decision,

the court of appeals said it might have made a different

decision if the district court had granted a motion to proceed

IFP on appeal. In this case, the district judge had done just that.

For this reason, and because requiring plaintiff to comply

retroactively with the fee provisions would not serve the

congressional purpose, the provisions would not apply.

Walls v. Angrum, No. 95 Civ. 5498 (BSJ) (S.D.N.Y. Mar. 3,

1997) (Jones, J.) (unpublished).

Remedies for Prison Conditions

District court again holds automatic stay provision unconstitutional, refuses to adopt “tortured interpretation” of

§3626(e)(2) advocated by Department of Justice. Defendants moved for the immediate termination of remedial plans

and court orders under 18 U.S.C. §3626(b)(1), (2), and (3).

They argued that the automatic stay provision of the PLRA,

§3626(e)(2), mandated automatic suspension of prospective

relief thirty days after the filing of their motion for termination

of relief. In accord with its previous decision in the companion

case of Hadix v. Johnson, 933 F.3d 1360 (E.D. Mich. 1996), the

district court held the automatic stay provision an unconstitutional violation of separation of powers and refused to give

it effect pending a full hearing on the issues; “Because the

automatic stay provision of the PLRA would have the effect of

overturning a judgment of court established under Article III

of the United States Constitution, that provision clearly violates constitutional separation of powers principles.”

In making its ruling, the court rejected “a tortured interpretation of §3626(e)(2)” that the Department of Justice advocated “in order to save its constitutionality.” The Department

argued that “the provision should be seen as permitting the

courts to exercise discretion to suspend, alter, or terminate

relief. In other words, ‘the relief remains in effect until the

court either grants a stay under subsection (e)(2)(A) or

terminates the relief.’” This interpretation, the court declared,

“clearly contradicts the plain language of the statute.”

Glover v. Johnson, 957 F. Supp. 110, 112–13 (E.D. Mich.

1997).

District court holds immediate termination provision

constitutional, but takes motion to terminate under advisement pending hearing on ongoing constitutional violations.

Pursuant to 18 U.S.C. §3626(b), defendants asked the court

to terminate a consent decree and judgment order entered in

1980 and 1982. Plaintiffs contended that §3626(b) unconstitutionally violates separation of powers and equal protection

principles and interferes with private contractual rights. The

district court found that through the PLRA, Congress had

changed the law governing the court’s remedial power, ensuring that “courts cannot award relief greater than what is

necessary to protect federal rights, even if the parties agree to

it.” This does not violate the separation-of-powers doctrine,

the court said. “[C]ase law supports the conclusion that

judgments imposing prospective relief, such as the orders in

the case at hand, are subject to modification in equity by the

courts in light of new circumstances. Section 3626 just provides an alternative mechanism to Rule 60(b) under which a

defendant can ask for revision of a judgment in prison reform

cases.” The court can continue narrowly tailored prospective

relief under §3626(b)(3).

In response to plaintiffs’ argument that the statute violates

equal protection because it does not serve any legitimate

purpose, the court held that §3626(b) is rationally related to

Congress’s “legitimate interest in preserving state sovereignty

from overzealous supervision by the federal courts in the area

of prison conditions litigation.” The court also rejected plaintiffs’ contention that the statute retroactively deprived them

of the benefit of the agreement they entered into. “What the

Act restricts is an agreement that imposes obligations on the

Defendant that go beyond what the Constitution requires,

and thereby beyond what the court can enforce.”

Although defendants “appear[ed] to be entitled to termination of the prospective obligations imposed by the consent

decree and judgment order,” the court found that the “lack of

safety and dangerous conditions caused by overcrowding,”

which plaintiffs complained of, “are within the scope of the

suit and if such conditions do not meet the constitutional

minimum, the Court is not in a position to terminate all relief

in this case.” Consequently, the court took the motion to

terminate under advisement pending a hearing on the issue of

ongoing constitutional violations pursuant to §3626(b)(3).

Jensen v. County of Lake, 958 F. Supp. 397, 400–07 (N.D.

Ind. 1997).

District court issues narrowly tailored permanent injunction under §3626(a)(1)(A) requiring enforcement of nonsmoking policy. On May 21, 1996, the district court entered

a preliminary injunction ordering the District of Columbia to

take actions to enforce its nonsmoking policy in facilities

operated by the D.C. Department of Corrections. After a trial,

the court found that “prior to this Court’s preliminary injunction there existed a ‘deliberate indifference’ to the concerns of

nonsmoking inmates despite the District’s smoking policy.

Without a continuation of the injunction, this ‘indifference’

will continue.” In conformance with the requirement of 18

U.S.C. §3626(a)(1)(A) that prospective relief “extend no

further than necessary to correct the violation of the Federal

right of a particular plaintiff or plaintiffs,” the court entered a

permanent injunction in favor of the designated plaintiffs.

“[T]he District will be required to take all steps necessary to

assure that the named Plaintiffs will be assigned sleeping
Habeas & Prison Litigation Case Law Update, number 7, June 1997 • a publication of the Federal Judicial Center 7

quarters with other non-smokers and to otherwise enforce its

non-smoking policy in those areas where the plaintiffs are

compelled to be. . . . The Court finds that these are the

narrowest and least intrusive means to vindicate Plaintiffs’

rights under the Eighth Amendment.”

Crowder v. District of Columbia, 959 F. Supp. 6, 9–11

(D.D.C. 1997).

Suits by Prisoners

Sixth Circuit declares that the PLRA’s administrative exhaustion requirement does not apply to pending appeals. The

Sixth Circuit considered whether 42 U.S.C. §1997e, as

amended by the PLRA, applied to four appeals that were

pending when the Act became law. The section requires that

prisoners first exhaust any available administrative remedies

before bringing challenges to the conditions of their confinement. None of the inmates alleged that he had fulfilled that

requirement. The court of appeals noted that under the prePLRA statute, prisoners “were not, as a rule, required to

exhaust administrative remedies before filing suit.” It found

that the amended statute’s language—“[n]o action shall be

brought. . . until such administrative remedies as are available

are exhausted”—applies expressly to “the bringing of new

actions, not the disposition of pending cases. Actions brought

before the statute was enacted are not affected by the new

administrative exhaustion requirement.”

The court rejected the argument made by the states opposing the four appeals that the entire Act must apply to pending

cases because Congress specified that one part of it (18 U.S.C.

§3626) does. If Congress had so intended, “it would have

employed the same language as it used in [§3626] to make that

intent clear.” The Sixth Circuit also explained that even if the

“prospective statutory language” of the statute were not dispositive, footnote 29 of Landgraf v. USI Film Prods., 511 U.S.

244, 275 (1994)—which states that the applicability of procedural rules “ordinarily depends on the posture of the particular case”—would require “that the new administrative exhaustion provision not apply to pending cases.” This result

would not be altered by the holdings in Cort v. Ash, 422 U.S.

66 (1975), or Weinberger v. Salfi, 422 U.S. 749 (1975). Finally,

the appellate court disposed of several policy arguments

advanced by the states, stressing that “where the language of

the statute and Landgraf both require that we apply this new

requirement only with respect to cases filed after the PLRA’s

passage, it would be improper to hold, on policy grounds, that

the provision applies to the cases before us.”

Wright v. Morris, 111 F.3d 414, 417–23 (6th Cir. 1997)

(Merritt, J., dissenting). Accord Mitchell v. Shomig, No. 95 C

7595 (N.D. Ill. Mar. 31, 1997) (Gettleman, J.) (unpublished).

District court rules that bar to suit with no showing of

physical injury does not apply retroactively. Plaintiff brought

an action under 42 U.S.C. §1983 for violation of her constitutional rights. She alleged that on August 9, 1995, she had been

prevented from attending religious services by a guard who

shouted obscenities at her and caused her mental and emotional distress. Defendants moved to dismiss her claims as

barred by 42 U.S.C. §1997e(e) because she made no showing

of physical injury. The district court noted the Second Circuit’s

holding in Covino v. Reopel, 89 F.3d 105, 107 (2d Cir. 1996),

that the PLRA’s fee application provision is procedural in

nature and applies retroactively. The core inquiry, it said, is

“‘whether the new provision attaches new legal consequences

to events completed before [the PLRA’s] enactment’” (quoting

Landgraf v. USI Film Productions, 511 U.S. 244, 270 (1994)).

The district court found that §1997e(e) does have such an

effect “because it denies plaintiff a cause of action where she

once had ‘a legally cognizable claim.’ Unlike the provision at

issue in Covino, the provision here is neither procedural nor

will plaintiff be allowed to continue with her cause of action

if it were applied retroactively; rather her cause of action

would be barred. Therefore, because this section ‘would

impair rights [plaintiff] possessed when [she] acted,’ Landgraf

(citation omitted), this section of the PLRA does not apply

retroactively, and consequently plaintiff’s claims will not be

dismissed on this ground.”

Harris v. Lord, 957 F. Supp. 471, 474 (S.D.N.Y. 1997). Accord

Thomas v. Hill, No. 3:96-CV-0306 AS (N.D. Ind. Apr. 4, 1997)

(Sharp, J.) (“Application of §1997e(e) to pending cases would

eliminate claims that were legally cognizable when brought,

and extinguish liability for conduct giving rise to liability at

the time it occurred. This, the court concludes, attaches new

legal consequences to events completed before the provision’s

enactment.”); Ramirez v. County of San Francisco, No. C 89-

4528 FMS (N.D. Cal. Jan. 23, 1997) (Smith, J.) (unpublished).

District court holds constitutional the PLRA’s requirement of a showing of physical injury; court also holds that

exposure to asbestos is not “physical injury” and that

§1997e applies to claims of former prisoners. Plaintiffs

(prisoners and former prisoners at the Indiana Youth Center)

filed a class action under 42 U.S.C. §1983 seeking damages for

“‘untold future physical injury and present mental pain and

suffering,’ as well as ‘mental anguish and the fear of developing

cancer, asbestosis or related asbestos exposure diseases and

conditions.’” Defendants moved for judgment on the pleadings based on the plaintiffs’ failure to allege a physical injury

within the meaning of 42 U.S.C. §1997e(e), as amended by the

PLRA. Plaintiffs contended that: (1) inhaling or ingesting

asbestos particles is a physical “impact” that meets the “physical injury” requirement of §1997e(e); (2) at least some class

members were not subject to §1997e(e) because they were no

longer prisoners when the complaint was filed; and, (3)

§1997e(e) is unconstitutional. As to the first, the district court

found that “mere inhalation or ingestion of asbestos particles

without proof of resulting disease or other adverse physical

effects” was not a physical injury within the meaning of

§1997e(e).

Next, finding the language of §1997e(e) ambiguous with

regard to whether it applies to civil actions brought by former

prisoners, the court concluded that “[a]pplying §1997e(e) to
Habeas & Prison Litigation Case Law Update, no. 7, June 1997

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claims arising during custody, regardless of the plaintiff’s

status at the time the action is filed, is the more sensible and

logical interpretation. It is more consistent with the purposes

of §1997e and the PLRA as a whole.” The plaintiffs’ interpretation of §1997e(e) would have the “perverse result” of

encouraging delay in filing by prisoners who could wait until

they are released from custody to file suit for mental or

emotional injury. This would also tend to multiply litigation

because “a plaintiff who successfully obtained injunctive

relief while in prison would be able to bring a separate action

after release (but only after release) to obtain damages for

mental or emotional injury.” Neither was it likely that Congress wanted to create two classes of prisoners based solely on

whether their release date occurs before or after the statute of

limitations runs on an action for mental or emotional injury.

This “would raise serious equal protection problems.” (The

court distinguished Robbins v. Switzer, 104 F.3d 895 (7th Cir.

1997), which held that the provisions of §1915(a)(2) & (b) do

not apply to prisoners released before their appeals are filed.

The provisions involving a prisoner’s “‘trust fund account

statement (or institutional equivalent)’ would make no sense

as applied to former prisoners.”)

Addressing the plaintiffs’ argument that §1997e(e) strips

the federal courts of effective remedial authority to vindicate

prisoners’ constitutional rights, the court declared that

“[t]here is a point beyond which Congress may not restrict the

availability of judicial remedies for the violations of constitutional rights without . . . rendering [those rights] utterly

hollow promises. That point has not been reached by enactment of §1997e(e) as applied here.” The district court also

ruled that the statute does not substantially burden plaintiffs’

right of access to the courts and held that Congress’s distinction between suits arising in prison and other suits is rationally related to several legitimate government interests and

therefore does not violate equal protection. Other equal protection questions raised by plaintiffs “merely show that the

statute might have been more narrowly tailored.” Neither does

§1997e(e) violate equal protection because it does not apply

to Bivens claims against federal officers and employees. “[T]he

Constitution does not require that claims asserted under

Bivens and those asserted under §1983 be treated identically.”

The court dismissed plaintiffs’ claims without prejudice,

noting that if a member of the plaintiff class develops a disease

caused by exposure to asbestos at a later time, that person

“would then appear to be able to satisfy the physical injury

requirement of §1997e(e).”

Zehner v. Trigg, 952 F. Supp. 1318, 1322–35 (S.D. Ind.

1997). But cf. Hollimon v. Detella, No. 96 C 3452 (N.D. Ill. Jan.

30, 1997) (Pallmeyer, Mag. J.) (unpublished) (Plaintiff stated

a claim for violation of Eighth Amendment rights, but

§1997e(e) bars suit because it prohibits actions for mental or

emotional injury with no showing of physical injury. Without

benefit of briefing, the court is unwilling to dismiss the

complaint “because this provision presents a substantial constitutional problem that the courts have not yet addressed.”).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 8, August 1997

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Retroactivity

Supreme Court holds that AEDPA provisions covering noncapital habeas cases are not applied retroactively. The U.S.

Supreme Court determined that chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996, which applies

to noncapital habeas corpus actions, should not be applied to

petitions that were pending on the effective date of the Act,

Apr. 24, 1996. The ruling reversed Lindh v. Murphy, 96 F.3d 856

(7th Cir. 1996) (en banc) (summarized in Habeas & Prison

Litigation Case Law Update #4 (Nov. 1996)), and resolved a

circuit split.

The court first made clear that the retroactivity analysis of

Landgraf v. USI Film Prods., 511 U.S. 244 (1994), is used as a

default rule only when normal rules of statutory construction

fail to indicate whether a statute should be applied retroactively. Resort to Landgraf is unnecessary here because “[t]he

statute reveals Congress’s intent to apply the amendments to

chapter 153 only to such cases as were filed after the statute’s

enactment (except where chapter 154 otherwise makes select

provisions of chapter 153 applicable to pending [capital

habeas] cases).”

“In §107(c), the Act provides that ‘Chapter 154 . . . shall

apply to cases pending on or after the date of enactment of this

Act.’ . . . We read this provision of §107(c), expressly applying

chapter 154 to all cases pending at enactment, as indicating

implicitly that the amendments to chapter 153 were assumed

and meant to apply to the general run of habeas cases only

when those cases had been filed after the date of the Act. . . .

While the terms of §107(c) may not amount to the clear

statement required for a mandate to apply a statute in the disfavored retroactive way, they do serve to make it clear as a

general matter that chapter 154 applies to pending cases when

its terms fit those cases at the particular procedural points

they have reached.”

“[E]verything we have just observed about chapter 154 is

true of changes made to chapter 153. . . . If, then, Congress was

reasonably concerned to ensure that chapter 154 be applied to

pending cases, it should have been just as concerned about

chapter 153, unless it had the different intent that the latter

chapter not be applied to the general run of pending cases.”

“Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two

chapters had evolved separately in the congressional process,

only to be passed together at the last minute, after chapter 154

had already acquired the mandate to apply it to pending cases.

Under those circumstances, there might have been a real

possibility that Congress would have intended the same rule

of application for each chapter . . . . But those are not the

circumstances here. Although chapters 153 and 154 may have

begun life independently and in different Houses of Congress,

it was only after they had been joined together and introduced

as a single bill in the Senate (S.735) that what is now §107(c)

was added. Both chapters, therefore, had to have been in mind

when §107(c) was added. Nor was there anything in chapter

154 prior to the addition that made the intent to apply it to

pending cases less likely than a similar intent to apply chapter

153. If anything, the contrary is true . . . .”

“The insertion of §107(c) with its different treatments of

the two chapters thus illustrates the familiar rule that negative

implications raised by disparate provisions are strongest when

the portions of a statute treated differently had already been

joined together and were being considered simultaneously

when the language raising the implication was inserted.”

The court also found support in new 28 U.S.C. §2264(b),

which tells district courts to review capital habeas petitions

“subject to subsections (a), (d), and (e) of section 2254.”

“While §2264(b) does not speak to the present issue with

flawless clarity, . . . the function of providing that §§2254(d)

and (e) be applicable in chapter 154 cases is, in fact, supportive

of the negative implication apparent in §107(c). There would

have been no need to provide expressly that (d) and (e) would

apply with the same temporal reach as the entirely new

provisions of chapter 154 if all the new provisions in both

chapters 153 and 154 were potentially applicable to cases

pending when the Act took effect . . . . The provision thus

confirms that Congress assumed that in the absence of such a

provision, §§2254(d) and (e) (as new parts of chapter 153)

would not apply to pending federal habeas cases.”

“We hold that the negative implication of §107(c) is that

the new provisions of chapter 153 generally apply only to

cases filed after the Act became effective.”

Lindh v. Murphy, 117 S. Ct. 2059, 2062–67 (1997) (four

justices dissenting). See also United States v. Rocha, 109 F.3d

225, 228–29 (5th Cir. 1997) (“the AEDPA’s COA requirement

does not retroactively apply to §2255 appeals in which the

final judgment and notice of appeal were entered before the

AEDPA’s effective date”).
2 Habeas & Prison Litigation Case Law Update, number 8, August 1997 • a publication of the Federal Judicial Center

One-Year Period of Limitation

Ninth Circuit holds that one-year period is subject to equitable tolling. Petitioner’s unsuccessful state appeals of his

conviction and death sentence ended with a denial of certiorari by the U.S. Supreme Court on Jan. 8, 1996. By that date

the state supreme court had denied his habeas petition. He

then requested and was granted appointment of counsel and

a stay of execution in federal district court, which also entered

an order that he file his habeas petition by Mar. 25, 1997. An

unexpected change in counsel led the new lead attorney to ask

the court to extend that filing date and equitably toll the

AEDPA’s one-year filing deadline, 28 U.S.C. §2244(d); AEDPA

Sec. 101. The district court granted the motion and extended

the deadline to Oct. 13, 1997, concluding that the one-year

time limit was not a jurisdictional bar but a statute of limitations subject to tolling. The warden at petitioner’s prison then

filed a petition for writ of mandamus in the appellate court.

The court first determined what the applicable one-year

period was for petitioner and agreed with two other circuit’s

that “AEDPA’s one-year time limit did not begin to run against

any state prisoner prior to the statute’s date of enactment. . . .

No petition filed on or before April 23, 1997—one year from

the date of AEDPA’s enactment—may be dismissed for failure

to comply with section 101’s time limit.” See Lindh v. Murphy,

96 F.3d 856, 866 (7th Cir. 1996) (en banc); Reyes v.

Keane, 90 F.3d 676, 679 (2d Cir. 1996). See also United States

v. Lopez, 100 F.3d 113, 116–17 (10th Cir. 1996) (same for

§2255 actions).

The court then held that “[t]he district court’s interpretation of AEDPA’s limitation period was . . . clearly correct. Unlike

other parts of AEDPA, section 101 is remarkably lucid. It is

phrased only as a ‘period of limitation,’ and ‘does not speak in

jurisdictional terms or refer in any way to the jurisdiction of

the district courts.’ . . . Nor does the jurisdictional provision of

the habeas statute, 28 U.S.C. §2241, ‘limit jurisdiction to

those cases in which there has been a timely filing’ in the

district court. . . . Indeed, both the Supreme Court and this

court have repeatedly held that timing provisions even more

unyieldingly phrased than AEDPA’s are statutes of limitations

subject to tolling. . . . Every relevant signal—from the Act’s

plain language, to its legislative history, to its structure—

points in the same direction: Section 101’s one-year timing

provision is a statute of limitations subject to equitable tolling,

not a jurisdictional bar.”

The court added that “[e]quitable tolling will not be available in most cases, as extensions of time will only be granted

if ‘extraordinary circumstances’ beyond a prisoner’s control

make it impossible to file a petition on time. . . . We have no

doubt that district judges will take seriously Congress’s desire

to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted.” Here,

the court concluded, tolling the statute of limitations was

justified.

Calderon v. United States Dist. Court for Central Dist. of Cal.,

112 F.3d 386, 388–92 (9th Cir. 1997).

Successive Petitions

Seventh and Ninth Circuits conclude that successive habeas

petition based on claim of newly discovered evidence may

not be filed if motion only challenges sentence. A second or

successive petition under 28 U.S.C. §2255 may be filed on the

basis of newly discovered evidence only if the evidence would

establish “that no reasonable factfinder would have found the

movant guilty of the offense” (emphasis added). Section 2254,

pursuant to §2244(b)(2)(B)(ii), contains similar language.

The petitioner in each circuit was challenging only his sentence when seeking permission to file a successive petition.

The Seventh Circuit, in ruling against the §2255 petitioner,

noted a motion challenging a sentence “does not fit within the

narrow confines of the amended statute, at least if it is

interpreted literally.” Although in pre-AEDPA law courts had

allowed some “actual innocence” claims to extend to sentencing issues, “we do not think the exception survives the

amendment. The ‘actual innocence’ exception of the prior law

was judge-made, and so its contours were appropriately

judge-fashioned and permissibly judge-expanded. The exception in the new law is graven in statutory language that could

not be any clearer. . . . [In] the absence of any indication in the

legislative history that ‘offense’ was being used in some special

sense different from its ordinary meaning, we think it highly

unlikely that Congress intended the word to bear a special

meaning. . . . We conclude that a successive motion under 28

U.S.C. §2255 (and presumably a successive petition for habeas corpus under section 2254, . . . which has materially

identical language) may not be filed on the basis of newly

discovered evidence unless the motion challenges the conviction and not merely the sentence.”

The Ninth Circuit also interpreted the statute strictly in

rejecting a §2254 petitioner’s application. Petitioner “fails

under [§2244(b)(2)(B)] because the constitutional error alleged . . . is ineffective assistance of counsel at sentencing,

and he cannot demonstrate that ‘no reasonable factfinder

would have found [him] guilty of the underlying offense’

(emphasis added).”

Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997);

Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997) (per

curiam). See also In re Medina, 109 F.3d 1556, 1565 (11th Cir.

1997) (per curiam) (denying application for successive petition: “Medina’s competency to be executed has nothing to do

with his guilt or innocence of the underlying offense. . . . The

§2244(b)(2)(B) exception to the bar against second habeas

applications has no application to claims that relate only to the

sentence.”); Greenawalt v. Stewart, 105 F.3d 1287, 1287–88

(9th Cir. 1997) (per curiam) (rejecting petitioner’s “attempt[]

to avoid the [§2244] limitations imposed on successive petitions by styling his petition as one pursuant to §2241”;

application to file successive petition denied, in part, because

“his claim that execution by lethal injection violates his

federal constitutional rights is not relevant to the question

whether he is guilty of murder in the first degree”).
Habeas & Prison Litigation Case Law Update, number 8, August 1997 • a publication of the Federal Judicial Center 3

Eleventh Circuit examines requirements for successive

petition based on newly discovered evidence. Pursuant to

§2244(b)(3)(A), petitioner filed an application for leave to file

a second §2254 petition on two claims of newly discovered

evidence. The appellate court held that petitioner failed to

satisfy the requirements of §2244(b)(2)(B). “First, Boshears

fails to demonstrate that the facts underlying these allegations

‘could not have been discovered through due diligence,’ as

required by §2244(b)(2)(B)(i). This prong means that an

applicant seeking permission to file a second or successive

habeas motion must show some good reason why he or she

was unable to discover the facts supporting the motion before

filing the first habeas motion.”

“An application that merely alleges that the applicant did

not actually know the facts underlying his or her claim does

not pass this test. Criminal defendants are presumed to have

conducted a reasonable investigation of all facts surrounding

their prosecution. . . . Thus, in evaluating an application under

§2244(b)(2)(B)(i), we inquire whether a reasonable investigation undertaken before the initial habeas motion was litigated, would have uncovered the facts the applicant alleges are

‘newly discovered.’” The court held that petitioner failed to

adequately explain why reasonable investigation would not

have previously uncovered the facts at issue.

Petitioner also failed to satisfy §2244(b)(2)(B)(ii), that “no

reasonable factfinder would have found the applicant guilty of

the underlying offense” because of the new evidence. “Our

inquiry essentially has three steps. First, we must identify ‘the

facts underlying the [applicant’s] claim’ and accept them as

true for purposes of evaluating the application. We next must

decide whether these facts establish a constitutional error.

Finally, we evaluate these facts in light of the evidence as a

whole to determine whether, had the applicant known these

facts at the time of his or her trial, the application clearly

proves that the applicant could not have been convicted. . . .

This is a very difficult standard to meet,” and the court

concluded that petitioner’s evidence “is simply not enough to

overcome the strict evidentiary standard.”

In re Boshears, 110 F.3d 1538, 1540–43 (11th Cir. 1997)

(per curiam).

Sixth Circuit holds that second or successive motions

filed in district court should be transferred to appellate

court. A federal prisoner “filed a second motion to vacate his

sentence under 28 U.S.C. §2255. The district court, noting

that Sims failed to obtain authorization to file his second

§2255 motion as required by 28 U.S.C. §2244(b)(3), transferred the motion to th[e appellate] court pursuant to 28

U.S.C. §1631. After his §2255 motion was transferred, Sims

filed a separate request under Sixth Circuit Rule 33 and

§2244(b)(3) seeking permission to file his second §2255

motion in the district court.”

Noting that many prisoners are improperly filing second or

successive motions in the district courts and that “district

courts in this circuit are not handling the processing of these

cases in the same way,” the court adopted the procedure set

forth in Liriano v. United States, 95 F.3d 119, 123 (2d Cir.

1996). Thus, “when a prisoner has sought §2244(b)(3) permission from the district court, or when a second or successive

petition for habeas corpus relief or §2255 motion is filed in the

district court without §2244(b)(3) authorization from this

court, the district court shall transfer the document to this

court pursuant to 28 U.S.C. §1631. The §2244(b)(3) motion

to file the second or successive petition or §2255 motion will

be deemed filed, for purposes of the one-year limitation

periods established by §2244(d) and §2255, on the date that

the §2244(b)(3) motion is given to prison authorities for

mailing and the prisoner has satisfied the verification requirements of Fed. R. App. P. 25(a)(2)(C).”

In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam).

Standard of Review

Tenth Circuit sets standard for denying habeas petition

despite failure to exhaust remedies. On petitioner’s appeal of

the denial of his habeas petition, the state claimed that

petitioner had failed to exhaust his state court remedies on one

claim. The appellate court decided that it could deny the

appeal on the merits despite the failure to exhaust. “[W]e

conclude that it is appropriate to address the merits of a habeas

petition notwithstanding the failure to exhaust available state

remedies where, as here, ‘the interests of comity and federalism will be better served by addressing the merits forthwith.’

Granberry v. Greer, 481 U.S. 129, 134 . . . (1987) . . . . The

[AEDPA] codifies the holding in Granberry by authorizing the

denial of a petition on the merits despite failure to exhaust

state remedies. See 28 U.S.C. §2254(b)(2). Because

§2254(b)(2), standing alone, does not contain the standard

for determining when a court should dismiss a petition on the

merits instead of insisting on complete exhaustion, we read

§2254(b)(2) in conjunction with Granberry.”

Hoxsie v. Kerby, 108 F.3d 1239, 1242–43 (10th Cir. 1997).

Seventh Circuit holds that new §2254(d) mandates deferential review to sufficiency of evidence claims. In ruling on

a state habeas petitioner’s claim that the evidence was insufficient to convict him, the appellate court concluded that the

standard of review for such claims set forth in Jackson v.

Virginia, 99 S. Ct. 2781 (1979), was changed by the AEDPA.

Although the test for sufficiency remains the same—habeas

relief may be granted only if “no rational trier of fact could

have found proof of guilt beyond a reasonable doubt”—

Jackson’s de novo review of the state courts’ decisions is

replaced by a more deferential review. Under 28 U.S.C.

§2254(d)(1), habeas relief may only be granted when the state

decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.”

“Because Jackson claims are mixed questions of law and

fact, we are compelled to hold that a writ of habeas corpus may

be issued for evidence insufficiency only if the state courts

have unreasonably applied the Jackson standard. Federal re-
4 Habeas & Prison Litigation Case Law Update, number 8, August 1997 • a publication of the Federal Judicial Center

view of these claims therefore now turns on whether the state

court provided fair process and engaged in reasoned, goodfaith decisionmaking when applying Jackson’s ‘no rational

trier of fact’ test. As we stated in Lindh [v. Murphy],

§2254(d)(1) ‘requires federal courts to take into account the

care with which the state court considered the subject. . . . [A]

responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment.’ 96 F.3d

[856, 871 (7th Cir. 1996)].”

Following this standard, the court held that “we cannot say

the state judges acted as unreasonable jurists in their application of the Jackson standard.” (Note: The court reviewed this

claim under the AEDPA even though petitioner filed it before

Apr. 24, 1996. The Supreme Court’s Lindh decision may

require remand for review under the pre-AEDPA standards, but

we believe the discussion of §2254(d)(1) merits reporting.)

Gomez v. Acevedo, 106 F.3d 192, 197–201 (7th Cir. 1997).

Cf. Hall v. Washington, 106 F.3d 742, 748–49 (7th Cir. 1997) (in

holding state court’s findings were unreasonable under

§2254(d), stating that the “‘unreasonableness’ standard allows the state court’s conclusion to stand if it is one of several

equally plausible outcomes. On the other hand, Congress

would not have used the word ‘unreasonable’ if it really meant

that federal courts were to defer in all cases to the state court’s

decision. Some decisions will be at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary, that a writ must issue.”).

Certificate of Appealability

Fifth Circuit holds that petitioner must exhaust state remedies to obtain COA. The district court dismissed petitioner’s

habeas claims for failure to exhaust state remedies on most of

his claims, and denied his request for a certificate of probable

cause (CPC). The appellate court construed petitioner’s appeal

as a request for a certificate of appealability (COA), and had to

“decide what standards apply to a COA request when the

district court denied habeas relief on a procedural ground,

rather than on the merits.”

Under pre-AEDPA law, the Fifth Circuit had held that “a

habeas petitioner who ‘has failed to exhaust all of the

postconviction claims he now seeks to raise . . . has asserted no

cognizable right to federal habeas relief under §2254’” and

thus was not entitled to a CPC. More recently, the circuit held

that “[t]he standard for obtaining a COA is the same as for a

CPC. . . . Thus, in deciding whether to issue a COA to Murphy,

we . . . engage in a two-step process. First, we will decide

whether Murphy has made a credible showing of exhaustion.

If he has, we will determine whether his underlying claim is

debatable among reasonable jurists.”

“We need proceed no further than the first step. When a

habeas petition includes both exhausted claims and

unexhausted claims, the district court must dismiss the entire

‘mixed petition.’ . . . Murphy has failed to exhaust most of his

claims for relief. He has not alleged any ‘absence of available

State corrective process,’ 28 U.S.C. §2254(b)(1)(B)(i), or that

‘circumstances exist that render such process ineffective to

protect [his] rights,’ 28 U.S.C. §2254(b)(1)(B)(ii). Therefore,

he has failed to satisfy the exhaustion requirement and,

accordingly, is not entitled to a COA.”

Murphy v. Johnson, 110 F.3d 10, 11–12 (5th Cir. 1997).

Fifth Circuit holds that COA is not required for §2241

appeal. “We must decide whether 28 U.S.C. §2253, as recently amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 . . . requires that Ojo receive a certificate

of appealability (‘COA’) before we may hear his appeal. . . .

Conspicuously absent from the statute is any mention of

appeals in §2241 proceedings. As the plain language of §2253

unambiguously indicates that a COA is not required in such

cases, we need look no further.”

Ojo v. I.N.S., 106 F.3d 680, 681 (5th Cir. 1997). Accord Forde

v. U.S. Parole Comm’n, 114 F.3d 878, 879 (9th Cir. 1997);

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

Special Procedures in Capital Cases

Fourth Circuit holds that Eleventh Amendment precludes

suit to enjoin state from attempting to invoke new

habeas procedures in capital cases. Five state inmates sought

a declaratory judgment that Maryland does not qualify for the

AEDPA’s special habeas procedures in capital cases at chapter

154 (28 U.S.C. §§2261–2266) and an injunction forbidding

the state from invoking chapter 154 until it complied with the

statute. The district court concluded that the state did not

comply with chapter 154’s requirements and was not entitled

to Eleventh Amendment immunity, and therefore held that the

state was “not presently entitled to invoke the benefits of

Chapter 154” and enjoined it from attempting to invoke the

new standards in any future federal habeas actions brought by

the five inmates. The state appealed, arguing that the Eleventh

Amendment bars this action.

The appellate court vacated the judgment and remanded

with instructions to dismiss. “[T]he Eleventh Amendment

protects the sovereign rights of states from abridgement by

the federal judiciary. Thus, the State of Maryland and the

named officials are not subject to this suit unless the plaintiffs

can demonstrate that this case falls within one of the exceptions to Eleventh Amendment immunity.” The court ruled

that none of the claimed exceptions applied here: the state has

not engaged in “a continuing violation of federal law” by

merely threatening to invoke the new procedures; this action

does not fall within the habeas corpus exception to Eleventh

Amendment immunity because it is not, in fact, a habeas

action; and the state’s “announced intention to invoke chapter

154 does not constitute a waiver of Eleventh Amendment

immunity.” The court also ruled that “considerations of judicial economy and convenience” in resolving this issue in one

consolidated action rather than through individual habeas

petitions cannot overrule the state’s right to invoke the Eleventh Amendment.

Booth v. Maryland, 112 F.3d 139, 141–46 (4th Cir. 1997).
Habeas & Prison Litigation Case Law Update, number 8, August 1997 • a publication of the Federal Judicial Center 5

PRISON LITIGATION

Proceedings In Forma Pauperis

Eleventh Circuit holds that §1915(e)(2) applies to cases

pending before PLRA’s enactment; also holds that filing fee

requirements do not violate equal protection and supersede

conflicting provisions of Rule 24(a). The plaintiff filed his

complaint on Jan. 29, 1996. On June 18, 1996, the district

court dismissed it sua sponte for failure to state a claim,

pursuant to 28 U.S.C. §1915(e)(2)(B)(ii). On July 31, 1996,

the court granted plaintiff’s motion to proceed IFP on appeal

and ordered plaintiff to comply with §§1915(a) and (b). On

appeal, plaintiff argued that the district court erred in applying

§1915(e)(2) to his complaint because he filed the lawsuit

before enactment of the Prison Litigation Reform Act (PLRA).

He maintained that under pre-PLRA law, the first test of his

complaint’s sufficiency would probably have been in connection with a Rule 12(b)(6) motion and he could have amended

it in light of the defendants’ motion. By dismissing his complaint under §1915(e)(2), the court deprived him of this

possibility. Based on Landgraf v. USI Film Prods., 511 U.S. 244

(1994), the Eleventh Circuit held that §1915(e)(2) was

wholly procedural and did not deprive plaintiff of any rights

he possessed when he filed the lawsuit.

The court also considered arguments that the filing fee

provisions failed equal protection rational basis review and

were superseded by Fed. R. App. P. 24(a). Citing Anderson v.

Singletary, 111 F.3d 801 (11th Cir. 1997), the court stressed

that Congress had a rational basis to believe that the PLRA’s fee

requirements would curtail abusive prisoner litigation. As to

the conflict between the PLRA’s fee provisions and Rule 24(a),

the Eleventh Circuit adopted the Fifth Circuit’s analysis and

holding in Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir.

1996): “To the extent that the Rules Enabling Act (as expressed in Rule 24(a)) actually conflicts with the PLRA, we

hold that the statute repeals the Rule.”

Mitchell v. Farcass, 112 F.3d 1483, 1486–89 (11th Cir.

1997). See also Nicholas v. Tucker, 114 F.3d 17, 19–21 (2d Cir.

1997) (PLRA’s filing fee provisions do not violate equal protection or deny access to courts).

Fifth Circuit rules that district court has discretion under

§1915(a)(3) to certify that prisoner appeals are not taken in

good faith; also holds that statute does not conflict with Rule

24(a). The district court dismissed plaintiff’s claims as frivolous and denied his motion for leave to appeal IFP. It also

certified that the appeal was not taken in good faith pursuant

to Fed. R. App. P. 24(a). After the plaintiff complied with a

Fifth Circuit order that he fulfill the PLRA’s filing-fee requirements, the court of appeals considered whether he was entitled to proceed IFP on appeal “and more specifically, the

proper application of Fed. R. App. P. 24(a) . . . in light of the

PLRA.” It reviewed Floyd v. United States Postal Serv., 105 F.3d

274 (6th Cir. 1997), which reached two conclusions on the

same issues: “(1) conditional phrases in section 1915(a) and

(b) create a prisoner/nonprisoner dichotomy between the

various parts of subsection (a); and (2) subsection (a)(3),

which . . . applies only to nonprisoners, poses an absolute bar

to IFP appeals and hence impliedly repeals part of Rule 24(a).”

The Fifth Circuit rejected both conclusions, emphasizing that

the Floyd court’s analysis “on the interplay between subsections (a) and (b) of section 1915” frustrates the PLRA’s goals by

distinguishing between prisoner and nonprisoner appeals.

“We . . . hold that the district courts retain the discretion to

certify under section 1915(a)(3) that IFP appeals, from prisoners and nonprisoners alike, are not taken in good faith.”

The court distinguished two of its decisions—Jackson v.

Stinnett, 102 F.3d 132 (5th Cir. 1996), and Strickland v. Rankin

County Correctional Facility, 105 F.3d 972 (5th Cir. 1997)—

which held that §1915 impliedly repealed portions of Rule 24.

Here, the appeal did not involve provisions of §1915 that

conflict with Rule 24, “The perceived conflict noted in Floyd

is that section 1915(a)(3) does not permit an appeal to

proceed IFP if the appeal is not taken in good faith, whereas

Rule 24(a) allows an IFP appellant to apply to the courts of

appeals for IFP status within 30 days of such a certification.”

The Rule 24(a) provisions that spelled out the district court’s

role in certifying IFP appeals pursuant to language contained

in §1915(a) were adopted in 1967. The PLRA amendments to

§1915 simply moved the language of subsection (a) to subsection (a)(3). This does not show “congressional intent to

abrogate procedures in Rule 24 that have coexisted peacefully

for three decades with the identical provision.”

The court concluded that the PLRA did not overrule precedent providing for appellate review of a district court’s certification that an IFP appeal is not taken in good faith. Consequently, it outlined the procedure that must be followed: “(1)

a district court may certify that an IFP appeal is not taken in

good faith under section 1915(a)(3) and Rule 24(a); (2) if the

trial court does so, it is required under Rule 24(a) to set forth

in writing the reasons for its certification; (3) within the time

prescribed by Rule 4, the appellant either may pay the full

filing fee and any relevant costs and proceed on appeal for

plenary review, or contest the certification decision by filing a

motion for leave to proceed IFP with the court of appeals. If the

latter be done and the appellate IFP certification is secured, the

motion therefor shall be deemed to be a timely notice of

appeal. When the prisoner opts to challenge the certification

decision, the motion must be directed solely to the trial court’s

reasons for the certification decision. The said motion and

deemed notice of appeal shall be a filing for purposes of the

PLRA and will trigger the financial screening and assessment

procedures thereof.” Because the lower court record lacked
6 Habeas & Prison Litigation Case Law Update, number 8, August 1997 • a publication of the Federal Judicial Center

findings on two substantive issues, the case was remanded to

the district court to make the findings and conduct applicable

financial screening and assessment procedures.

Baugh v. Taylor, 117 F.3d 197, 199–202 (5th Cir. 1997).

Accord Newlin v. Helman, No. 96-4229 (7th Cir. July 23, 1997)

(Easterbrook, J.).

Fifth Circuit holds that PLRA’s three-strikes provision

does not infringe prisoners’ right of access to courts or

to equal protection. The district court construed plaintiff’s

habeas corpus petition challenging his placement in administrative segregation as a 42 U.S.C. §1983 suit, dismissed it as

frivolous under 28 U.S.C. §1915(e)(2)(B)(i), and barred him

from further IFP filings under §1915(g). Plaintiff appealed.

The Fifth Circuit first concluded, in accord with its ruling

regarding §2255 actions in United States v. Cole, 101 F.3d 1076

(5th Cir. 1996), that the new PLRA requirements do not apply

to §2254 habeas petitions. It then decided that the district

court had properly characterized the plaintiff’s habeas action

as a §1983 suit, which is a civil action within the meaning of

the PLRA. According to the court’s “bright-line rule,” the

proper vehicle for challenging a prison procedure that affects

the timing of release from custody is a §1983 suit unless a

favorable determination would automatically entitle the prisoner to accelerated release. Although plaintiff claimed that

reassignment from administrative segregation would make

him eligible for parole, a successful suit would have only an

indirect impact on whether he eventually received parole. The

PLRA therefore applied to his case.

The court disagreed with plaintiff’s contention that the

three-strikes provision unconstitutionally blocks prisoners’

access to the courts and discriminates against them in violation of the Due Process Clause. A prisoner with three strikes

“still has the right to file suits if he pays the full filing fees in

advance, just like everyone else.” Since no fundamental personal right or suspect class was involved, the only question

was whether the provision makes a rational distinction between prisoners and other litigants. The court agreed with the

Fourth and Sixth Circuits that it does. See Roller v. Gunn, 107

F.3d 227 (4th Cir. 1997); Hampton v. Hobbs, 106 F.3d 1281 (6th

Cir. 1997). Because plaintiff had at least three strikes, “he may

not proceed IFP in this or any other federal lawsuit which does

not involve ‘imminent danger of serious physical injury.’”

Carson v. Johnson, 112 F.3d 818, 820–23 (5th Cir. 1997). See

also Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997) (proper

focus when examining complaint under §1915(g) “must be

the imminent danger faced by the inmate at the time of the

alleged incident, and not at the time the complaint was filed”).

D.C. Circuit rules that fee requirements apply to petition

for writ of prohibition, and petitioner must pay fees despite

subsequent release from prison. Shortly before his release

from prison, petitioner sought a writ of prohibition in the D.C.

Circuit and filed a motion to proceed IFP. The court rejected

his contention that because certain claims arose out of criminal proceedings, the petition should be treated like a habeas

petition and, therefore, the PLRA’s prepayment obligations

should not apply. It held that the term “civil action” in

§1915(b)(4) applies to a petition for a writ of prohibition that

includes underlying civil claims, agreeing with other circuits

“that it would defeat the purpose of the PLRA if a prisoner

could evade its requirements simply by dressing up an ordinary civil action as a petition for mandamus or prohibition or

by joining it with a petition for habeas corpus.”

The court then considered how the filing fee procedures

applied to petitioner. He had not submitted the required forms

or made the required payments while he was incarcerated and

argued that he was not bound by the PLRA after being released

from prison. “That Smith currently lacks the means to pay the

applicable filing fee does not . . . relieve him of his obligation

to comply with past due procedural and payment obligations

under the PLRA.” Section 1915(b)(4), which provides that a

prisoner shall not be prohibited from bringing an action or

appeal because of lack of assets or means to pay the initial

partial filing fee, does not override “the court’s obligation to

‘assess and, when funds exist, collect,’ §1915(b)(1), applicable fees from petitioners who, though lacking assets at the

time of filing, subsequently gain means, either in their prison

account or after release.” Petitioner must file an affidavit

within thirty days showing the balances in his prison account

as of the date he filed his petition and his income for six

months prior to that date, as well as for the period from the

filing date until the date of his release from prison.

In re Smith, 114 F.3d 1247, 1250–52 (D.C. Cir. 1997).

Sixth Circuit holds that “civil action” in §1915 does not

encompass habeas corpus actions or § 2255 motions to

vacate sentence, but prisoners seeking such relief must

comply with §1915(a)(1). The Sixth Circuit consolidated

appeals from the denial of petitions for a writ of habeas corpus

under 28 U.S.C. §2254 and a motion to vacate sentence under

§2255 in order to determine the applicability of the PLRA’s

filing fee provisions to both types of cases. It decided that

“[r]eading the term ‘civil’ to include habeas petitions and

motions to vacate produces absurd results.”

The court further considered how a prisoner who files a

§2254 or §2255 action in district court can avoid payment of

the required filing fees. “Unlike the appellate courts, which

have Fed. R. App. P. 24 available to waive the fees, no

equivalent rule exists for the district courts.” It noted that

under §1915(a)(1) a district court may allow any proceeding

to go forward without prepayment of fees by a person who

submits an affidavit containing specified information. The

court held that a prisoner seeking §2254 or §2255 relief as a

pauper must file the requisite affidavit but does not have to file

the trust account statement required by §1915(a)(2).

Kincade v. Sparkman, No. 96-5842 (6th Cir. June 26, 1997)

(Martin, C.J.). See also Martin v. Bissonette, No. 96-1856 (1st

Cir. July 11, 1997) (Selya, J.) (PLRA does not apply to habeas

petitions); United States v. Levi, 111 F.3d 955, 956 (D.C. Cir.

1997) (filing fee provisions do not apply to §§2254 and 2255

proceedings); McIntosh v. United States Parole Comm’n, 115
Habeas & Prison Litigation Case Law Update, number 8, August 1997 • a publication of the Federal Judicial Center 7

F.3d 809, 811–12 (10th Cir. 1997) (§2241 habeas proceedings

and appeals are not “civil actions” under the PLRA). Cf. Santee

v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (appeal of order

dismissing application for writ of mandamus seeking review

of underlying habeas corpus petition “is not an appeal of a civil

action within the scope of PLRA”).

Fifth Circuit holds that released prisoner must file

affidavit required by §1915(a)(1) but does not have to meet

the filing fee requirements of §§1915(a)(2) and (b). While in

prison, plaintiff filed a §1983 lawsuit. By the time his suit was

dismissed and he filed a notice of appeal, plaintiff had been

released on parole. The Fifth Circuit considered the ambiguous wording of §1915(a)(1), which “makes it unclear

whether the affidavit requirement applies to all persons or

only prisoners.” In the court’s view, “the most natural reading

. . . is that Congress intended all petitioners to be more specific

in their (a)(1) affidavits and that it intended prisoners to meet

additional requirements under (a)(2).” The fee requirement of

§1915(b) also applies exclusively to prisoners. Because plaintiff was not a prisoner when he filed his notice of appeal, he

did not have to meet the requirements of §§1915(a)(2) or (b).

The court of appeals gave him thirty days to file an affidavit

complying with §1915(a)(1).

Haynes v. Scott, 116 F.3d 137, 139 (5th Cir. 1997). Cf. Gay

v. Texas Dep’t of Corrections State Jail Div., 117 F.3d 240, 242

(5th Cir. 1997) (plaintiff required to pay filing fees because he

filed notice of appeal before being released from prison).

Fifth Circuit rules that PLRA does not require prisoner to

pay entire filing fee in prior civil case before filing second

complaint. The plaintiff filed a §1983 complaint in May 1996,

along with a motion to proceed IFP. In August 1996, he filed

a second §1983 complaint and motion to proceed IFP. The

district court sua sponte denied the second motion to proceed

IFP and dismissed the complaint on the grounds that appellant

could not file any other complaints until the full filing fee was

paid in his previously filed case.

The Fifth Circuit reversed. “Nowhere does the PLRA require a prisoner to pay the entire filing fee in a prior civil case

before filing a second complaint.” The plaintiff had thus far

complied with the PLRA’s filing fee requirements with respect

to both of his complaints. In these circumstances, dismissal

of his second complaint contradicted the directive of

§1915(b)(4) that “[i]n no event shall a prisoner be prohibited

from bringing a[n action] for the reason that the prisoner

has no assets and no means by which to pay the initial filing

fee.” The district court also failed to follow the procedure

established by the Fifth Circuit for screening frivolous IFP

claims, which calls for an initial determination of IFP status

based entirely on economic factors. Finally, dismissal of the

second complaint “had the effect of impermissibly limiting

the number of claims, frivolous or otherwise, that a pauper

may bring.”

Walp v. Scott, 115 F.3d 308, 309–10 (5th Cir. 1997).

Suits by Prisoners

Fourth Circuit holds that attorney fee provisions apply to

juveniles incarcerated in juvenile detention facilities, and

the PLRA governs all fee awards entered after its effective

date. A group of juveniles successfully challenged the constitutionality of juvenile prison conditions. In several orders

entered before and after enactment of the PLRA, the district

court found that the juvenile plaintiffs were entitled to reasonable attorneys’ fees pursuant to 42 U.S.C. §1988. Attorney fee

provisions in the PLRA state that no fees shall be awarded to a

“prisoner who is confined to any jail, prison, or other correctional facility” in an action seeking redress for unconstitutional prison conditions unless certain requirements are met.

See 42 U.S.C. §1997e(d)(1)(A) and (B). No award made can

be based on a rate “greater than 150 percent of the hourly rate

established under section 3006A of title 18 . . . for payment of

court-appointed counsel.” Section 1997e(d)(3). In successive

orders, the district court held that the PLRA did not apply to fee

awards for work performed but not compensated before its

enactment on Apr. 26, 1996. The court further held that fees

for work performed subsequent to enactment were not limited

by the PLRA because, while juveniles were considered “prisoners” under §1997e(h) (and under 18 U.S.C. §3626(g)(3)),

they were not “confined to a prison, jail, or other correctional

facility” as the phrase is defined in §1997, a section not

amended by the PLRA.

In reviewing the district court’s orders, the Fourth Circuit

considered three issues: “First, are the PLRA’s limitations on

attorneys’ fees applicable to juveniles incarcerated in juvenile

facilities? Second, if applicable to juveniles, are the limitations

applicable to fee awards for work performed, but not compensated, prior to the enactment of the PLRA? And third, do the

PLRA’s limitations on attorneys’ fees impose new standards for

determining the appropriateness of a fee award in a prison

conditions suit?” Resolution of the first question turned on

“whether Congress intended the phrase ‘jail, prison, or other

correctional facility’ to include juvenile detention facilities

when it enacted the PLRA.” The defendant contended that

because the definition of “prison” in §3626(g)(5) included

juvenile facilities for the purpose of stating a cause of action,

“prison” includes juvenile facilities for the purpose of awarding fees under §1997e. Plaintiffs countered that (1) because

Congress did not revise §1997 to include juvenile facilities,

it did not intend §1997e to apply to them; (2) Congress

intentionally defined “prison” to include juvenile facilities

only in §3626(g)(5); (3) Congress has historically treated

adult and juvenile prisoners differently; and (4) it is not

inconsistent to define a juvenile not incarcerated in a “prison”

as a “prisoner” because juveniles transferred to adult facilities

are subject to the same rules regardless of age. The appellate

court recognized “the apparent conflict with the definition of

‘institution’” in §1997, but held “that a limitation of the phrase

‘jail, prison, or other correctional facility’ to adult prison

facilities in [§1997e] would be inconsistent with other language within the section, other sections of the Act, and the
Habeas & Prison Litigation Case Law Update, no. 8, Aug. 1997

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One Columbus Circle, N.E.

Washington, DC 20002-8003

plain and usual meanings of the relevant terms.” Thus, the fee

provisions apply to juveniles in juvenile facilities.

With regard to fees awarded for services performed before

enactment of the PLRA, §1997e(d)(3) “mandates that all

attorney’s fees awarded after April 26, 1996, in any prison

conditions lawsuit comply with the restrictions imposed by

the PLRA.” All of the orders appealed were entered after that

date. “Congress could have easily inserted language to restrict

the application of these limitations to awards for work performed subsequent to the PLRA’s enactment, but it did not do

so.” The same analysis applies to §§1997e(d)(1) and (d)(2).

The court of appeals disagreed with other courts’ decisions

that application of the fee limitations to work done before the

Act’s effective date is impermissibly retroactive. It distinguished two of those cases because the fee awards were made

before the PLRA’s enactment. The court explained that in

Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the Court

specifically cited attorney fee determinations as secondary

conduct that “does not give rise to concerns about retroactivity.” Nor are the limitations so fundamentally unfair as to

result in manifest injustice. Contra Hadix v. Johnson, 965

F. Supp. 996, 999–1000 (W.D. Mich. 1997); Blissett v. Casey,

No. 93-CV-218 (N.D.N.Y. June 20, 1997) (McCurn, J.).

The court also addressed the three-step analysis required

by §1997e(d). The court must be satisfied that the plaintiff is

eligible for fees under 42 U.S.C. §1988 and that the request is

reasonable; the plaintiff must prove “the fee was directly and

reasonably incurred in proving an actual violation of the

plaintiff’s rights . . . and . . . is proportionately related to the

court ordered relief . . . or . . . was directly and reasonably

incurred in enforcing the relief ordered”; and plaintiff’s counsel fees can be no more than 150% of the hourly rate available

to court-appointed counsel. Plaintiffs had proven eligibility

and reasonableness under §1988. However, on remand the

district court still must consider whether plaintiffs proved the

second criterion; and if it finds they have, the court must

recompute its fee award to conform to the hourly cap.

Alexander S. v. Boyd, 113 F.3d 1373, 1380–88 (4th Cir.

1997) (Murhaghan, J., dissenting on retroactive application

issue). Cf. Clark v. C.O. Phillips, 965 F. Supp. 331, 334, 338

(N.D.N.Y. 1997) (under §1997e(d), fee award of 79% of

judgment awarded plaintiff is “proportionately related” to the

relief obtained; also, under §1997e(d)(2), it is reasonable to

apply 25% of judgment to attorney fee and cost award).

Fifth Circuit rules that “physical injury” required in

§1997e(e) must comport with Eighth Amendment standards. The Fifth Circuit found no abuse of discretion in the

district court’s dismissal of plaintiff’s civil rights complaint as

frivolous under §1915(e)(2). A prisoner cannot bring a civil

action for mental or emotional injury “without a prior showing of physical injury” under 42 U.S.C. §1997(e)e. Since there

is no definition of “physical injury” in the statute, “the well

established Eighth Amendment standards guide our analysis.

. . . That is, the injury must be more than de minimus, but need

not be significant.” The plaintiff’s “alleged injury—a sore,

bruised ear lasting for three days—was de minimus.”

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 9, November 1997

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

HABEAS CORPUS

Second or Successive Petition

Four more circuits conclude that amended §2255 precludes

second or successive petition based on Bailey claim; however, Second and Third Circuits hold that claim may be

pursued under §2241, and Sixth Circuit holds that limits on

second or successive petitions should not apply retroactively. Each circuit’s petitioner had been convicted of or pled

guilty to using or carrying a firearm during and in relation to

a drug trafficking offense, 18 U.S.C. §924(c)(1). Each petitioner had filed an unsuccessful 28 U.S.C. §2255 motion

before the decision in Bailey v. United States, 116 S. Ct. 501

(1995), which tightened the definition of “using” a firearm

under §924(c)(1). Claiming that Bailey invalidated their

§924(c)(1) convictions, all four petitioners sought to file

another §2255 motion, but not until after passage of the Antiterrorism and Effective Death Penalty Act on April 24, 1996.

The AEDPA amended §2255 to require that a second or successive §2255 motion be certified by the appellate court to

contain either newly discovered evidence proving that defendant was not guilty or, for these cases, “a new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.”

 The four circuits concluded that, under amended §2255,

the petitioners could not file another motion. As the Fourth

Circuit, sitting en banc, stated, “the Bailey Court neither

referred to, nor relied upon, any provision of the Constitution

as support for its holding. . . . We hold that the decision of the

Supreme Court in Bailey did not announce a new rule of

constitutional law and accordingly may not form the basis for

a second or successive motion to vacate sentence pursuant to

28 U.S.C.A. §2255. In reaching this conclusion, we join the

other circuit courts of appeals that have considered this

question. See Coleman v. United States, 106 F.3d 339, 341 (10th

Cir. 1997) (per curiam); United States v. Lorentsen, 106 F.3d

278, 279 (9th Cir. 1997); In re Blackshire, 98 F.3d 1293, 1294

(11th Cir. 1996) (per curiam); Nunez v. United States, 96 F.3d

990, 992 (7th Cir. 1996).”

The Fourth Circuit also found that Bailey has not been

given retroactive application, holding that the Supreme Court

must “declare[] the collateral availability of the rule in question, either by explicitly so stating or by applying the rule in

a collateral proceeding. Because the Supreme Court has done

neither with respect to the rule announced in Bailey, Vial

would not be entitled to file a successive §2255 motion based

on Bailey even if it contained a rule of constitutional law.”

Finally, the court rejected petitioner’s claim that, by barring

his second motion, amended §2255 is an unconstitutional

suspension of the writ of habeas corpus. In Felker v. Turpin,

116 S. Ct. 2333, 2339–40 (1996), “the Supreme Court determined that the provision of the AEDPA limiting second and

successive habeas corpus petitions by persons convicted in

state courts does not constitute a suspension of the writ. . . .

We conclude that the reasoning of the Court with respect to

limitations on second and successive habeas petitions pursuant to §2254 applies with equal force to the identical language

in §2255.”

In re Vial, 115 F.3d 1192, 1195–98 (4th Cir. 1997) (en banc)

(three judges dissented).

The Second and Third Circuits agreed with Vial, but also

considered whether petitioners had alternative means to raise

their Bailey claims. Both held that, under the narrow circumstances here, petitioners could move in the district court for a

writ of habeas corpus under 28 U.S.C. §2241. Section 2255,

before and after the AEDPA amendments, provides a “safety

valve”: “An application for a writ of habeas corpus in behalf of

a prisoner who is authorized to apply for relief by motion

pursuant to this section, shall not be entertained if it appears

that the applicant has failed to apply for relief, by motion, to

the court which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of his detention.”

(Emphasis added.) After reviewing the relevant legislative and

case histories, the circuits reached similar conclusions.

The Third Circuit found that petitioner “does not have and,

because of the circumstance that he was convicted for a violation of §924(c)(1) before the Bailey decision, never had an

opportunity to challenge his conviction as inconsistent with

the Supreme Court’s interpretation of §924(c)(1). If, as the

Supreme Court [has stated], it is a ‘complete miscarriage of

justice’ to punish a defendant for an act that the law does not

make criminal, thereby warranting resort to the collateral

remedy afforded by §2255, it must follow that it is the same

‘complete miscarriage of justice’ when the AEDPA amendment

to §2255 makes that collateral remedy unavailable. In that

unusual circumstance, the remedy afforded by §2255 is ‘inadequate or ineffective to test the legality of [Dorsainvil’s]

detention,’” and there is “no reason why §2241 would not be

available under these circumstances, provided of course that

Dorsainvil could make the showing necessary to invoke

habeas relief, an issue for the district court.”
2 Habeas & Prison Litigation Case Law Update, number 9, November 1997 • a publication of the Federal Judicial Center

The court cautioned that its decision should “not suggest

that §2255 would be ‘inadequate or ineffective’ so as to enable

a second petitioner to invoke §2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of the amended §2255.” Petitioner “is in an unusual

situation because Bailey was not yet decided at the time of his

first §2255 motion. Our holding that in this circumstance

§2255 is inadequate or ineffective is therefore a narrow one.”

In re Dorsainvil, 119 F.3d 245, 247–52 (3d Cir. 1997).

The Second Circuit, citing Dorsainvil with approval and

following similar reasoning, agreed that resort to §2255’s

“safety valve” should be limited, and it tried to outline when

§2241 could be used. “We have already stated that ‘inadequate

or ineffective’ is not limited merely to the practical considerations suggested by the government, but refers to something

that is still less than the full set of cases in which §2255 is

either unavailable or unsuccessful. We now hold that that

‘something’ is, at the least, the set of cases in which the

petitioner cannot, for whatever reason, utilize §2255, and in

which the failure to allow for collateral review would raise

serious constitutional questions.”

“Because the cases in which serious questions as to

§2255’s constitutional validity are presented will be relatively

few, our interpretation does not permit the ordinary disgruntled federal prisoner to petition for habeas corpus. Nor,

however, does it keep the courts closed in cases where justice

would seem to demand a forum for the prisoner’s claim in so

pressing a fashion as to cast doubt on the constitutionality of

the law that would bar the §2255 petition.”

“Since Triestman cannot bring his claim under the newlyamended §2255, and since any attempt by Congress to preclude all collateral review in a situation like this would raise

serious questions as to the constitutional validity of the

AEDPA’s amendments to §2255, we find that §2255 is inadequate and ineffective to test the legality of Triestman’s detention. We therefore hold that Triestman is entitled to bring a

petition for a writ of habeas corpus in the district court

pursuant to §2241(c)(3).”

The Second Circuit also addressed a procedural question:

whether it could rule on an application to file a second motion

within the thirty-day period required by §2244(b)(3)(D), but

then stay the order and reconsider its decision later, as it did

here. “[T]he parties agree that we have complied with

[§2244(b)(3)(D)] by denying the motion within thirty days,

even though we then stayed our mandate and ordered briefing

on the question of whether or not it was appropriate to

reconsider that decision. The parties also agree that, notwithstanding the restrictions on appealability in §2244(b)(3)(E),

this court has the authority to order a rehearing sua sponte. It

is well-established that a court of appeals is entitled both to

reconsider a prior decision . . . and to order a rehearing sua

sponte . . . . By mandating that the initial decision of the court

of appeals ‘shall not be the subject of a petition for rehearing’

(emphasis added), §2244(b)(3)(E) provides only that a disappointed litigant may not ask the court to reconsider its

certification decision. By its plain terms, it does not purport to

limit the court’s own power to review its decisions or to

undertake a rehearing. As such, the government concedes,

and we agree, that under the AEDPA, a court of appeals retains

the authority to order a rehearing sua sponte.”

Triestman v. United States, 124 F.3d 361, — (2d Cir. 1997).

The Sixth Circuit took a different approach. Petitioner’s

first §2255 motion was denied in July 1995 and affirmed on

appeal in June 1996. Between those dates, Bailey was decided

and the AEDPA enacted. Petitioner sought permission to file

another §2255 motion, based on Bailey, in November 1996.

Under those circumstances, “[t]his case presents us primarily

with the question of whether AEDPA’s new restriction on filing

multiple §2255 motions ‘is the type of provision that should

govern cases arising before its enactment.’ Landgraf v. USI Film

Prods., 511 U.S. 244, 280 (1994).”

The court determined that before the AEDPA, petitioner

could have filed a second §2255 motion based on Bailey. It also

noted the “safety valve” language in §2255. “If ‘the remedy by

[§2255] motion is inadequate or ineffective to test the legality

of his detention,’ then a federal prisoner may apply for a writ

of habeas corpus under 28 U.S.C. §§2241, 2244. 28 U.S.C.

§2255. If AEDPA bars Hanserd from raising his Bailey issue in

a §2255 motion, he could file a habeas petition pursuant to

this provision.”

“A §2244 motion would not be barred by the new restrictions on successive motions and petitions. Section 2244(a)

allows a district judge to refuse to entertain a repeat application for the writ by a federal prisoner only ‘if it appears that the

legality of such detention has been determined by a judge or

court of the United States on a prior application for a writ of

habeas corpus, except as provided in section 2255.’. . . Hanserd’s previous §2255 motion was not an application for a writ

of habeas corpus; and, in any case, the exception just quoted,

which was inserted by AEDPA §106(a), explicitly states that

§2244(a) should not be read to supersede the provisions of

§2255. Similarly, §2244(b), which contains new limits similar

to those in §2255 on successive petitions, applies by its terms

only to a second or successive application under §2244 or

§2254. 28 U.S.C. §2244(b)(2), (b)(3). Hanserd’s §2255 motion was, axiomatically, a motion rather than an application

and was filed in district court under §2255 rather than §2244

or §2254. We therefore conclude that if Hanserd is now barred

from filing a §2255 motion, he may raise his Bailey claim

under §2244.”

“With this discussion in mind we now turn to Landgraf’s

retroactivity analysis. We analyze the case first under the

assumption that §2244 relief is available, and then under a

contrary assumption. . . . [B]ecause §2244 would provide an

equivalent remedy as a §2255 motion, requiring Hanserd to

use the former instead of the latter would not have impermissible retroactive effect under Landgraf” and “AEDPA’s new

restrictions on second §2255 motions apply to this case.”

“Conversely, if Hanserd may not file a habeas petition

under §2244, then applying AEDPA’s new restrictions to this
Habeas & Prison Litigation Case Law Update, number 9, November 1997 • a publication of the Federal Judicial Center 3

case to prohibit his second §2255 motion would . . . have

impermissible retroactive effect. . . . When Hanserd filed his

initial §2255 motion, the law would have allowed him to raise

a Bailey claim in a second motion, as discussed above. Under

AEDPA, however, he may not. Applying the new statute would

thus attach a severe new legal consequence to his filing a first

motion: he would have lost his right to challenge his sentence.

. . . Because Congress has not expressed an intent that the new

Act have such a retroactive effect, we could not apply AEDPA

in this way.”

“This analysis leads us to an odd conundrum. Section 2255

explicitly states that federal prisoners may resort to habeas

corpus if, and only if, §2255 relief is inadequate. Our analysis

of the AEDPA under Landgraf leads us to the contrapositive

conclusion: Hanserd may file a new §2255 motion under the

old abuse-of-the-writ standard if, and only if, §2255 bars him

from obtaining relief in district court under §2244. Hanserd

may apply for relief under one, but not both, of these provisions; the question is which one.”

“Fortunately, Congress has provided our answer. In enacting §2255, Congress expressed a clear preference that federal

prisoners use that provision, rather than habeas corpus, to

challenge their confinement, if possible. Hanserd’s single

post-AEDPA attack should therefore be pursued under §2255

unless the new Act requires a different result. As discussed

above, AEDPA’s text, seen through the lens of Landgraf, does

not require a different result. . . . Our holding means that

federal inmates will have one post-AEDPA bite at the apple,

limited further, for prisoners who filed a §2255 motion before

AEDPA’s enactment, by the old abuse-of-the-writ standard. . . .

[A] federal prisoner must satisfy the new requirements of 28

U.S.C. §2255 only if he has filed a previous §2255 motion on

or after April 24, 1996, the date AEDPA was signed into law. As

Hanserd’s previous §2255 motion was filed before that date, he

does not need to meet this new standard.”

“Inmates who wish to file a second or successive motion to

vacate sentence should first file a motion in this court requesting permission under 28 U.S.C. §§2244, 2255, regardless of

when the first motion to vacate sentence was filed. If the

successive motion is proper under AEDPA’s gatekeeping provisions, permission to file a motion in the district court will be

granted, with the statute of limitations tolled while the motion

for permission is before this court. See 28 U.S.C. §2255. If

under the holding of this case permission is not needed

because AEDPA’s gatekeeping provision cannot be applied

pursuant to Landgraf, this court will so indicate and will

transfer the motion to the proper district court pursuant to 28

U.S.C. §1631. Cf. Fed. R. App. P. 22(a). Motions for permission that fall in neither of these categories—i.e., those that

would be barred both under the old and the new law and those

that are barred by a previous motion filed after April 24,

1996—will be denied by order of this court.”

In re Hanserd, 123 F.3d 922, 924–34 (6th Cir. 1997).

Eleventh Circuit applies “pragmatic” test for whether

“new rule of constitutional law” under § 2244(b)(2)(A) “was

previously unavailable.” On April 24, 1997, petitioner sought

permission from the appellate court to file a second or successive habeas corpus petition pursuant to 28 U.S.C.

§2244(b)(2). He contended that, under Cage v. Louisiana, 498

U.S. 39 (1990), which was decided after his capital trial, the

state court’s jury instruction with regard to reasonable doubt

was improper. Under §2244(b)(2)(A), petitioner had to show

that “the claim relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.”

The appellate court held that petitioner did not satisfy that

requirement and it denied the application. “The central issue

in the present case concerns whether the Cage claim Hill seeks

to raise before the district court was ‘previously unavailable’

within the meaning of the AEDPA. In general, we have interpreted the term ‘previously unavailable’ with reference to the

availability of the claim at the time the first federal habeas

application was filed.” Petitioner filed his first federal habeas

petition seven months before the Cage decision.

“As our prior decisions illustrate, however, we have eschewed reliance upon any mechanistic test when assessing

availability. Rather, our precedent establishes that a petitioner

intent upon establishing the ‘unavailability’ of a claim based

upon a new rule of constitutional law may also be required to

demonstrate the infeasibility of amending a habeas petition

that was pending when the new rule was announced. . . . The

pragmatic approach we have adopted properly recognizes that

the liberal amendment policy applicable to habeas petitions

may make claims based upon new rules of constitutional law

‘available’ to the petitioner during a prior habeas action, even

when the claim would not have been available at the inception

of that prior action.”

“Although the Supreme Court had not decided Cage when

Hill instituted his first federal habeas proceeding on April 12,

1990, the decision issued just seven months later. In fact, from

the time the Supreme Court decided Cage, Hill’s habeas

petition remained in the district court for another three and

one-half years. Although the district court continued to invite

further amendment during that time period, Hill never displayed the slightest interest in advancing new claims, whether

pursuant to Cage or any other authority. . . .[D]espite ample

opportunity during the pendency of this first federal habeas

petition, Hill declined to raise his Cage claim until now, the eve

of his scheduled execution. Accordingly, we find that the

circumstances of this case conclusively refute Hill’s contention that his Cage claim was ‘previously unavailable’ within

the meaning 28 U.S.C. §2244(b)(2)(A).”

The court also concluded that petitioner did not satisfy the

requirement that the new rule of constitutional law was made

retroactive “by the Supreme Court.” Although the Eleventh

Circuit ruled in 1994 that Cage should be applied retroactively

to cases on collateral review, “more is required. Specifically, the

applicant must establish that the Supreme Court has made the

new rule of constitutional law retroactively applicable to cases

on collateral review. The application filed by Hill does not

satisfy this requirement.” Accord Bennett v. United States, 119
4 Habeas & Prison Litigation Case Law Update, number 9, November 1997 • a publication of the Federal Judicial Center

F.3d 470, 471 (7th Cir. 1997); In re Vial, 115 F.3d 1192, 1197

(4th Cir. 1997) (en banc).

In re Hill, 113 F.3d 181, 182–84 (11th Cir. 1997) (per

curiam). For a discussion and application of the “factual

predicate” prong of the statute, §2244(b)(2)(B), see In re

Magwood, 113 F.3d 1544 (11th Cir. 1997).

Seventh Circuit holds that voluntarily dismissed petition

may count as prior habeas petition. Assisted by counsel,

petitioner had previously filed a habeas claim that was identical to the current petition “but had voluntarily dismissed it

before the judge determined its merits, though after the judge

had ruled that the petition had enough merit to entitle Felder

to an evidentiary hearing. . . . We must decide whether leave

to file a second petition must be denied by virtue of 28 U.S.C.

§2244(b)(1) . . . , which provides that ‘a claim presented in a

second or successive habeas corpus application under section

2254 . . . that was presented in a prior application shall be

dismissed.’ The claim of ineffective assistance that is the core

of the present petition was presented in the first petition; the

question, one of first impression, is whether the first petition

should be disregarded because there was no decision denying

it, merely a voluntary dismissal by the petitioner.”

In Benton v. Washington, 106 F.3d 162, 164–65 (7th Cir.

1996), the court held that if a first petition was not accepted

(for failure to exhaust state remedies or nonpayment of the

filing fee, for example), then it does not count as a prior habeas

petition for purposes of §2244(b). (See Habeas & Prison

Litigation Case Law Update #6.) “But Benton is equally clear

that dismissal of the first petition need not be on the merits to

make the first petition count; and it gives the example of—a

voluntary dismissal, id. at 164, as in this case. Benton does not,

however, state that any voluntary dismissal of the first petition

makes a subsequent petition second or successive; and the

present case may seem one in which the circumstances of the

voluntary dismissal make it like the cases instanced in Benton

in which the first petition is to be ignored and the second

treated as the first.”

Here, however, “[t]he ground on which Felder moved to

withdraw his petition was that he was unable to submit

affidavits from the eyewitnesses . . . . The motion says that his

lawyer . . . interviewed the two eyewitnesses and on the basis

of the interviews determined that she would be unable to

obtain affidavits from them and ‘furthermore . . . will be unable

to sustain [the petitioner’s] burden of proof at an evidentiary

hearing.’ This is an admission of defeat; and a petitioner for

habeas corpus cannot be permitted to thwart the limitations

on the filing of second or successive motions by withdrawing

his first petition as soon as it becomes evident that the district

court is going to dismiss it on the merits. . . . So Felder’s first

petition, though not dismissed by court action either on the

merits or otherwise, cannot be disregarded. It was a first

petition within the meaning of the rule” and the motion to file

a second petition must be denied.

Felder v. McVicar, 113 F.3d 696, 697–98 (7th Cir. 1997). Cf.

In re Turner, 101 F.3d 1323, 1323–24 (9th Cir. 1996) (petition

that was dismissed without prejudice for failure to exhaust

state remedies does not count as first petition for §2244(b));

Camarano v. Irvin, 98 F.3d 44, 45–46 (2d Cir. 1996) (same).

Certificate of Appealability

Fifth Circuit holds that district court should determine

which issues satisfy the showing required for a COA. In June

1996, the district court granted petitioner a certificate of

probable cause (CPC) to appeal the denial of his habeas claims.

Thereafter, the Fifth Circuit held that the AEDPA’S requirement

for a certificate of appealability (COA) applied to petitioners

who had not received a CPC before April 24, 1996. It also

concluded that the standards for both motions were essentially the same, although a COA must “indicate which specific issue or issues satisfy the showing required.” 28 U.S.C.

§2253(c)(3). Because the district court did not specify which

of petitioner’s claims warranted appellate review, the CPC did

not meet the standards required for a COA and the appellate

court had to “determine whether we should decide ourselves

whether a COA should issue or, instead, should remand to the

district court.”

The court first examined Fed. R. App. P. 22(b), which states

in part that “the district judge who rendered the judgment

shall either issue a certificate of appealability or state the

reasons why such a certificate should not issue. . . . If the

district judge has denied the certificate, the applicant for the

writ may then request issuance of the certificate by a circuit

judge.” The court read this to mean that “[a] district court

must deny the COA before a petitioner can request one from

this court. The rule contemplates that the district court will

make the first judgment whether a COA should issue and on

which issues, and that the circuit court will be informed by the

district court’s determination in its own decisionmaking. . . .

[W]e conclude that when a district court issues a CPC or COA

that does not specify the issue or issues warranting review, as

required by 28 U.S.C. §2253(c)(3), the proper course of

action is to remand to allow the district court to issue a proper

COA, if one is warranted.”

Muniz v. Johnson, 114 F.3d 43, 45–46 (5th Cir. 1997).

Accord Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1076 &

n.18 (6th Cir. 1997) (remanded: “Because the certificate

issued by the district court does not comply with th[e specificity] requirement, we believe it would be improper for us to

examine the merits of Lyon’s petition. . . . If the district court

had denied the certificate, Rule 22 would permit this court to

issue one. The Rule does not, however, give us the authority

to correct a faulty certificate sua sponte.”). See also United

States v. Eyer, 113 F.3d 470, 474 (3d Cir. 1997) (district court’s

failure to specify issues that warranted COA “could lead us

to remand the case for the district court to specify the issues.

But . . . , because there was only one issue before the district

court, the issue it determined warranted the issuance of the

certificate is obvious.”). Cf. Tiedeman v. Benson, 122 F.3d 518,

522 (8th Cir. 1997) (although district court failed to specify

issues warranting COA, appellate court would decide whether

COA should issue because the case “has been fully briefed, and
Habeas & Prison Litigation Case Law Update, number 9, November 1997 • a publication of the Federal Judicial Center 5

we have heard oral argument on all issues . . . . Thus, we are

fully informed about the merits, and it would make no sense

to go through the unnecessary step of remanding . . . .”).

Eleventh Circuit sets forth procedures for handling certificates of appealability and holds that district courts must

rule on COA requests before appellate court. In two §2255

cases before the appellate court, the government moved

“‘[F]or a Limited Remand with Instructions that the District

Court Issue a Certificate of Appealability or State the Reasons

Why Such a Certificate Should Not Issue and For a Stay of this

Appeal.’ The motions are granted.”

“In granting the motions, we decide today that the federal

courts and litigants in this circuit must treat requests for

certificates of appealability (COAs) involving 28 U.S.C. §2254

or 28 U.S.C. §2255 in the same way. To be more specific, we

also prescribe these courses of action to be followed:

(1) District courts must treat notices of appeal filed by

petitioners following a denial of either a section 2254 or a

section 2255 petition as applications for COAs.

(2) District courts must consider and rule upon the propriety of issuing the COA first, that is, before a request for a

COA will be received or acted on by this court or a judge of

this court.”

“Even if today’s procedural instructions are not commanded by [Fed. R. App. P. 22(b)] or [the] statutes, they do

not contradict the Rule and statutes; and we conclude that

these uniform procedures are necessary from the viewpoint

of sound, orderly judicial practice in the circuit. So, we give

the prescriptions pursuant to our supervisory powers.”

Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir.

1997) (per curiam).

PRISON LITIGATION

Proceedings In Forma Pauperis

Seventh Circuit resolves issues regarding three-strikes provision; assessment and collection of filing fees; and application of PLRA to complaints about denial or revocation of

parole. The district court dismissed the plaintiff’s complaint

under 28 U.S.C. §1915(e)(2) for failure to state a claim on

which relief may be granted. The Seventh Circuit found his

appeal to be frivolous and ruled that the complaint and appeal

constituted two strikes under §1915(g). The court of appeals

directed that the district clerk assess and collect filing fees for

both the complaint and appeal. “Our court will docket an

appeal after receiving the notice of appeal . . . but put things

into stasis until receiving notice from the district court that

any necessary fee has been assessed and, if assessed, paid. (By

‘paid’ we mean the initial payment under §1915(b)(1), not the

further progress payments under §1915(b)(2).”

The court disapproved of the conclusion in McGore v.

Wrigglesworth, 114 F.3d 601, 606 (6th Cir. 1997), that, where

a prisoner has the “means” but lacks the “assets” at the time of

filing, the court may assess the partial fee and proceed before

anything has been paid. The court determined that under

§1915(b), the plaintiff owed $8.60 from his prison trust

account as an initial partial filing fee for his complaint and an

additional $8.60 from the account for the appellate fee. “The

statute does not tell us whether the 20 percent-of-income

payment is per case or per prisoner. . . . [W]e hold that the fees

for filing the complaint and appeal cumulate. Otherwise a

prisoner could file multiple suits for the price of one, postponing payment of the fees for later-filed suits until after the end

of imprisonment (and likely avoiding them altogether).”

The court further decided that a district court’s finding of

three strikes may be contested in the appellate court without

partial prepayment under §1915(b). Finally, it held that complaints about denial or revocation of parole are not “a functional continuation of the criminal prosecution” and therefore

are civil actions governed by §1915(a)(2).

Newlin v. Helman, 123 F.3d 429, 432–38 (7th Cir. 1997). Cf.

Duvall v. Miller, 122 F.3d 489, 490 (7th Cir. 1997) (a dismissed

action or appeal that was paid for, rather than filed in forma

pauperis, may qualify as a strike).

Fifth Circuit rules that motion for return of seized property is a civil action under the PLRA. Plaintiff filed a motion

under Fed. R. Crim. P. 41(e) for return of seized property.

Based on the government’s response that the property had

been destroyed, the district court dismissed the suit as moot.

On appeal, the Fifth Circuit held that the motion—whether

construed as being brought under rule 41(e) or as an independent civil suit under 28 U.S.C. §1331—was a civil action

governed by the PLRA. “A motion for the return of seized

property is a suit against the United States for property or

money. As a common sense matter, this is a civil proceeding.

Even when we have applied rule 41(e) to such an action, we

have held that the proceeding is civil in nature.”

Pena v. United States, 122 F.3d 3, 4–5 (5th Cir. 1997). But cf.

In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997) (mandamus

petition that arose out of a §2255 petition for post-conviction

relief is not subject to PLRA’s fee payment requirements).

Fifth Circuit holds that dismissals as frivolous or malicious under §1915(e)(2) should be deemed with prejudice.

The district court dismissed plaintiff’s 42 U.S.C. §1983 claims

without prejudice. An appellate panel modified the dismissals, except for one claim, to be with prejudice. Sitting en banc

to resolve conflicting circuit precedents, the Fifth Circuit

sought “to implement procedures which will aid in the sepa-
6 Habeas & Prison Litigation Case Law Update, number 9, November 1997 • a publication of the Federal Judicial Center

ration of the wheat from the chaff in [prisoner pro se] filings

as early in the judicial process as is possible.” It held that,

unless the district court assigns reasons for dismissing a case

without prejudice, all dismissals as frivolous or malicious

pursuant to §1915(e)(2) will be deemed to be with prejudice.

It further held that in cases “in which the defendant has not

been served and was, therefore, not before the trial court and

is not before the appellate court, the appellate court, notwithstanding, has the authority to change a district court judgment

dismissing the claims without prejudice to one dismissing

with prejudice, even though there is no cross-appeal by the

obviously non-present ‘appellee.’”

Marts v. Hines, 117 F.3d 1504, 1505–06 (5th Cir. 1997) (en

banc) (eight judges dissented from the opinion).

Fourth Circuit declares that filing fee requirement has

impermissible retroactive effect. The district court dismissed

plaintiff’s §1983 complaint as frivolous; his appeal was pending when the PLRA went into effect. The Fourth Circuit

concluded that under Landgraf v. USI Film Prods., 511 U.S. 244

(1994), the filing fee requirement of §1915(b)(1) would have

an impermissible retroactive effect on the appeal. Requiring

plaintiff to pay a filing fee he did not have to pay when he filed

the appeal would “‘impair [a] right [he] possessed when he

acted.’” It also “would ‘impose new duties with respect to

transactions already completed,’ namely filing his appeal.

Landgraf, 511 U.S. at 280.” Even if the provision were considered procedural, Landgraf noted that “some purely procedural

laws and rules may not be appropriately applied retroactively,”

and this is such a case.

Church v. Attorney General of Va., No. 95-7722 (4th Cir.

Sept. 10, 1997) (Ervin, J.).

Remedies for Prison Conditions

Second Circuit holds that termination provision is constitutional if it is interpreted as restricting federal court

jurisdiction rather than annulling consent decrees. Following enactment of the PLRA in April 1996, defendants brought

suit under 18 U.S.C. §3626(b) to terminate consent decrees

entered into during the period 1978–1979 by New York City

and pretrial detainees in city jails. The district court held the

termination provision constitutional and vacated the consent

decrees. Benjamin v. Jacobson, 935 F. Supp. 332 (S.D.N.Y.

1996).

The Second Circuit issued a stay of the district court’s order

pending resolution of the appeal. Its inquiry was complicated

by the fact that the language of the termination provision

could be read in either of two ways. First, it might limit the

jurisdiction of federal courts so that they “could not in the

future enforce past consent decrees, except insofar as the

decrees were found to be tailored to a federal right.” Second,

it might render null and void all past federally approved prison

consent decrees that do not meet the narrowly tailored requirement, “despite the fact that the parties had originally—

and freely—consented to them, presumably in exchange for

some adequate consideration . . . that might even have

amounted to a waiver of some constitutional rights.”

The correct reading of the section lies in the meaning of the

words “termination of prospective relief.” Given the statutory

definition of “prospective relief” as “all relief other than

compensatory monetary damages,” § 3626(g)(7), the term

could be interpreted to include the decrees. But such a reading

“would imply that the word ‘relief,’ without more, includes

within it ‘private settlement agreements.’” To describe a contract or agreement as a form of relief would require a “remarkable twisting of language.” The statutory definition of relief

“should preferably be read to mean that it includes remedies

arising out of or issued pursuant to consent decrees.” In

construing the statutory language, the court must “choose the

interpretation that more readily permits [it] to hold the

termination provision constitutional.”

Although the PLRA takes away federal courts’ discretionary

power to afford more relief through a consent decree than

would be permitted after a litigated judgment, this “does not

infringe upon the power that courts must retain in order to

meet their obligation of forging adequate remedies.” If a court

finds on the record that federal constitutional violations exist

and that the relief is narrowly tailored to remedy those

violations, it can provide such relief pursuant to §3626(b)(3).

Therefore, the termination provision does not unconstitutionally restrict the remedial power of the federal courts, so

long as it is interpreted solely as limiting federal jurisdiction

over the nonfederal aspects of consent decrees. Neither does

the provision unconstitutionally reopen final judgments in

violation of Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

Plaut recognized Pennsylvania v. Wheeling & Belmont Bridge

Co., 59 U.S. (18 How.) 421 (1855), as an exception to its rule

that Congress cannot alter any aspect of a final judgment. The

consent decrees in this case “appear to fall within the possible

Wheeling Bridge exception.” The court did not accept plaintiffdetainees’ argument that the Wheeling Bridge exception did

not apply because of the additional distinction in that case

which allows the legislature to alter executory judgments

involving public rights but not private ones.

The court rejected plaintiffs’ contention that the provision

violates separation of powers by prescribing a rule of decision

in contravention of United States v. Klein, 80 U.S. (13 Wall.)

128 (1871). Unlike the Klein statute, the termination provision does not prevent courts from exercising jurisdiction over

cases involving violation of federal rights. Moreover, it does

not alter preexisting judgments. “It only ensures that federal

claims under those judgments are heard in federal court and

state claims are heard in state court.” The Second Circuit

stressed that, as with the other separation of powers issues, a

serious constitutional problem is avoided only by interpreting

the provision as not annulling the underlying decrees but just

changing the forum in which they can be enforced.

The court applied the rational basis test to plaintiffs’ equal

protection claim. At least one legitimate objective was to avoid

federal court entanglement in prison litigation beyond that

necessary to protect federal rights. The termination provision,

“insofar as it limits the jurisdiction of the federal courts to
Habeas & Prison Litigation Case Law Update, number 9, November 1997 • a publication of the Federal Judicial Center 7

claims founded on an actual violation of a federal right,” is a

rational means to achieve that end. And plaintiffs in this case,

unlike those in Romer v. Evans, 116 S. Ct. 1620 (1996), “cannot

assert that they are entirely shut out of the political process, or

even from judicial protection in state courts.”

The plaintiffs’ due process claims are also without merit,

even assuming that the consent decrees are contracts for due

process purposes. If the PLRA only requires plaintiffs to enforce

their contracts in a different forum, the termination provision

easily survives the heightened scrutiny required by the “sovereign acts” doctrine. Neither have the consent decrees given

plaintiffs “vested rights” in prospective federal court enforcement of the decrees.

Although the Second Circuit affirmed the district court’s

holding that the termination provision survives plaintiffs’

constitutional challenges, it did not agree with the lower

court—or other courts’ decisions—that such a holding requires vacaturs of the consent decrees. In rejecting plaintiffs’

constitutional arguments, the court invoked its saving interpretation that “termination of prospective relief” refers to the

federal remedies arising out of the decrees, not to the decrees

themselves. “Accordingly, the vacatur of the Consent Decrees

is precluded not in spite of, but because of, the constitutionality of the termination provision.” The consent decrees

remain binding on the parties. Section 3626(d) explicitly

states that “[t]he limitations on remedies in this section shall

not apply to relief entered by a State court based solely upon

claims arising under State law.” Thus, state courts may enter

relief arising out of any contract or consent decree, including

federal consent decrees, because the decrees are not only federal court judgments but also contracts arising under state law.

To the extent that states do not enforce the contractual rights

embodied in the decrees, they might unconstitutionally impair the parties’ federal rights, enforceable in federal court.

The court of appeals further observed that the district court

entered its order vacating the decrees on the basis of the

existing record, which was silent regarding whether there are

current or ongoing violations of federal rights. Pursuant to

§3626(b)(3), a court may include supplemental information

in the record when it determines that additional evidence is

necessary for it to make a decision regarding termination of

federal relief. Although plaintiffs might prefer to seek enforcement of the decrees in their entirety in state court, the choice

is theirs, “and should they choose to remain in federal court,

we hold that they are entitled to an evidentiary hearing on

their allegations of current and ongoing violations of federal

rights.” The court declined to lift the stay until the Supreme

Court has acted on any possible certiorari petition. It modified

the stay to permit the parties to invoke state jurisdiction over

the agreements now, “to take immediate effect at such time as

the time for filing a petition for certiorari has lapsed, or such

a petition has been denied, or this Court, or the Supreme

Court, has lifted the above mentioned stay.”

Benjamin v. Jacobson, 124 F.3d 162, 166–69, 171, 174–80

(2d Cir. 1997).

Eighth Circuit rules that termination provision does not

violate separation of powers, equal protection, or due process rights. Three weeks after the PLRA was enacted, the state

filed a motion pursuant to §3626(b) to terminate a consent

decree entered into in the 1980s. The district court denied the

motion to terminate, holding that the termination provision

violated separation of powers by requiring federal courts to

reopen final judgments. It certified its order for interlocutory

appeal. The prisoner–plaintiffs asked the Eighth Circuit to

strike down the termination provision as an unconstitutional

violation of principles of separation of powers, equal protection, and due process.

The court of appeals distinguished the case from Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211 (1995), and Pennsylvania

v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421

(1856). This case does not involve an attempt by Congress to

tinker with results in damage suits that have become final, nor

to amend the law on which the prisoners’ cause of action is

based. “The question we must resolve . . . is whether Congress

may alter the remedial powers of the federal courts so that the

courts may not enforce equitable relief previously awarded in

pending cases.” According to the court, Plaut does not always

protect final judgments from congressional tinkering; instead,

it protects “‘the last word of the judicial department with

regard to a particular case or controversy.’ Plaut, 514 U.S. at

227. In a continuing case, a consent decree is not the ‘last word’

of the courts in the case, even after the decree itself has become

final for purposes of appeal.” The existence of Rule 60(b), as

construed in Rufo v. Inmates of the Suffolk County Jail, 502 U.S.

367 (1992), “makes it unlikely that a court’s approval of a

consent decree constitutes the court’s ‘last word’ on the issue

of what relief is appropriate in perpetuity.” A court’s opinion

on the appropriateness of the remedy set forth in a consent

decree is “a temporal one,” and the appellate court could not

conclude that the Constitution forbids Congress to legislate

on the issue.

The court of appeals refused to apply a strict scrutiny

review to plaintiffs’ equal protection arguments. Their fundamental right of access to the court was not impaired by the

termination provision. “The right to enforce a consent decree

that goes beyond the bounds of constitutional necessity is

not equivalent to the right to bring constitutional grievances

to the attention of the courts.” Because a suspect classification

was not at issue either, rational basis review was appropriate,

and the court found that legitimate government interests

were addressed by the PLRA. Identification of these interests

disposed of the plaintiffs’ further argument, based on Romer

v. Evans, 116 S. Ct. 1620, 1627–29 (1996), that the only

purpose of §3626(b) “is to disempower a politically unpopular group.”

The court also found plaintiffs’ due process claims of no

merit. The doctrine of vested rights was not applicable, since

a judgment that is not final for purposes of separation of

powers also is not final for due process purposes. And,

assuming that §3626(b) substantially impairs prisoners’ con-
Habeas & Prison Litigation Case Law Update, no. 9, Nov. 1997

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One Columbus Circle, N.E.

Washington, DC 20002-8003

tractual rights, it still does not violate due process because the

court found that Congress had legitimate governmental interests in enacting it.

The Eighth Circuit reversed the district court order holding

the termination provision unconstitutional but concluded it

was premature to grant the state’s motion to terminate. It

remanded the case so that the lower court could reach the

question of whether relief remains necessary to correct ongoing violations of federal rights and is narrowly drawn in

accordance with §3626(b)(3).

Gavin v. Branstad, 122 F.3d 1081, 1086–92 (8th Cir. 1997).

But see Taylor v. State, 972 F. Supp. 1239, 1249 (D. Ariz. 1997)

(termination provision is unconstitutional because it reopens

final judgments and does not fall within Wheeling exception).

Suits by Prisoners

Eighth Circuit distinguishes Jensen v. Clarke in ruling that

PLRA applies to attorneys’ fees incurred after passage of the

PLRA. In granting a motion for the award of attorneys’ fees, the

Eighth Circuit held that the PLRA applies to all hours worked

after the date of passage of the Act. “This is not a ‘retroactive’

application of the new law. The situation in Jensen v. Clarke, 94

F.3d 1191, 1202–03 (8th Cir. 1996), was different. There, all

of the hours involved had already been expended. Indeed, the

order of the District Court . . . was entered before the enactment of the PLRA.”

Williams v. Brimeyer, 122 F.3d 1093, 1094 (8th Cir. 1997).

District court rules that it lacks subject matter jurisdiction because of plaintiff’s failure to exhaust administrative

remedies. Plaintiff admitted in his complaint that he did not

continue his action requesting protective segregation through

the prison grievance procedure. He contended that the procedure could provide no “resolution” to the assault he had

suffered and claimed that the assault could not be qualified as

a “prison condition” under 42 U.S.C. §1997e(a). Defendants

moved to dismiss the action because the plaintiff’s failure to

exhaust administrative remedies, as required by §1997e(a),

deprived the court of subject matter jurisdiction.

The court found that the PLRA amended §1997e(a) to make

the exhaustion provisions mandatory. Even if, as the plaintiff

claimed, the department of corrections’ response to his requests was untimely, the plaintiff had to pursue all levels of

administrative procedure before bringing suit. His argument

that he did not have to exhaust remedies because the action

did not involve a prison condition was not sustainable. The

definition of a “civil action with respect to prison conditions”

in 18 U.S.C. §3626g(2), which was part of the PLRA, encompasses the assault he complained of. Plaintiff’s failure to file an

initial grievance deprived the district court of subject matter

jurisdiction.

Morgan v. Arizona Dep’t of Corrections, 967 F. Supp. 1184,

1186–87 (D. Ariz. 1997).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 10, February 1998

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

Habeas Corpus

Second or Successive Petition

Ninth Circuit finds that the AEDPA does not allow a first

habeas petition challenging mental competency to be executed, but holds that such a claim is not prevented by

§2244 in a second or successive petition; Supreme Court

grants certiorari; Fifth Circuit bars second competency

claim, distinguishes Ninth Circuit case. The Ninth Circuit

petitioner had been convicted on two murder counts and

sentenced to death. He filed his first federal habeas petition in

1993, making several claims including that he was not competent to be executed. The district court dismissed the competency claim as premature (the state had not actually issued

a warrant of execution), but granted the writ on other

grounds. The appellate court reversed and ordered the district

court to dismiss the petition, but stated that its decision

should not affect later litigation on the competency issue.

On remand, petitioner tried to reopen the competency

issue. The district court denied the motion, then dismissed the

claim after ruling it could not entertain a competency to be

executed claim under the Antiterrorism and Effective Death

Penalty Act (AEDPA). The appellate court stayed petitioner’s

execution to determine if this is true and, if so, whether this is

an unconstitutional suspension of the writ of habeas corpus.

The court concluded that, because of the nature of competency to be executed claims, such claims are indeed precluded

from being heard under the AEDPA. “[T]he determination of

whether an inmate is competent to be executed cannot be

made before the execution is imminent, i.e., before the warrant of execution is issued by the state. . . . Even if the State had

issued its warrant of execution prior to our consideration of

Martinez-Villareal’s first habeas petition, his competency

claim still would have been premature. In Lonchar v. Thomas,

[116 S. Ct. 1293, 1297 (1996)], the Supreme Court instructed

that ‘if the district court cannot dismiss the [first habeas]

petition on the merits before the scheduled execution, it is

obligated to address the merits and must issue a stay to prevent

the case from becoming moot.’ Once this stay has been issued,

the execution is not imminent, and the competency claim

becomes premature. Accordingly, a competency claim cannot

be asserted in a first habeas petition.”

The court concluded that under the AEDPA, “such a claim

cannot be asserted in a second petition either. . . . A claim that

was presented in a prior petition must be dismissed. 28 U.S.C.

§2244(b)(1). This sanction applies to a competency claim

raised in a first petition even though that claim can never be

adjudicated because it will always be premature. Accordingly,

a petitioner must reserve his colorable competency claim and

present it as a new claim in a second petition. But a claim that

was not presented in a prior petition must be dismissed unless

‘(A) the applicant shows that the claim relies on a new rule of

constitutional law . . . or (B)(i) the factual predicate for the

claim could not have been discovered previously through the

exercise of due diligence; and (ii) the facts underlying the

claim, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense.’ 28 U.S.C. §2244(b)(2).”

“The gateway described in subsection (A) does not apply to

a competency claim because the constitutional right upon

which such a claim is based was announced in 1986. The

gateway described in subsection (B) does not apply because

competency to be executed is not an issue of guilt or innocence. . . . It thus appears that the automatic stay accompanying a first habeas petition and the inapplicable gateways

provided by the AEDPA foreclose any federal review of a death

row inmate’s competency to be executed.”

While the court had been “asked to decide whether this

predicament constitutes an unconstitutional suspension of

the writ of habeas corpus,” it ultimately found that it “need not

decide this difficult constitutional question because we conclude that Martinez-Villareal’s competency claim does not fall

within the rubric of §2244.” The court examined cases that

have held that refiling a prior petition that was dismissed in its

entirety without prejudice for failure to exhaust does not

trigger § 2244 (see case summaries below for examples).

Although this is “a situation in which there has been a federal

decision on all but one of Martinez-Villareal’s constitutional

claims . . . , the rationale underlying [the other decisions]

applies with equal force to Martinez-Villareal’s competency

claim. Just as we must dismiss petitions containing

unexhausted claims, we must dismiss a competency claim

raised in a first petition because it will always be premature.

Just as we dismiss unexhausted claims to permit state courts

to pass first judgment on those claims, we dismiss a competency claim so that the state court may have the first opportunity to consider that claim once a warrant of execution has

issued. And just as we permit an exhausted petition to be heard

in federal court even after it had been dismissed previously as
2 Habeas & Prison Litigation Case Law Update, number 10, February 1998• a publication of the Federal Judicial Center

unexhausted, so too should we permit a ripe competency

claim to be heard in federal court even after it had been

dismissed previously as premature.”

“Under our holding, a competency claim must be raised in

a first habeas petition, whereupon it also must be dismissed as

premature due to the automatic stay that issues when a first

petition is filed. Once the state issues a second warrant of

execution and the state court considers the now-ripe competency claim, a federal court may hear that claim—and only

that claim—because it was originally dismissed as premature

and therefore falls outside of the rubric of ‘second or successive’ petitions.” The court stressed that its holding “is a narrow

one that is inherently limited by the unique nature of a

competency claim.” It remanded the case to the district court

to hear petitioner’s competency claim.

The Supreme Court granted certiorari in this case on Oct.

14, 1997. Questions presented: “(1) Did Congress intend

limitations of AEDPA on second or successive petitions to

apply to all claims and in every court, including competencyfor-execution claims and applications for ‘original’ Supreme

Court habeas corpus writs? (2) Would applying act to prevent

consideration of claim of incompetency for execution, which

is raised in second or successive habeas corpus petition,

constitute violation of Suspension Clause? (3) By what means

can this court review these issues?”

Martinez-Villareal v. Stewart, 118 F.3d 628, 630–34 (9th

Cir. 1997) (per curiam), cert. granted, 118 S. Ct. 294 (1997).

In the Fifth Circuit, the death row inmate had originally

filed for federal habeas relief in 1992, but did not raise a

competency to be executed claim at that time. Although the

district court granted relief, the appellate court reversed and

the Supreme Court later denied certiorari. In June 1997, after

an unsuccessful round in the state courts on the competency

issue, the inmate moved under §2244(b) for permission to file

a successive habeas application, this time challenging his

competency to be executed pursuant to Ford v. Wainwright,

477 U.S. 399 (1986). Because the competency claim was being

presented for the first time in federal court, he had to meet the

requirements of §2244(b)(2) (applicable to claims not presented in a prior application).

The court first looked to the two circuit decisions that

“appear to have considered the applicability of §2244(b) to

Ford claims. In In re Medina, 109 F.3d 1556 (11th Cir. 1997),

the Eleventh Circuit denied leave to file a second habeas

application, explaining that the movant could not satisfy

§2244(b)(2)(A), because Ford is not a new rule of constitutional law, and that he could not satisfy §2244(b)(2)(B),

because the factual predicate for the claim had nothing to do

with his guilt or innocence of the underlying offense. Id. at

1564–65. The court decided that, ‘although the provisions of

§2244(b), as amended, operate to foreclose review of competency to be executed claims in second habeas applications,’ . . .

the provisions of §2244(b) do not restrict the Supreme Court’s

original habeas authority to consider competency claims, . . .

and federal review may also be obtained through certiorari

review of the state court competency proceedings. 109 F.3d at

1564.”

As for the Ninth Circuit decision in Martinez-Villareal, the

court emphasized that it was distinguishable because “the

movant had presented a Ford claim in his first habeas application. . . . [T]he Ninth Circuit decided that §2244 does not

apply to a Ford claim that has been dismissed as premature in

a first habeas application. . . . Were we to adopt the rule of

Martinez, it would not help Davis. Unlike the movant there,

whose Ford claim was presented in his first federal habeas

application and dismissed as premature, Davis did not present

a Ford claim in his first federal application. Instead, as discussed supra, he seeks to present his Ford claim for the first

time in a second habeas application. Likewise, because this is

a second application, Davis would not be helped even were we

to extend In re Gasery, 116 F.3d 1051 (5th Cir. 1997) (habeas

application refiled after dismissal without prejudice for failure

to exhaust state remedies is neither second nor successive), to

Ford claims sought to be reasserted after dismissal without

prejudice as premature when presented in a first, not—as

here—second, habeas application.”

Thus, petitioner had to satisfy the gatekeeping provisions

of § 2244(b)(2). He “concede[d] that he cannot satisfy

§ 2244(b)(2)(B) (concerning guilt),” and the court concluded

that he could not satisfy subsection (A), either, because the

“legal basis of Davis’ claim,” the decision in Ford, “has been

available since at least 1986” and cannot be considered “previously unavailable.” And, agreeing with Medina, the court

rejected defendant’s claim that §2244(b) violates the Suspension Clause by precluding consideration by a federal court of

a mature Ford claim presented for the first time. “[T]he

relevant provisions of AEDPA do not foreclose such review. A

federal court determination of the issue can be sought through

Supreme Court review of the state court competency proceedings. . . . Alternatively, the claim can be raised in an original

habeas application to the Supreme Court.”

In re Davis, 121 F.3d 952, 953–56 (5th Cir. 1997).

Third and Fifth Circuits hold that refiling of petition that

was previously dismissed for failure to exhaust state remedies is not a second or successive petition. In the Third

Circuit, the district court granted petitioner a stay of execution and held his federal habeas petition in abeyance to allow

petitioner to exhaust one particular issue in state court. The

state appealed, arguing that the court had no authority to hold

the petition in abeyance. The appellate court remanded with

instructions to dismiss the petition, holding that, in the

absence of urgent circumstances, the petition should not have

been held in abeyance but dismissed for lack of exhaustion.

The court then noted that the pending dismissal “raises a

question of whether any subsequent habeas filings on

Christy’s behalf will be considered ‘successive’ and whether,

pursuant to the dictates of the Antiterrorism and Effective

Death Penalty Act of 1996, . . . Christy would be required to

seek authorization from the court to file a petition for habeas

corpus. We hold that when a prior petition has been dismissed
Habeas & Prison Litigation Case Law Update, number 10, February 1998 • a publication of the Federal Judicial Center 3

without prejudice for failure to exhaust state remedies, no

such authorization is necessary and the petitioner may file his

petition in the district court as if it were the first such filing.”

As amended by the AEDPA, 28 U.S.C. § 2244(b)(3)(E)

forbids a “second or successive” petition for collateral relief

without the consent of the court of appeals, and

§ 2244(b)(3)(C) “instructs courts of appeals to grant this

authorization only if the applicant makes a prima facie showing that the application satisfies the requirements for second

or successive applications. . . . While the AEDPA requires this

procedure for second or successive applications, it does not

define what is meant by ‘second’ or ‘successive.’” The court

reasoned that, before the AEDPA, “a petition filed after a

previously submitted petition was dismissed without prejudice was not considered an abuse of the writ. . . . The problems

that the abuse of the writ doctrine seeks to avoid are not

implicated when a petition is filed after a prior petition is

dismissed for lack of exhaustion. . . . Such a dismissal serves

the interests of finality by discouraging piecemeal litigation.

. . . Additionally, encouraging exhaustion promotes harmony

between the federal and state judicial systems by giving the

state courts the first opportunity to review state convictions

and to correct constitutional errors.”

Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997). See also

summaries of Camarano in Habeas & Prison Litig. Update #6,

Felder in Habeas & Prison Litig. Update #9. Cf. Reeves v. Little,

120 F.3d 1136, 1138–39 (10th Cir. 1997) (agreeing that preAEDPA abuse of the writ doctrine is appropriate standard for

deciding whether petition is second or successive; holding

that petitioner’s situation, where his earlier petition had been

dismissed without prejudice within context of larger class

action claim, “is analogous to that where prior petitions were

dismissed for failure to exhaust,” and thus his current petition

should be considered his first).

The Fifth Circuit petitioner’s first habeas petition had been

dismissed without prejudice for failure to exhaust all state

remedies. The appellate court also looked to pre-AEDPA law,

finding that “we consistently concluded that petitions that

were refiled after dismissal for failure to exhaust state remedies

were not ‘second or successive’ petitions” for purposes of Rule

9(b) of the Rules Governing Section 2254 Cases. Noting that

other circuits have reached the same conclusion under AEDPA,

the court agreed and held that petitioner’s “refiled petition is

merely a continuation of his first collateral attack, not a

‘second or successive’ petition within the meaning of

§ 2244(b).” Thus, petitioner’s motion was denied as unnecessary and he may file his petition in the district court.

In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997) (per

curiam). Accord McWilliams v. Colorado, 121 F.3d 573, 575

(10th Cir. 1997) (“habeas petition filed after a prior petition

is dismissed without prejudice for failure to exhaust state

remedies does not qualify as a ‘second or successive’ application within the meaning of § 2244(b)(1). . . . Rather, it is

simply a continuation of the earlier petition.”); Dickinson v.

Maine, 101 F.3d 791, 791 (1st Cir. 1996) (per curiam); Flores

v. United States, No. 97-8080 (8th Cir. Aug. 26, 1997) (per

curiam) (unpublished) (“habeas petition which is filed after a

prior petition has been dismissed without prejudice does not

qualify as ‘second or successive’ habeas application within the

meaning of §§ 2255 and 2244(b)”).

Evidentiary Hearing

Third and Ninth Circuits conclude that a habeas applicant

has not “failed to develop the factual basis of a claim” under

§2254(e)(2) if the applicant was not able to do so. In the

Third Circuit case, petitioner’s first state trial was interrupted

by the sudden death of a family member of the judge. The

judge declared a mistrial and, in the resulting haste and

confusion, petitioner was not afforded an opportunity to

develop a claim of double jeopardy. He was convicted at a

second trial and appealed, but was also unable to develop the

double jeopardy claim in post-conviction proceedings because of state procedural laws governing what issues may be

argued on appeal. After he filed a federal petition for a writ of

habeas corpus on double jeopardy grounds, the district court

held an evidentiary hearing and granted the petition.

Because the habeas petition was filed in 1995, the appellate

court concluded that AEDPA should not be applied to the

present action. However, “if we were to give retroactive effect

to the 1996 amendments to §2254, we would not conclude

that the district court erred in conducting an evidentiary

hearing. Section 2254(e)(2) applies to applicants who ‘failed

to develop the factual basis of a claim in State court proceedings.’ In this case, Love did not ‘fail’ to develop the basis of his

claim . . . [because] factors other than the defendant’s action

prevented a factual record from being developed.”

Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997). Accord

Burris v. Parke, 116 F.3d 256, 258–59 (7th Cir. 1997)

(§ 2254(e)(2) did not apply where state refused to hear

petitioner’s claim: “the word ‘fail’ cannot bear a strict-liability

reading, under which a federal court would disregard the

reason for the shortcomings of the record. If it did, then a state

could insulate its decisions from collateral attack in federal

court by refusing to grant evidentiary hearings in its own

courts. Nothing in §2254(e) or the rest of the AEDPA implies

that states may manipulate things in this manner.”).

The Ninth Circuit petitioner had been denied an evidentiary hearing in the state courts, and the district court denied

petitioner’s habeas application on respondent’s motion for

summary judgment without holding a hearing. Because the

original habeas petition was filed before the effective date of

the AEDPA, the appellate court used pre-AEDPA law to rule that

the district court should have held an evidentiary hearing on

one of petitioner’s claims. However, because this decision was

reached before Lindh v. Murphy, 117 S. Ct. 2059 (1997), the

court also analyzed whether a hearing would still be required

if the AEDPA applied.

“Application of the AEDPA in this case would neither affect

the appropriateness of an evidentiary hearing before the
4 Habeas & Prison Litigation Case Law Update, number 10, February 1998• a publication of the Federal Judicial Center

district court nor preclude habeas relief on the merits of Jones’s

claims. As amended . . . , 28 U.S.C. § 2254 provides that a

district court shall not hold an evidentiary hearing ‘[i]f the

applicant has failed to develop the factual basis of [the] claim

in State court proceedings.’ 28 U.S.C. §2254(e)(2). It is clear

that Jones did not ‘fail[ ] to develop’ the factual basis of either

of his claims; rather, the state courts denied him the opportunity to develop the facts by failing to hold an evidentiary

hearing. Where, as here, the state courts simply fail to conduct

an evidentiary hearing, the AEDPA does not preclude a federal

evidentiary hearing on otherwise exhausted habeas claims.

The facts developed in the course of the evidentiary hearing,

in turn, would enable the district court to determine whether

Jones qualifies for habeas relief under the AEDPA on the ground

that the state courts’ denial of his petition was contrary to

clearly established law as announced by the Supreme Court

. . . . Finally, the district court’s duty to ascertain the sufficiency of the evidence by engaging in a thorough review of the

complete state court record is unaffected by the AEDPA. Without such a review of the record, it is impossible to determine

whether the state court adjudication rested on an ‘unreasonable application’ of clearly established federal law or an

‘unreasonable determination’ of fact.”

Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997).

Certificate of Appealability

Fifth Circuit holds that appellate review of habeas denial is

limited to issue(s) specified in the certificate of appealability

(COA). “Under the AEDPA, a district court has the authority to

issue a COA. . . . The district court in this case limited Lackey’s

COA to the issue of whether defense counsel provided Lackey

ineffective assistance of counsel . . . . On appeal, Lackey raises

eight other claims, some of which were rejected by the district

court, others which are raised for the first time on appeal. We

have yet to address the question of whether a three-judge

panel like this one must reach the eight issues that were not

specified in the COA.”

“A plain reading of the AEDPA compels the conclusion that

COAs are granted on an issue-by-issue basis, thereby limiting

appellate review to those issues alone. Section 2253(c)(3)

states: ‘The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the showing

required by paragraph (2).’ (Emphasis added.) . . . [I]f we were

to conclude that § 2253(c)(3) of the AEDPA requires issue

specification, yet hold that granting a COA brings up all issues

raised before the district or circuit judge who issued the COA,

we would render meaningless the specification language in

§ 2253(c)(3).”

“In this appeal, Lackey (in addition to the issue specified in

the COA) raises issues that were either rejected by the district

court or raised for the first time in this court. We decline to

address those issues rejected by the district court because they

are outside the ambit of the COA. A contrary conclusion would

risk inconsistent adjudication . . . . And we decline to address

those claims that Lackey has raised for the first time on appeal

because those issues are deemed waived.” Finding no error by

the district court on the one appealable issue, the court

affirmed the denial of habeas relief.

Lackey v. Johnson, 116 F.3d 149, 151–52 (5th Cir. 1997). See

also United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.

1997) (remanded: extending to § 2255 case the rule of Muniz

v. Johnson, 114 F.3d 43, 45–46 (5th Cir. 1997) [Habeas &

Prison Litig. Update #9], a §2254 case that held district court

must rule on motion for COA before petitioner can request one

from appellate court, and “that when a district court issues a

CPC or COA that does not specify the issue or issues warranting

review, as required by 28 U.S.C. § 2253(c)(3), the proper

course of action is to remand to allow the district court to issue

a proper COA, if one is warranted”; here, district court only

granted leave to appeal in forma pauperis, which is not

equivalent to granting COA—“We therefore remand the case

to the district court for the limited purpose of considering

whether COA should issue.”).

Eighth Circuit holds that claim “presented” in first petition but not ruled on cannot be raised in second petition. In

petitioner’s first habeas action he raised two issues. The

district court granted relief on one claim, but did not rule on

the second claim concerning due process. The state appealed,

and the Eighth Circuit reversed the grant of habeas corpus; the

due process claim was not argued on appeal. Petitioner then

filed a second habeas petition that reasserted the due process

claim. The district court dimissed for lack of jurisdiction, and

petitioner moved under §2244(b) for authorization from the

appellate court to file a second petition. The appellate court

denied the motion.

“Because Wainwright presented the same claim in his first

habeas proceeding, § 2244(b)(1) prevents him from raising

the claim again in a second habeas petition. . . . The amended

statute provides, ‘A claim presented in a second or successive

habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.’ . . . Wainwright’s due process claim falls within the plain language of

§2244(b)(1). The amended statute precludes any claim ‘presented’ in the first action, rather than ‘adjudicated’ ‘on the

merits’ in the first action, as the pre-Act version of §2244(b)

provided. . . . Wainwright presented the due process claim to

the district court in the first habeas proceeding. In addition,

the petition [he] seeks to file is a second or successive petition

within the meaning of the Act. It raises claims concerning the

same conviction that his earlier petition addressed, . . . and

Wainwright’s first habeas petition was not dismissed without

prejudice for failure to exhaust state remedies.”

“Wainwright blames the district court and this court for

overlooking the due process issue in his first habeas proceeding, and states our refusal to permit consideration of the issue

now ‘will send Wainwright to his death based on a judicial

oversight that was not even of his own making or that of his

lawyers.’ Wainwright is pointing an accusatory finger in the

wrong direction. Although Wainwright argued the issue in

post-trial briefs, the district court did not decide the issue
Habeas & Prison Litigation Case Law Update, number 10, February 1998 • a publication of the Federal Judicial Center 5

because the court granted Wainwright the relief he sought on

another ground. In this circumstance, a familiar rule of trial

practice places on Wainwright’s shoulders the responsibility

to obtain a ruling on any issue left unaddressed by the district

court. Wainwright should have pressed the district court for a

ruling on the due process issue, paving the way for our review

in his first habeas appeal. We thus reject the kind of piecemeal

habeas litigation Wainwright advocates.”

The court also noted that, in his first habeas appeal,

Prison Litigation

Proceedings In Forma Pauperis

Fifth Circuit holds that filing fee requirements do not deny

prisoners constitutionally guaranteed access to courts. After

assessing a partial filing fee as required by 28 U.S.C. §1915(b),

the district court dismissed plaintiff’s 42 U.S.C. §1983 complaint as frivolous. Plaintiff did not challenge the filing fee

assessment and paid the fee imposed. The district court made

no explicit findings regarding the constitutionality of the

Prison Litigation Reform Act fee provisions. The Fifth Circuit

granted appellant’s in forma pauperis motion and assessed a

partial filing fee pursuant to the PLRA. Appellant asserted that

the fee provisions deny prisoners constitutionally guaranteed

access to the courts.

Considering the question under both plain error and de

novo standards, the court of appeals held that the Act’s fee

requirements “do not hinder prisoners’ abilities to prepare or

transmit their cases or appeals to court.” The provisions

change the terms of IFP litigation by “requiring indigent

prisoners for the first time to make the same prudential

decisions about the merits of their lawsuits that everyone else

makes before filing,” but this does not restrict their access any

more than non-IFP litigants are restricted by the filing fee.

Moreover, the savings provision of §1915(b)(4), which states

that no prisoner will be barred from court because he or she

does not have the means to pay the initial partial filing fee,

“sufficiently guarantees that all prisoners will have access to

the courts, regardless of their income.”

Norton v. Dimazana, 122 F.3d 286, 290–91 (5th Cir. 1997).

Accord Shabazz v. Parsons, 127 F.3d 1246, 1248–49 (10th Cir.

1997).

Ninth Circuit holds that actions dismissed before the

PLRA’s effective date count as strikes under §1915(g). Before

the plaintiff filed two 42 U.S.C. §1983 complaints in November 1996, he had brought six other actions that were dismissed

as frivolous or for failure to state a claim. Four of those cases

were dismissed before the effective date of 28 U.S.C. §1915(g),

which prohibits prisoners from bringing civil actions or appeals IFP “if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility,” filed actions

that were dismissed as frivolous, malicious, or for failure to

state a claim, unless the prisoner is imminently threatened

with serious physical injury. The district court dismissed both

of the plaintiff’s suits on the ground that §1915(g) applies to

cases dismissed before enactment of the statute and therefore

barred him from proceeding IFP.

The Ninth Circuit affirmed the lower court decision. “To

interpret the statute as only applying to actions commenced

after April 26, 1996, the effective date of the PLRA, would give

every prisoner, regardless of the number of prior frivolous

suits, three more opportunities to pursue frivolous actions—

without paying any filing fees. . . . [S]uch an interpretation

would frustrate, rather than advance, the congressional goal of

reducing frivolous prisoner litigation in federal court.” There

is no retroactivity problem because the statute “does not

impair any substantive rights of prisoners, but merely affects

their ability to proceed in forma pauperis.”

Tierney v. Kupers, 128 F.3d 1310, 1311–12 (9th Cir. 1997).

Accord Keener v. Pennsylvania Bd. of Probation & Parole, 128

F.3d 143, 144–45 (3d Cir. 1997) (per curiam) (“dismissals for

frivolousness prior to the passage of the PLRA are included”).

Eighth Circuit rules that prisoner-appellant may seek IFP

status on appeal pursuant to Rule 24(a) even though district

court certifies appeal “is not taken in good faith” under

§1915(a)(3). The district court summarily dismissed

plaintiff’s complaint as frivolous and certified under 28 U.S.C.

§1915(a)(3) that any appeal would not be in good faith.

Plaintiff persisted in his appeal. The Eighth Circuit rejected

the reasoning of McGore v. Wrigglesworth, 114 F.3d 601, 610–

11 (6th Cir. 1997), which held that the introductory clauses of

§ 1915(a)(1) and (b)(1) excluded from the prisoner appeal

process the good faith certification provision of §1915(a)(3).

Instead, the court cited approvingly the decision in Baugh v.

Taylor, 117 F.3d 197, 199 (5th Cir. 1997), which used Fed. R.

App. P. 24(a) to reconcile the coexistence of § 1915’s three

subsections. The court held that “civil action prisoner-appellants who have been denied the right to proceed on appeal in

forma pauperis by the district court because the district court

has certified under §1915(a)(3) that the appeal would not be

taken in good faith, may still, by separate motion filed with this

court pursuant to . . . Rule 24(a), seek to proceed in this court

under the provisions of §1915.”

petitioner could have raised the due process claim as an

alternative ground for affirmance but failed to do so. Finally,

the court stated that its decision has “not effectively den[ied]

Wainwright federal habeas review of his due process claim.

Wainwright had his opportunity to seek adjudication of the

claim in the first habeas proceeding, but did not pursue a

decision on the merits.”

Wainwright v. Norris, 121 F.3d 339, 340–41 (8th Cir. 1997)

(per curiam).
6 Habeas & Prison Litigation Case Law Update, number 10, February 1998• a publication of the Federal Judicial Center

The filing of such a motion in the court of appeals triggers

appellant’s responsibility to pay the full filing fee in installments under §1915(b), “unless the appellant must pay the full

amount up front in cash because he has acquired the requisite

‘three strikes’ under §1915(g).” The Eighth Circuit also concluded that once the appellate filing fee is assessed by the

district court, the court of appeals may consider the merits of

the appeal, even though calculation and collection of the fee

may occur long after the case is disposed of. The appellate

court directed the district court to follow specific procedures

in assessing and calculating the appellate filing fee, including

setting an initial partial fee of $35 “or such other reasonable

amount warranted by available information” whenever the

lower court does not receive a certified copy of a prisoner’s

prison account within 30 days of notice of appeal. The court

affirmed the district court’s ruling that the appeal was frivolous and notified appellant that the dispositions of both his

complaint and appeal counted as “strikes” under §1915(g).

Henderson v. Norris, 129 F.3d 481, 484–85 (8th Cir. 1997)

(per curiam) (Arnold, J., dissented from the portion of the

opinion “regulating the district court’s handling of cases under

the PLRA”). See also Wooten v. District of Columbia Metro. Police

Dep’t, 129 F.3d 206, 207–08 (D.C. Cir. 1997).

Eighth Circuit rules that plaintiff must show that filing

fee provision, §1915(g), caused actual injury to have standing to challenge its constitutionality. The district court

initially denied plaintiff’s request for IFP status because he had

at least three strikes under 28 U.S.C. § 1915(g) and was not in

“imminent danger of serious physical injury,” as required in

order to be exempt from the statutory prohibition on IFP

filings. Upon reconsideration, the district court ruled that

§ 1915(g) burdened the plaintiff’s fundamental right to court

access. Under strict scrutiny, the lower court found “that the

provision was not narrowly tailored to prevent abusive prisoner litigation since it only curbs repeat litigation by prisoners

who can not afford the filing fee and does not take into account

the varying sentences and circumstances of different prisoners.”

The defendants’ request for interlocutory review by the

court of appeals was granted. The Eighth Circuit emphasized

that “it is not sufficient for standing to show that court access

could be impeded [by §1915(g)]. Rather, a prisoner must

show that it actually has been.” The plaintiff had not made

such a showing. The record revealed that he had sufficient

funds to pay the filing fee, and payment would not force him

to go without basic necessities. The plaintiff “is thus free to

pursue his action if he pays the required fees, and section

1915(g) has not caused an actual injury to him because he was

not without the necessary resources to bring his claim to

court.” Since he had not shown an actual injury, plaintiff

lacked standing to raise his constitutional claims in the district

court; the interlocutory appeal was dismissed and the case was

remanded to the district court.

Lyon v. Krol, 127 F.3d 763, 764–65 (8th Cir. 1997) (Heaney,

J., dissented).

District court concludes that Anderson v. Singletary does

not excuse all indigent habeas litigants from filing fees. A

prisoner appealed the district court’s denial of his § 2255

motion. While his appeal was pending, he sought a refund of

the $105 appellate filing fee that he had paid, contending that

Anderson v. Singletary, 111 F.3d 801 (11th Cir. 1997) [Habeas

& Prison Litig. Update #7], held that such fees do not apply

to habeas litigants. Noting that 28 U.S.C. § 1915 “is merely a

fee-processing statute,” the district court said the Eleventh

Circuit did not acknowledge the logical inconsistency of the

appellant’s position in Anderson that “because the fee-processing statute did not apply to him, he somehow was excused

from the application of the fee-prescription statutes like

§§1913 and 1917.” Moreover, the court of appeals never

answered the question of whether appellate docket and filing

fees in fact are inapplicable to habeas appellants.

The district court summed up what Anderson, and several

opinions from circuits concurring in the Anderson approach,

seemed to have concluded: (1) an indigent prisoner who files

a habeas action or appeal may do so “without prepayment of

fees or security therefor” under § 1915(a)(1); (2) habeas

cases are not civil actions within the meaning of § 1915(b)(1);

(3) therefore, district courts should apply § 1915(a)(1) to

habeas litigants who are prisoners just as they would to

nonprisoners, “with an eye toward waiving filing fees if the

prisoner otherwise satisfies that section’s indigency requirement and §1915(a)(3)’s ‘good faith’ bar. Conversely, courts

should not apply §§ 1915(a)(2) & (b) to such litigants.”

On the surface, the court stated, its conclusion that

§ 1915(a)(1) applies to imprisoned habeas litigants conflicts

with the Anderson holding “‘that the filing fee requirements of

section 804(a) of the PLRA do not apply in 28 U.S.C. §2254 or

28 U.S.C. § 2255 proceedings.’” 111 F.3d at 806. But the

appellate panel “painted with too broad a brush, and . . . must

have intended [that] . . . §1915(a)(1) applies to habeas cases,

but not §§1915(a)(2) & (b).” Henceforth, the district court

would assess and collect docket and filing fees from habeas

appellants and evaluate their IFP motions only under

§ 1915(a)(1), “subject to the ‘good faith’ limitation imposed

by § 1915(a)(3), as well as the dismissal criteria set forth in

§ 1915(e)(2), but not the ‘three-strikes’ limit contained in

§ 1915(g).” The appellant’s financial wherewithal would be

evaluated according to pre-PLRA practice on a case-by-case

basis. In the case before the court, the appellant was not

entitled to a refund of the filing fee.

United States v. Bazemore, 973 F. Supp. 1475, 1478–80 (S.D.

Ga. 1997).

Remedies for Prison Conditions

First Circuit holds termination provisions constitutional

and terminates, but refuses to vacate, consent decree. Pursuant to the termination provisions of the PLRA [18 U.S.C.

§3626], defendants moved to terminate all prospective relief

provided by a 1979 consent decree and to vacate the decree

outright. Plaintiff class—present and future pretrial detainees
Habeas & Prison Litigation Case Law Update, number 10, February 1998 • a publication of the Federal Judicial Center 7

held or to be held in the Suffolk County jail—challenged the

Act on constitutional grounds. The district court upheld the

constitutionality of the termination provisions and granted

termination of prospective relief “to the extent that the consent decree would ‘no longer be enforced by an order of

specific performance.’” But the court declined to vacate the

decree or to terminate obligations stated in the decree which

“represented ‘consensual undertakings of the defendants with

court approval.’” Inmates of Suffolk County Jail v. Sheriff of

Suffolk County, 952 F. Supp. 869, 883 (D. Mass. 1997). All

parties appealed.

The First Circuit found that the PLRA conflates “relief” and

“consent decree” by describing a consent decree “as a form of

relief rather than as a judgment that engenders relief.” This

equation of the terms “contradicts conventional understandings and . . . requires that commonplace legal terms be used in

curious ways.” Because of the uncertainty caused by this

usage, the court of appeals reviewed the legislative history of

the Act and was persuaded that the statute should be interpreted as directing the termination of consent decrees outright. The history “strongly suggests that the PLRA’s sponsors

wanted to truncate the federal judiciary’s involvement in

prison administration.” The congruence between the statute’s

text and Congress’s “easily discerned intent” led the court to

conclude that “Congress meant precisely what it said—however deviant from ordinary usage that may be . . . . We are

therefore duty bound to interpret the PLRA as mandating the

termination of extant consent decrees altogether unless the

district court makes the specific findings that are necessary to

keep a particular decree alive.”

Turning to constitutional issues, the First Circuit held that

the PLRA provisions do not violate separation of powers by

reopening final judgments or prescribing a rule of decision

upon the court. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995), and Pennsylvania v. Wheeling & Belmont Bridge Co., 59

U.S. (18 How.) 421 (1855), “read together, teach that equity

requires, and the separation of powers principle permits,

legislatures to direct that courts respond to changes in substantive law by revisiting forward-looking injunctions.” Furthermore, the relevant underlying law in this case is not the

Eighth Amendment, as plaintiffs contend, but the law relating

to “the district court’s authority to issue and maintain prospective relief absent a violation of a federal right . . . . Given this

shift in the relevant underlying law, the termination of prospective relief pursuant to the PLRA does not amount to a

legislative reopening of a final judgment.” Plaintiffs’ argument

that the termination provisions violate United States v. Klein,

80 U.S. (13 Wall.) 128 (1871), by imposing a rule of decision

on the courts while the underlying law remains constant, is

invalid. The underlying law is not the Eighth Amendment, as

already noted. The PLRA affects only a federal court’s power to

grant prospective relief where there is no violation of a federal

right. Courts retain their power to interpret and apply the law

to the facts without legislative interference.

Due process rights are not violated by the PLRA, either.

Plaintiffs are not deprived of vested rights because “frankly

modifiable decrees” cannot create such rights. Plaintiffs’ objection that the consent decree is a contract that the PLRA

unconstitutionally impairs is equally unavailing. Where the

contract is private and the impairing statute is federal, there is

a presumption of constitutionality and the legislation must

meet only a rational basis test. The PLRA is not subject to

heightened scrutiny, as the plaintiffs argue, because the federal

government is not a constructive party to the consent decree.

The “practical, commonsense linkage” between the termination provisions and the changed circumstance of the district

court’s diminished authority to grant or enforce prospective

relief survives rational basis review.

Regarding equal protection, the PLRA does not breach

fundamental rights of pretrial detainees who enjoy both the

presumption of innocence and the right not to be punished

prematurely. The Act does not permit relief where no fundamental right (and therefore no federally secured right) is

violated. In the absence of such a violation, the court’s inability

to provide prospective relief does not infringe pretrial detainees’ right to be free from punishment. Neither does the Act

abridge plaintiffs’ fundamental right of access to the court. The

court also rejected plaintiffs’ contention based on Romer v.

Evans, 116 S. Ct. 1620, 1628 (1996), that the PLRA violates

equal protection by singling out “a certain class of citizens for

disfavored legal status or general hardship[].” With no fundamental right or suspect class at issue—and despite the plaintiffs’ assertion that an “anti-inmate animus” underlay passage

of the Act—the law easily meets the rational basis test.

The court of appeals did not accept the plaintiffs’ further

argument that even if the PLRA is constitutional, the consent

decree should remain operable because (1) the district court

previously made findings that satisfy the criteria set out in

§ 3626(b)(2), or (2) if those findings are inadequate, the court

“should have conducted an inquiry into whether a violation of

a federal right exists currently (or probably will come into

existence if the strictures of the consent decree are lifted)

before implementing the PLRA’s termination provision.” The

appellate court found no reason to declare clearly erroneous

the district court’s assessment of the existing factual findings.

With regard to present conditions, the court of appeals deferred to the lower court’s “intimate familiarity with this

protracted litigation and to its informed evaluation of current

prison conditions” and saw no obligation imposed on the trial

court “to make a predictive inquiry into future conditions

before terminating an existing consent decree.”

Although the First Circuit concluded that the PLRA mandates termination of the decree, it agreed with the district

court that an order actually vacating the decree is not required.

Congress used the verb “terminate,” rather than “vacate,” and

the distinction between the two words may have practical

significance: “While terminating a consent decree strips it of

future potency, the decree’s past puissance is preserved and

certain of its collateral effects may endure. Vacating a consent

decree, however, wipes the slate clean, . . . indeed, casting a

shadow on past actions taken under the decree’s imprimatur.”

The PLRA does not require vacating a consent decree when
Habeas & Prison Litigation Case Law Update, no. 10, Feb. 1998

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prospective relief is terminated. The court of appeals affirmed

the district court judgment finding the PLRA to be constitutional, terminating all prospective relief under the decree, and

refusing to vacate the decree. It directed that the judgment be

revised to terminate the consent decree itself.

Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 652–63

(1st Cir. 1997). See also Dougan v. Singletary, 129 F.3d 1424,

1426–27 (11th Cir. 1997) (per curiam) (holding §3626(b)(2)

constitutional, vacating district court’s denial of motion to

terminate consent decree, and remanding for further proceedings consistent with opinion and PLRA).

Suits by Prisoners

Tenth Circuit rules that PLRA does not require prisonerplaintiff to exhaust administrative remedies before bringing

Bivens action for monetary damages. The district court

dismissed plaintiff’s civil rights complaint brought pursuant

to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), on the ground that he had

failed to exhaust prison administrative remedies as required

by 42 U.S.C. § 1997e(a). Considering his appeal, the Tenth

Circuit said Congress made it clear by amending §1997e(a) to

include “any other Federal law” that it intended to expand the

application of §1997e beyond state prisoners filing 42 U.S.C.

§1983 actions. “[T]he exhaustion requirements now apply to

Bivens suits brought by federal prisoners against federal officials as well.” Also, Congress amended § 1997e to make

exhaustion mandatory instead of directory.

Despite these conclusions, the court decided that the

district court erred in dismissing plaintiff’s claims because

there were no administrative remedies he could have exhausted before filing the lawsuit. He sought purely monetary

damages for violations of his constitutional rights under

Bivens. The government conceded that prison staff will reject

such a claim as constituting improper subject matter for

administrative review and notify a claimant of the availability

of a remedy under the Federal Tort Claims Act. Plaintiff could

have brought a FTCA claim, the government argued, and

should be required to exhaust the remedies required by that

statute. The court of appeals disagreed.

The plaintiff did not seek damages against the government,

as allowed by the FTCA, but against individual prison officials,

as allowed by Bivens. Thus, his suit does not fall under the

FTCA, and FTCA administrative procedures are not applicable

to him. The court found “untenable” the government’s further

contention that the PLRA compels a prisoner to pursue FTCA

administrative remedies even though he or she is seeking relief

not cognizable by that Act. “Congress clearly intended to

require prisoners to exhaust only ‘such administrative remedies as are available’ before bringing a Bivens suit in federal

court.” It concluded that until Congress provides an administrative remedy for prisoners seeking monetary damages

against prison officials under Bivens, “no exhaustion of administrative remedies is required under PLRA in this case

because no such remedies exist to be exhausted.”

Garrett v. Hawk, 127 F.3d 1263, 1265–67 (10th Cir. 1997).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 11, April 1998

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

Habeas Corpus

Special Procedures in Capital Cases

Ninth Circuit affirms order enjoining state from claiming it

qualifies for special procedures; Supreme Court grants

certiorari. Chapter 154 of the Antiterrorism and Effective

Death Penalty Act (codified at 28 U.S.C. §§2261–2266) adds

new procedures for habeas petitions by state prisoners who

have been sentenced to death. Chapter 154 applies only if a

state qualifies under either the “post-conviction” or “unitary

review” procedures set forth in §§2261 and 2265. Plaintiff, on

behalf of himself and other death row inmates in California,

sought and received from the district court a ruling that

California does not qualify for the Chapter 154 procedures.

The court issued an injunction prohibiting California from

attempting to invoke Chapter 154’s benefits in any state or

federal proceeding. See Ashmus v. Calderon, 935 F. Supp. 1048

(N.D. Cal. 1996) [Habeas & Prison Litig. Update #3]. The

Appellate court upheld the ruling and injunction, although it

clarified the terms of the injunction.

The court first held that the action was not barred by the

Eleventh Amendment. One exception to a state’s right to

immunity occurs when plaintiffs “identify a continuing or

impending violation of federal law” and seek only prospective

relief. “The plaintiffs satisfy this requirement. They have

demonstrated that California’s announced intention to invoke

Chapter 154 without having complied with that Chapter’s optin requirements (as we discuss later in this opinion) threatens

to violate their right to federal review of their habeas petitions,

pursuant to Chapter 153 of Title 28, and their right to the

assistance of counsel, pursuant to 21 U.S.C. § 848(q). . . . The

State is not entitled to the[] ‘benefits’ of Chapter 154 unless it

complies with the opt-in requirements of that Chapter. Until

it does, it remains in noncompliance with the very federal law

it seeks to use against the prisoners; and it seeks to use this law

to deprive the prisoners of their rights to federal review under

Chapter 153 of Title 28. The State’s threat to use Chapter 154

in this way also forces the prisoners to file bare bones petitions

within the 180-day time limit, before counsel will have been

appointed to assist them, thereby depriving them of their right

to the assistance of counsel at this critical stage of the habeas

process, in violation of 21 U.S.C. § 848(q).” Accord Hill v.

Butterworth, 133 F.3d 783, 785 n.7 (11th Cir. 1997). Contra

Booth v. State, 112 F.3d 139, 141–46 (4th Cir. 1997) [Habeas

& Prison Litig. Update #7].

The court then agreed with the district court “that California does not qualify at this time for the benefits of Chapter 154.

. . . Nor did the district court err in determining that an

injunction was necessary to effectuate its declaratory judgment. Had the district court not issued the injunction, California would have been free to assert in other federal and state

proceedings the same position it asserts in this case.” However, the court clarified the injunction “to provide that California is enjoined from asserting in any state or federal court that

it qualifies for the benefits of Chapter 154 under the current

state of California law in cases involving habeas corpus claims

of state prisoners under sentence of death. Moreover, the

district court may determine, depending upon future events,

to modify its injunction as may be appropriate.”

The court rejected the state’s claim that the injunction

violates the First Amendment. “The injunction does not interfere with the state officials’ free speech rights. They are free to

voice their opinion that the district court, and we, are wrong.

The officials, however, may not seek to invoke the opt-in

benefits of Chapter 154 in litigation arising under the current

state of California law in cases similar to the present case after

the district court and this court have determined that the State

has not complied with Chapter 154’s opt-in requirements.”

The Supreme Court granted certiorari on the following

questions: “(1) Does Eleventh Amendment bar coercive suits

that seek to prevent state officials from advocating their views

on disputed issues of law that will arise and be adjudicated in

regular course of habeas litigation? (2) Does injunction barring one party from seeking favorable judicial rulings on

disputed questions of law and procedure constitute impermissible viewpoint-specific prior restraint on lawful advocacy?”

Ashmus v. Calderon, 123 F.3d 1199, 1204–09 (9th Cir.)

(Beezer, J., dissented), cert. granted, 118 S. Ct. 596 (1997).

Second or Successive Petitions

Seventh Circuit sanctions repetitive filer. “For the third time

since Congress enacted the Antiterrorism and Effective Death

Penalty Act, Anthony Alexander has sought to commence a

successive collateral attack on his criminal conviction.” The

court had also rejected a pre-AEDPA collateral attack from

petitioner. Each filing was on the same issue, which the court

twice rejected on the merits. Because “the rejection of a

motion for leave to file a second or successive collateral attack

is ‘on the merits,’ . . . [r]ejected justifications may not be

reiterated in a successive motion for leave to file.” Yet that is
2 Habeas & Prison Litigation Case Law Update, number 11, April 1998• a publication of the Federal Judicial Center

what this inmate has done, and the court faced the question of

“[w]hat should a court do with a prisoner who refuses to take

no for an answer, and files over and over again?”

“Our last order informed Alexander that our patience had

been exhausted” and that he could face sanctions. “But what

sanction can be effective? . . . The problem with money

sanctions is that prisoners don’t pay, tapping the prisoner’s

trust account under the [Prison Litigation Reform Act] is not

an option given the conclusion . . . that the PLRA is inapplicable, and the remedy we have devised for people who ignore

sanctions—blocking the filing of new suits until the money

has been paid . . . —has an exception for collateral attacks on

convictions.”

“Two options remain. First, we can enter a standard Mack

order (blocking the filing of new suits), which will at least give

Alexander some incentive to pay if he wants to engage in civil

litigation other than a collateral attack. . . . Second, we can and

do provide that any future applications for leave to file successive collateral attacks will be deemed rejected, without the

need for judicial action, on the 30th day, unless the court

orders otherwise. . . . We will read any future application

Alexander files, even though we will not necessarily enter an

order addressing it, so Alexander will not lose the benefit of

any decision made retroactive by the Supreme Court.”

The court also imposed a fine. “Courts have inherent

powers to protect themselves from vexatious litigation, . . .

[and] may use that authority when other sources do not

govern the subject. The statutes and rules [governing sanctions] are limited in extent—to actions in the district court, to

‘appeals,’ and perhaps to acts by lawyers—but do not reflect a

substantive decision that repetitious litigation by pro se litigants in original matters filed in the court of appeals ought not

be penalized. Alexander is fined $500, and until he pays that

sum in full to the clerk of this court, clerks of all courts within

this circuit will return, unfiled, any papers he tenders in civil

litigation, and this court will receive but not act on motions for

leave to file successive collateral attacks. If Alexander persists

in filing frivolous applications, the fine will go up.”

Alexander v. United States, 121 F.3d 312, 313–16 (7th Cir.

1997).

Tenth Circuit holds that § 2255 motion that was, in effect,

a reinstatement of the right to appeal, did not count as first

habeas petition. Petitioner was originally convicted and sentenced in 1989. In 1991 he filed a 28 U.S.C. § 2255 motion,

claiming that his attorney in 1989 failed to file an appeal. The

district court granted the motion, appointed counsel, and

scheduled a resentencing hearing, but resentenced petitioner

to the same term. The appellate court then affirmed the

conviction and sentence. After enactment of the AEDPA, petitioner filed another §2255 motion, this time claiming ineffective assistance of appellate counsel. The district court concluded that this was a second or successive petition and

transferred the matter to the appellate court, where petitioner

filed a motion seeking permission to file a second or successive

petition.

The appellate court concluded that, in this situation, the

current §2255 motion was not a second or successive petition

because the first petition was, in effect, a direct appeal. “Here,

when the district court resentenced Mr. Scott following the

filing of his first §2255 motion, the resentencing enabled Mr.

Scott to perfect his direct appeal. . . . The purpose of the

resentencing was to place the defendant ‘back into the position

he would have been had counsel perfected a timely notice of

appeal.’ . . . In fact, on appeal from the resentencing, this court

treated the matter as a direct criminal appeal. . . . In addition,

a §2255 motion should not be considered before the disposition of the direct criminal appeal.”

“Mr. Scott’s ineffective assistance of appellate counsel claim

did not even exist until the direct appeal process concluded.

. . . It is also questionable whether Mr. Scott could have raised

his ineffective assistance of trial counsel claim in the prior

proceeding,” because such claims should be brought in collateral proceedings, not on direct appeal. “Thus these issues

would be precluded from review if the instant motion is

construed as a second motion under AEDPA. . . . [B]ecause of

the unique situation presented when the granting of the prior

motion merely reinstated the right to a direct appeal, the first

subsequent motion is not a second or successive motion under

AEDPA,” and the §2255 motion was remanded to the district

court.

United States v. Scott, 124 F.3d 1328, 1329–30 (10th Cir.

1997) (per curiam).

Second Circuit holds that, when first § 2255 motion

successfully challenged part of sentence, later petition challenging conviction or unamended aspects of original sentence must meet test for second or successive petition. In

1992 defendant filed a § 2255 motion challenging several

aspects of his 1989 sentence. His term of supervised release

was reduced but all other claims failed; the district court’s

decision was affirmed on appeal. In 1997 defendant sought

leave to file another § 2255 motion, attacking his conviction

and sentence.

“Galtieri’s first 2255 petition was successful and resulted in

a modification of his sentence. His second 2255 petition,

strictly speaking, seeks to vacate the amended sentence, and,

still strictly speaking, could be considered a first 2255 petition

to vacate the amended sentence. That approach, however,

would permit every defendant who succeeds in having any

component of his sentence modified to bring a renewed

challenge to his conviction and to the unamended components of his original sentence, raising grounds that were either

available for presentation on the first petition or even specifically rejected on that petition.”

“We therefore conclude that whenever a first 2255 petition

succeeds in having a sentence amended, a subsequent 2255

petition will be regarded as a ‘first’ petition only to the extent

that it seeks to vacate the new, amended component of the

sentence, and will be regarded as a ‘second’ petition to the

extent that it challenges the underlying conviction or seeks to

vacate any component of the original sentence that was not
Habeas & Prison Litigation Case Law Update, number 11, April 1998 • a publication of the Federal Judicial Center 3

amended. In the pending matter, . . . [a]ll of his claims concern

either the conviction or the unamended components of his

sentence. The current petition will therefore be treated in its

entirety as a ‘second’ petition.” The application to file a second

petition was denied because none of the claims met the

statutory standard. Accord Pratt v. United States, 129 F.3d 54,

62–63 (1st Cir. 1997) (dismissing petition that, after first

§ 2255 petition resulted in resentencing, raised claims about

underlying conviction that could have been pursued in first

petition—“Unpursued errors arising out of events that occurred before the filing of the initial habeas petition, and

which could have been, but were not, challenged in that

petition, . . . normally are not eligible for inclusion in a

subsequent habeas petition.”).

The court also addressed the 30-day time limit in which an

appellate court must grant or deny an application to file a

second or successive petition, 28 U.S.C. § 2244(b)(3)(D).

“Though Congress understandably prefers that motions to file

second habeas petitions be adjudicated expeditiously, some

flexibility must be accepted to accommodate the variety of

procedural contexts in which such motions are presented....

In nearly all cases, assessing the motion to file a second habeas

petition against the strict statutory criteria will be a relatively

straightforward task that can be accomplished within 30 days.

In the few instances where that cannot be done, however,

either because the necessary documents cannot be readily

assembled, or, even with such documents, the issue posed is of

such difficulty that it cannot be readily adjudicated, we do not

think that Congress wanted courts to forgo reasoned adjudication.”

In such cases, the appellate court might adjudicate the

motion within 30 days, then stay the mandate and rehear the

motion. Or, as in this case, it might deny the motion within 30

days and issue an opinion later. “Reflecting on our initial

experience with the new statute, we now conclude that an

additional approach, which might be preferable, is to (1) start

the 30-day clock when the motion, and all papers required for

a reasoned decision, including the transcript where necessary,

have been filed with the Court of Appeals, (2) adjudicate the

motion within 30 days in the general run of matters, and (3)

exceed the 30-day limit only where an issue requires a published opinion that cannot reasonably be prepared within 30

days, consistent with the Court’s other obligations.” Cf. In re

Siggers, 132 F.3d 333, 335–36 (6th Cir. 1997) (in “the absence

of any enforcement provision, we hold that failure to comply

with the thirty-day provision does not deprive this Court of

the power to grant or deny a motion under § 2244(b)(3)(A),”

and because “§ 2244(b)(3)(D)’s thirty-day restriction is advisory or hortatory rather than mandatory, we hold that it is not

invalid as an invasion of the judiciary’s autonomy and that it

does not violate due process”).

Galtieri v. United States, 128 F.3d 33, 36–38 (2d Cir. 1997).

Cf. Esposito v. United States, 135 F.3d 111, 113–14 (2d Cir.

1997) (per curiam) (applying Galtieri and dismissing as

unnecessary a motion to file a second § 2255 petition—

because petitioner’s challenge is limited to aspects of his

sentence that were amended upon resentencing, it is treated as

a first petition).

Certificate of Appealability

Tenth Circuit holds that AEDPA standards apply to COA

application filed after the AEDPA took effect even if the

original § 2254 habeas petition was filed before the Act.

Petitioner requested a certificate of appealability (COA) on

August 28, 1996, several months after the AEDPA took effect.

He argued, however, that the new act’s standards should not

apply to his application because his § 2254 petition for habeas

corpus was filed before the enactment of the AEDPA. The

appellate court disagreed.

“Whatever changes AEDPA has made with respect to appeals by habeas corpus petitioners are procedural only. The

notice of appeal in this case, together with Tiedeman’s application for a certificate of appealability, was filed after the

enactment of AEDPA. We recognize that the Supreme Court, in

Lindh v. Murphy, . . . 117 S. Ct. 2059 . . . (1997), has held that

the amendments made by AEDPA to Chapter 153 of Title

28 . . . , generally speaking, are prospective only. The particular provision of the law at issue in Lindh, however, had to do

with the substantive standards for review of state-court judgments by habeas courts. In stating its holding at the end of its

opinion, the Court said that ‘the new provisions of Chapter

153 generally apply only to cases filed after the Act became

effective.’ . . . 117 S. Ct. at 2068 (emphasis ours). The parties

to this case agree that the new provisions with respect to

certificates of appealability made no substantive change in the

standards by which applications for such certificates are

governed. Moreover, we can think of no reason why a new

provision exclusively directed towards appeal procedures

would depend for its effective date on the filing of a case in a

trial court, instead of on the filing of a notice of appeal or

similar document. Accordingly, we hold that AEDPA does

apply to the certificate-of-appealability issues presented in

this case.”

The court also held that “district courts possess the authority to issue certificates of appealability under Section 2253(c)

and Fed. R. App. P. 22(b).” In this case, the district court had

issued a certificate, but “failed to follow Section 2253(c)(3),

which requires that the certificate ‘shall indicate which specific issue or issues satisfy the showing required by paragraph

(2).’ Consequently, the certificate issued in this case is defective on its face. It does not specify any issue or issues with

respect to which the applicant has made a substantial showing

of the denial of a constitutional right.” The court did not

remand, however, because the case “has been fully briefed,

and we have heard oral argument on all issues, including the

merits. Thus, we are fully informed about the merits, and it

would make no sense to go through the unnecessary step of

remanding to the District Court with the request that an issue

or issues be specified, when we already know, having fully

considered the case, what we think the result ought to be....

We hold that Tiedeman has not made a substantial showing of
4 Habeas & Prison Litigation Case Law Update, number 11, April 1998• a publication of the Federal Judicial Center

the denial of a constitutional right, and we therefore deny the

certificate.”

Tiedeman v. Benson, 122 F.3d 518, 520–22 (10th Cir. 1997).

Contra Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir.

1997) (although “the standard governing certificates of probable cause and certificates of appealability is materially identical,” district court should not have applied standards for COA

to application for appeal filed post-AEDPA when habeas petition was filed pre-AEDPA); United States v. Kunzman, 125 F.3d

1363, 1364 n.2 (10th Cir. 1997) (citing other cases, “we join

the majority of circuits and hold that §§ 2254 and 2255

petitioners who filed their petitions in district court prior to

AEDPA’s effective date, regardless of whether they filed their

notice of appeal before or after AEDPA, do not need a certificate

of appealability to proceed with their appeal”); United States v.

Carter, 117 F.3d 262, 264 & n.1 (5th Cir. 1997) (same). See also

United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997)

(following Lindh, “an appellant need not obtain a COA to

appeal the denial of his § 2255 motion so long as he filed the

motion before April 24, 1996”); United States v. Skandier, 125

F.3d 178, 180 (3d Cir. 1997) (same); Arredondo v. United States,

120 F.3d 639, 640 (6th Cir. 1997) (same).

One-Year Period of Limitation

Ninth Circuit holds that actions short of actually filing

habeas petition do not preclude expiration of one-year

limitation period; court also denies “equitable tolling” of

that period for mental incompetence. Over ten years ago,

Horace Kelly murdered three people in California. He was

convicted and sentenced to death for all three murders, and by

1992 the California Supreme Court had upheld the convictions and sentences in his direct appeals. Kelly never sought

further relief in the state courts, and has never filed an

application or petition for habeas corpus in federal court.

However, beginning in 1992, Kelly “start[ed] a ‘proceeding’

for the purpose of obtaining federally appointed counsel

before any application or petition for habeas corpus is filed”

and obtained a stay of execution from the district court. The

court then appointed counsel, a “next friend” to bring a habeas

petition on his behalf, and a psychiatrist to evaluate his current

mental condition. All of this occurred before April 24, 1996,

the effective date of the AEDPA. Over a year after that date, Kelly

still had not filed a habeas petition and the state filed a motion

to dismiss the proceedings and vacate the stays of execution

because AEDPA’s one-year statute of limitations for filing

habeas petitions, 28 U.S.C. § 2244(d)(1)(A), had passed. The

district court concluded that the AEDPA’s filing deadlines did

not apply and denied the motion. The state then filed the

instant petition for a writ of mandamus.

The appellate court agreed with the state’s position and

granted the writ of mandamus to lift the stays of execution and

dismiss the proceedings. The statute “clearly requires that the

‘application for a writ of habeas corpus’ must be filed during

the one-year statute of limitations period. 28 U.S.C.

§ 2244(d)(1)(A). The statute does not say that a request for

counsel must be filed during that time; it requires the filing of

the application itself. It is abundantly clear that no application

for habeas corpus has ever been filed in these matters. No

doubt some sort of proceedings, which might ultimately have

led to applications, were on file. But a mere possibility that a

habeas corpus application will be filed is far from being the

habeas corpus application itself. . . . But, says Kelly, despite the

clear language of §2244(d)(1), the AEDPA does not apply at all

because it only applies to cases filed after April 24, 1996, and

his case was filed before that date. We disagree. As we have

said, the AEDPA applies to defendants who ‘did not have a

federal habeas petition pending at the time AEDPA was signed

into law.’ . . . Kelly has never filed a petition or application.”

The court stated that it’s holding was also supported “by

Congress’s obvious intent to ‘“halt the unacceptable delay

which has developed in the federal habeas process.”’ . . .

Whether one believes that the delay is unacceptable, or not,

the rule argued for by Kelly would seriously undercut

Congress’s purpose, as this matter itself illustrates. Over four

years after he first obtained stays from the district court, Kelly

has yet to present any application for habeas corpus to that

court. If a mere appointment of counsel in what amounts to a

proceeding ancillary to a true habeas corpus application can

avoid the one-year statute of limitations, the Act will not have

been very effective at all.”

“Kelly argues that even if the AEDPA does apply, he is

entitled to tolling of the one-year provision. We have held that

equitable tolling will be available when ‘“extraordinary circumstances” beyond a prisoner’s control make it impossible to

file a petition on time.’” See Calderon v. United States Dist. Ct.

for Cent. Dist. of Cal., 128 F.3d 1283, 1288 (9th Cir. 1997)

(superseding opinion published at 112 F.3d 386 and summarized in Habeas & Prison Litig. Update #8). “Kelly asserts that

he is not mentally competent and cannot, therefore, aid his

attorney. Thus, he argues, he not only is entitled to tolling but

also is entitled to have the stays imposed by the district court

continued indefinitely. He cites no authority for that interesting assertion, and on the facts of these proceedings we reject

it as a matter of law.”

“Kelly has had counsel to represent him for a long time, and

even has a next friend. The Supreme Court could hardly have

contemplated that all post-conviction proceedings would be

stayed because a defendant was not competent, when it

endorsed the concept which allows ‘“next friends” [to] appear

in court on behalf of detained prisoners who are unable,

usually because of mental incompetence or inaccessibility, to

seek relief themselves.’ . . . While we do not foreclose the

possibility that some particular difficulties could require tolling in some instances, this is not one of them. . . . Kelly is

simply attempting to obtain from the federal courts, by indirection, the very relief he was denied on direct appeal in

California. He seeks to put off any decision whatever on the

merits of his claims, if any. That he cannot do under the guise

of tolling or otherwise. As it is, he has injected a long, fruitless

delay into the state proceedings. The AEDPA has, however,

brought that delay to an end.”
Habeas & Prison Litigation Case Law Update, number 11, April 1998 • a publication of the Federal Judicial Center 5

Calderon v. United States Dist. Ct. for Cent. Dist. of Cal., 127

F.3d 782, 784–87 (9th Cir. 1997) (Tashima, J., dissented on the

tolling issue). See also Calderon, 128 F.3d at 1287 n.3 (“for

purposes of determining cases to which AEDPA applies, a case

is pending when the application for a writ of habeas corpus is

filed”); Holman v. Gilmore, 126 F.3d 876, 879–80 (7th Cir.

1997) (AEDPA applies to habeas petition filed after April 24,

1996, even though a request for appointment of counsel was

filed before that date: “A motion under [21 U.S.C. §]

Prison Litigation

Proceedings In Forma Pauperis

Seventh Circuit holds that Thurman analysis applies to

complaints and requires district court to give plaintiff notice

and opportunity to withdraw complaint before incurring

obligation to pay filing fee. The district court dismissed

plaintiff’s complaint as time-barred and ruled that he could

not proceed in forma pauperis (IFP) in the future because he

had three strikes under 28 U.S.C. § 1915(g), as amended by

the Prison Litigation Reform Act. The Seventh Circuit reversed the dismissal and noted that plaintiff had lodged his

complaint before the effective date of the PLRA but that it was

filed after that date. It held that Thurman v. Gramley, 97 F.3d

185, 188–89 (7th Cir. 1996), applied. In Thurman the court

ruled that an appeal lodged before the effective date but filed

after it was subject to the PLRA’s mandatory filing fee provisions. However, to avoid unfairness to a litigant who may not

have anticipated this turn of events, it gave the plaintiff “notice

and an opportunity to dismiss the appeal before taking the step

that locks in the obligation to pay.”

In this case, the court equated a complaint with an appeal

and held that plaintiff must have notice and an opportunity to

withdraw the complaint before he is obligated to pay the filing

fee. Since plaintiff did not receive such notice alerting him “to

the fact that his pursuit of even a non-frivolous suit will trigger

his obligation to prepay the entire filing fee under the statute

because he already has three strikes,” § 1915(g) could not be

applied to bar him from proceeding IFP “until the requirements of Thurman are met.” The Seventh Circuit’s opinion

gave plaintiff sufficient notice of the applicability of §1915(g);

on remand the district court should set a deadline for withdrawal of the complaint. If plaintiff declines to withdraw the

suit, he will not be able to proceed IFP under § 1915(g) and will

have to prepay the full filing fee, assuming that he already has

three strikes against him.

Lucien v. Jockisch, 133 F.3d 464, 468 (7th Cir. 1998).

Fifth Circuit holds that § 1983 cases that include

unexhausted habeas claims fall within purview of three

strikes provision. The district court concluded that plaintiff

had filed at least five actions—two including habeas claims

that were dismissed without prejudice for failure to exhaust

848(q)(4) for appointment of counsel is a prelude to a collateral attack . . . but is not itself a collateral attack. . . . A § 2254

case is commenced on the date the petition is filed.”); Williams

v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (same, for petitioner

who filed motions for stay of execution, to proceed in forma

pauperis, and for appointment of counsel before April 24,

1996, but did not file actual habeas application until after that

date).

state court remedies—that had been dismissed as frivolous

and was therefore barred by §1915(g) from proceeding IFP. It

further denied his request for leave to appeal IFP. The Fifth

Circuit had to decide whether plaintiff already had three

strikes against him before filing his appeal.

The court found “no compelling reason to excuse

[plaintiff’s] frivolous §1983 actions . . . from the reach of the

PLRA’s ‘three strikes’ proviso simply because the cases included

unexhausted habeas claims. It is more faithful to the intent of

the PLRA to classify these dispositions as strikes.” If the court

were to hold otherwise, litigious prisoners could circumvent

the three strikes barrier by pleading such claims as part of

§1983 actions. The court rejected plaintiff’s further contention that the district court’s denial of his IFP petition violated

§1915(b)(4), which provides that a prisoner shall not be

prohibited from bringing a civil action or a civil or criminal

appeal because he has “no means by which to pay the initial

partial filing fee.” Section 1915(b)(4) is subject to the three

strikes rule of §1915(g). The Fifth Circuit held that plaintiff

already had three strikes against him, denied his motion to

proceed IFP, and dismissed his appeal.

Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 461–65

(5th Cir. 1998).

District court rules that petitioner confined under sexual

predator law is not a prisoner as defined by the PLRA.

Petitioner, who was confined under Wisconsin’s sexual predator law, sought declaratory and injunctive relief pursuant to 42

U.S.C. § 1983 and requested leave to proceed IFP. Both petitioner and the state contended that individuals detained under

the Wisconsin law are not prisoners as defined in two identical

provisions of the PLRA—28 U.S.C. § 1915(h) and 42 U.S.C.

§ 1997e(h). The Wisconsin Supreme Court had held that

detention as a sexual predator is neither criminal punishment

nor punitive in nature.

The district court found the Fifth Circuit’s decision in Ojo

v. Immigration & Naturalization Serv., 106 F.3d 680, 682 (5th

Cir. 1997), persuasive. In that case, the court of appeals

“interpreted the statutory definition of prisoner as covering

only individuals whose current detentions serve as punish-
6 Habeas & Prison Litigation Case Law Update, number 11, April 1998• a publication of the Federal Judicial Center

ment for one of the legal violations specified in the statute.” An

immigrant who had been released from prison at the expiration of his criminal sentence and was in the custody of the INS

while deportation proceedings were conducted was not a

prisoner covered by the PLRA. The petitioner’s status in the

present case “is factually similar to the status of the INS

detainee in Ojo,” the district court said. Because his detention

is a civil commitment imposed after a judicial determination

that he is a sexually violent person according to the Wisconsin

law, the petitioner could not be considered a prisoner subject

to the fee provisions of the PLRA.

West v. Macht, 986 F. Supp. 1141, 1143 (W.D. Wis. 1997).

District court holds that sua sponte dismissal of complaint for failure to state a claim under § 1915 poses no

retroactivity concerns, and such dismissal is proper when

the complaint shows on its face that the action is timebarred. Section 1915(e)(2)(B) directs that a district court

dismiss a case sua sponte at any time if it appears that the

action fails to state a claim upon which relief may be granted.

The court held that this provision, like the three strikes section

(§ 1915(g)), “effectuates a change which has no deleterious

substantive consequences” for the plaintiff, who filed his

complaint in 1995, and therefore applies to pending litigation.

It then turned to the question of whether it is proper for the

court to dismiss a complaint sua sponte and before service of

process on statute of limitations grounds. A pre-PLRA case,

Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995), held that sua sponte

dismissal before service of the pro se complaint was appropriate because the claim, filed five years after the events in

question, was “based on an indisputably meritless legal

theory.” Since the Pino decision was rendered “under the more

plaintiff-protecting requirements of the old § 1915(d),” and

“Congress in the PLRA has directed courts to dismiss at any

time for failure to state a claim, nothing counsels against

dismissal on limitations grounds in this case,” which was also

filed five years after the date at issue.

Johnstone v. United States, 980 F. Supp. 148, 154 (E.D. Pa.

1997).

Remedies for Prison Conditions

Sixth Circuit reverses district court and holds that termination provisions do not violate separation of powers. The

district court held that 18 U.S.C. §3626(b)(2)–(3), the PLRA’s

provisions entitling defendants in prison condition lawsuits

to obtain immediate termination of prospective relief in existing consent decrees, unconstitutionally violated separation of

powers. Hadix v. Johnson, 947 F. Supp. 1100 (E.D. Mich. 1996).

The Sixth Circuit reversed. It agreed with several other circuits

that the provisions do not require the reopening of a final

judgment; “rather, they merely alter the prospective application of orders requiring injunctive relief.” As the other courts

had concluded, “the prospective equitable relief contained in

the Hadix consent decree remains subject to subsequent

changes in the law.”

The court also concurred with several other circuits that

the provisions do not prescribe a rule of decision, but only “the

standard for authorizing a remedy in any given case.” It stated

in a footnote that if plaintiffs’ challenges to the provisions on

due process and equal protection grounds were before it, it

would reject them, as a number of other circuits had, and find

the statute “rationally-related to the legitimate state interest of

curbing judicial involvement in prison administration.”

Hadix v. Johnson, 133 F.3d 940, 942–43 (6th Cir. 1998).

Ninth Circuit holds that §3626 applies to pending cases

and that district court erred in granting summary judgment

against defendants without making required findings. The

district court granted summary judgment sua sponte, ordering defendants to provide plaintiff with a special diet. Defendants appealed, contending that the court erred in granting

summary judgment for plaintiff without finding that the relief

was narrowly drawn, extended no further than necessary to

correct the violation of the right, and was the least intrusive

means necessary, as required by §3626(a)(1).

The court of appeals agreed that the lower court had to

make such findings before it could render summary judgment

because Congress had explicitly prescribed that §3626 apply

retroactively. It reversed and remanded the case so that the

defendants could respond and the district court, if it found for

the plaintiff again, could “consider the appropriate relief in

light of the PLRA.”

Oluwa v. Gomez, 133 F.3d 1237, 1240 (9th Cir. 1998).

Eighth Circuit holds that district court must make

findings required by PLRA to support injunction and, if

prospective relief sought includes a prisoner release order,

it must be entered by three-judge court. Defendant sought to

dissolve an injunction granted by the district court Sept. 16,

1996, without holding a hearing or considering the applicability of the PLRA. The injunction in an ongoing class action

granted a motion brought by plaintiff inmates to establish a

ceiling on technical probation violators held in the city jail.

The Eighth Circuit agreed with the defendant that the Sept.

16th order violated § 3626 by, among other things, granting

prospective relief without making the findings specified in

§ 3626(b)(2) and (3). Moreover, the injunction constituted a

“prisoner release order” as defined in §3626(g)(4) and, as

such, was subject to the requirements of §3626(a)(3), which

provides that prisoner release orders “shall be entered only by

a three-judge court.” The court of appeals observed that it had

already rejected all but one of the plaintiffs’ constitutional

arguments against the PLRA’s immediate termination provision in Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), and

it likewise rejected their contention that §3626(b) impaired

the judiciary’s power to remedy constitutional violations.

Under §3626(b)(3), courts may tailor prospective relief necessary to remedy a current violation of federal rights.

The appellate court found that any prospective relief

granted “without the § 3626(b)(2) findings . . . must be

terminated unless the court makes the findings specified in
Habeas & Prison Litigation Case Law Update, number 11, April 1998 • a publication of the Federal Judicial Center 7

§3626(b)(3).” But plaintiffs “are entitled to seek new or

extended prospective relief under the standards set forth in

§ 3626(a).” If such relief includes a prisoner release order, the

order must be entered by a three-judge court pursuant to

§ 3626(a)(3)(B). Finding the statute unclear regarding

“whether the § 3626(b)(3) findings that will avoid termination of an existing injunction must in all cases be made by a

three-judge court if the injunction includes a prisoner release

order,” the Eighth Circuit left “the question of the proper

interplay between § 3626(a)(3) and § 3626(b)(3) for initial

decision by the district court.”

Tyler v. Murphy, 135 F.3d 594, 596–98 (8th Cir. 1998).

District court, citing Benjamin v. Jacobson, rules that

termination of prospective relief does not allow defendants

to ignore terms of consent decree. In an unpublished opinion, the district court reviewed its previous decision in an

August 1, 1997, opinion and order terminating prospective

relief granted in a March 6, 1996, consent decree. It held that

in light of the Second Circuit’s ruling in Benjamin v. Jacobson,

124 F.3d 162, 178 (1997), it had to reverse its earlier decision

to the extent that the decision had allowed the defendants

essentially to ignore the consent decree. Although the prospective relief granted in the decree remained terminated, “the

parties are not free to ignore the terms of the consent decree.

. . . If Defendants violate the terms of the March 6, 1996

consent decree, Plaintiff must seek enforcement of the decree

in state court.”

Giles v. Coughlin, No. 95 CIV. 3033 JFK (S.D.N.Y. Dec. 11,

1997) (Kennan, J.) (unpublished).

Suits by Prisoners

Seventh Circuit holds that §1997e(e) is constitutional as

applied in case in which no physical injuries are alleged.

Plaintiffs, inmates at the Indiana Youth Center who were

exposed to asbestos, claimed mental and emotional injuries as

a result of the exposure. Defendants moved for judgment on

the pleadings because plaintiffs did not allege “physical injury” as required by 42 U.S.C. §1997e(e). The district court

ruled that recovery was barred by § 1997e(e) and dismissed

the case without prejudice. 952 F. Supp. 1318 (S.D. Ind. 1997).

The Seventh Circuit first ruled that plaintiffs had waived

appellate review of the applicability of §1997e(e) to their case,

which was pending when the PLRA was enacted, by failing to

present the argument in the district court. It then considered

the constitutionality of the statute, which “does not permit

recovery for custodial mental or emotional damages ‘without

a prior showing of physical injury.’” The court agreed with the

district court that the prohibition on recovery of damages in

§1997e(e) does not improperly strip federal courts of their

power to remedy constitutional violations. They retain the

power to enforce constitutional guarantees through other

remedies. The court concluded that Owen v. City of Independence, 445 U.S. 622 (1980), which plaintiffs cited in support

of their argument, actually “supports the view that §1997e(e)

is a permissible restriction on the availability of damages for

constitutional violations” because Congress had clearly declared its intent to restrict the damages remedy in 42 U.S.C.

§ 1983 cases. The court recognized that injunctive relief did

not offer any meaningful recourse for the plaintiffs, but

emphasized that “the Constitution does not demand an individually effective remedy for every constitutional violation.”

Plaintiffs will be able to sue for damages if they develop

asbestos-related illnesses in the future; therefore, the statute is

constitutional as applied in this case.

The Seventh Circuit also rejected plaintiffs’ argument that

§1997e(e) “impinges upon their fundamental right of access

to the courts by effectively denying them a judicial forum for

their claims of emotional injury.” The statute “only limits the

relief to which the plaintiffs are entitled.” They still possess

what the Supreme Court, in Lewis v. Casey, 116 S. Ct. 2174,

2180–81 (1996), said the Constitution requires—“a reasonably adequate opportunity to present claimed violations of

fundamental constitutional rights to the courts.” Consequently, §1997e(e) is not subject to strict scrutiny and it easily

meets the rational basis test. The court of appeals noted that

the recent Supreme Court decision of Metro-North Commuter

R.R. Co. v. Buckley, 117 S. Ct. 2113 (1997), upheld similar

restrictions upon a group of nonprisoners. Plaintiffs’ further

equal protection argument based on Romer v. Evans, 517 U.S.

620 (1996), was equally unavailing because the statute does

not impose “across the board restriction on access to governmental assistance.” The court declared meritless plaintiffs’

contention that §1997e(e) violates the separation of powers

principles enunciated in United States v. Klein, 80 U.S. (13

Wall.) 128 (1871) by prescribing a rule of decision. “If the

argument were accepted, countless federal statutes would be

called into question on constitutional grounds.”

Zehner v. Trigg, 133 F.3d 459, 461–64 (7th Cir. 1997). But

cf. Kerr v. Puckett, No. 97-2566 (7th Cir. March 10, 1998)

(Easterbook, J.) (holding in Robbins v. Switzer, 104 F.3d 895

(7th Cir. 1997), that “prisoner” in §1915(b) does not comprehend inmate who has been released, applies equally to

§ 1997e; thus, ex-prisoner on parole may bring suit for mental

or emotional injury without a showing of physical injury).

Sixth Circuit holds that attorneys’ fees provision does not

apply to legal work completed before enactment of the PLRA.

In 1985, the district court ordered that plaintiffs—attorneys

representing all female inmates in Michigan—were entitled to

attorneys’ fees in the ongoing case. On March 11, 1996,

plaintiffs filed a petition for attorneys’ fees incurred between

July and December 1995. On May 7, 1996, the defendants filed

a brief calling the court’s attention to the passage of the PLRA

and contending that the Act’s attorneys’ fees provision should

apply retroactively to plaintiffs’ petition for fees. The district

court rejected the defendants’ argument.

On appeal, defendants renewed their contentions that

under 42 U.S.C. § 1997e(d)(1)(A) & (B), the plaintiffs must

establish “how each hour they charged was directly and

reasonably incurred in proving an actual violation of constitu-
Habeas & Prison Litigation Case Law Update, no. 11, Apr. 1998

Federal Judicial Center

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One Columbus Circle, N.E.

Washington, DC 20002-8003

tionally protected rights” and, further, that the plaintiffs’

hourly rate should be limited to $112.50, as provided in

§ 1997e(d)(3). The Sixth Circuit concluded that under

Landgraf v. U.S.I. Film Prods., 511 U.S. 244 (1994), the statute

has an impermissible retroactive effect by attaching “new legal

consequences to events completed before its enactment” and

“impairing rights acquired under preexisting law.” In so doing, it found meritless the defendants’ position that the court

should “apply the law in effect at the time it renders its

decision,” as the Supreme Court held in Bradley v. School Bd.

of Richmond, 416 U.S. 696, 711 (1974). There is a key distinction between Bradley and the case at issue. In Bradley,”[t]here

was no manifest injustice in applying the new fee statute . . .

given that fees had already been awarded under an alternative

theory.” In the case before the court of appeals, such an

injustice would be done. “Throughout 1995, the inmates’

attorneys presumably expected that, as the court had ordered,

they would be reimbursed for their monitoring work under 42

U.S.C. § 1988 at the then-established rate. Application of the

PLRA in determining the attorneys’ fees would frustrate those

expectations.” In addition, the attorneys made their decision

to represent the prisoners within the parameters of § 1988.

The Sixth Circuit also addressed dicta in Landgraf that

attorneys’ fees determinations are “‘collateral to the main

cause of action’ and ‘uniquely separable from the cause of

action to be proved at trial.’” 511 U.S. at 277. In classifying

these determinations as collateral, the Supreme Court linked

them to cases involving new procedural rules and recognized

that “‘the mere fact that a new rule is procedural does not mean

that it applies to every pending case.’ Id. at 275 n.29.” Application “ordinarily depends on the posture” of a particular case.

The same is true for an attorneys’ fees provision, the court of

appeals observed, because such a provision “may also affect

the substantive rights of the parties, and in this instance . . . it

does.” The court emphasized that the issue of “whether fees

earned by the plaintiffs’ attorneys after April 26, 1996, will be

limited by the PLRA is not before us.”

Glover v. Johnson, No. 95-1521 (6th Cir. March 2, 1998)

(Ryan, J.) (Judge Wellford dissented).

District court defines physical injury needed to comply

with § 1997e(e) under Siglar v. Hightower. Plaintiff alleged an

assault in which he received a cut on the face, bloody nose,

cuts in his mouth, and other cuts and abrasions. The district

court noted that in Siglar v. Hightower, 112 F.3d 191, 193 (5th

Cir. 1997), the Fifth Circuit held that “under the Eighth

Amendment, § 1997e(e) excludes from Constitutional recognition a de minimis injury.” The district court held that a

physical injury cognizable under the statute “is an observable

or diagnosable medical condition requiring treatment by a

medical care professional. It is not a sore muscle, an aching

back, a scratch, an abrasion, a bruise, etc., which lasts even up

to two or three weeks. . . . Injuries treatable at home and with

over-the-counter drugs, heating pads, rest, etc., do not fall

within the parameters of 1997e(e).”

Luong v. Hatt, 979 F. Supp. 481, 485–86 (N.D. Tex. 1997).
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 12, June 1998

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

Habeas Corpus

validity of a defense the State may, or may not, raise in a habeas

proceeding. Such a suit does not merely allow the resolution

of a ‘case or controversy’ in an alternative format, . . . but rather

attempts to gain a litigation advantage by obtaining an advance ruling on an affirmative defense . . . . The ‘case or

controversy’ actually at stake is the class members’ claims in

their individual habeas proceedings. Any judgment in this

action thus would not resolve the entire case or controversy as

to any one of them, but would merely determine a collateral

legal issue governing certain aspects of their pending or future

suits.”

“If the class members file habeas petitions, and the State

asserts Chapter 154, the members obviously can litigate

California’s compliance with Chapter 154 at that time. Any

risk associated with resolving the question in habeas, rather

than a pre-emptive suit, is no different from risks associated

with choices commonly faced by litigants.”

“We conclude that this action for a declaratory judgment

and injunctive relief is not a justiciable case within the

meaning of Article III. The judgment of the Court of Appeals

accordingly is reversed, and the case is remanded with instructions that respondent’s complaint be dismissed.”

Calderon v. Ashmus, 118 S. Ct. 1694, 1696–1700 (1998).

Second or Successive Petition

Supreme Court holds that habeas petition challenging

competency to be executed, previously dismissed as premature, is not second petition prohibited by AEDPA. Before

the enactment of the AEDPA, a state death row inmate filed a

habeas petition under 28 U.S.C. § 2254 claiming, in part, that

he was incompetent to be executed under Ford v. Wainwright,

477 U.S. 399 (1986). The district court granted the writ on

some grounds, but dismissed the competency claim as premature. The Ninth Circuit reversed, but specifically stated that its

order was not intended to affect later litigation on the Ford

claim.

After unsuccessfully pursuing his claim of incompetency

in the state courts, the inmate moved to reopen his Ford claim

in the district court in 1997. That court, however, concluded

that the AEDPA barred the claim as a second or successive

petition, 28 U.S.C. § 2244(b). The inmate then petitioned the

appellate court for permission to file a second or successive

Special Procedures in Capital Cases

Supreme Court holds that inmates were not entitled to

injunction barring state from claiming benefits of special

habeas procedures in capital cases. “Chapter 154 of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C.A. § 2261 et seq. (Supp. 1998), provides

certain procedural advantages to qualifying States in federal

habeas proceedings. This case requires us to decide whether

state death-row inmates may sue state officials for declaratory

and injunctive relief limited to determining whether California qualifies under Chapter 154.” The district court had issued

a declaratory judgment holding that California did not qualify

for the Chapter 154 procedures, and enjoined the state from

attempting to invoke Chapter 154’s benefits in state or federal

proceedings. With slight modification, the Ninth Circuit affirmed the order and injunction. See Ashmus v. Calderon, 123

F.3d 1199, 1204–09 (9th Cir. 1998) [Habeas & Prison Litig.

Update #11]. Accord Hill v. Butterworth, 133 F.3d 783, 785 n.7

(11th Cir. 1997). Contra Booth v. State, 112 F.3d 139, 141–46

(4th Cir. 1997) [Habeas & Prison Litig. Update #7].

The Supreme Court reversed, holding that the Federal

Declaratory Judgment Act, 28 U.S.C. § 2201, was not applicable under these circumstances. The Act provides that “[i]n

a case of actual controversy within its jurisdiction, . . . any

court of the United States . . . may declare the rights and other

legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Here,

the “underlying ‘controversy’ between petitioners and respondent is whether respondent is entitled to federal habeas relief

setting aside his sentence or conviction obtained in the California courts. But no such final or conclusive determination

was sought in this action. Instead, respondent carved out of

that claim only the question of whether, when he sought

habeas relief, California would be governed by Chapter 153 or

by Chapter 154 in defending the action. Had he brought a

habeas action itself, he undoubtedly would have obtained

such a determination, but he seeks to have that question

determined in anticipation of seeking habeas so that he will be

better able to know, for example, the time limits which govern

the habeas action.”

The Court concluded that “previous decisions of this Court

bar the use of the Declaratory Judgment Act for this purpose.”

As in a case where a declaratory judgment was not allowed,

“respondent here seeks a declaratory judgment as to the
2 Habeas & Prison Litigation Case Law Update, number 12, June 1998• a publication of the Federal Judicial Center

claim, § 2244(b)(3). The Ninth Circuit ruled that the inmate’s

Ford claim should be treated as a first petition and heard in the

district court because this was, in effect, the first time he had

been able to have that claim adjudicated. His previous petition, the court reasoned, should be treated like one that had

been dismissed without prejudice for failure to exhaust, which

does not trigger § 2244(b). See Martinez-Villareal v. Stewart,

118 F.3d 628, 630–34 (9th Cir. 1997) (per curiam) [Habeas &

Prison Litig. Update #10]. See also Carlson v. Pitcher, 137 F.3d

416, 420 (6th Cir. 1998) (agreeing with other circuits that

habeas petition filed after previous petition was dismissed

without prejudice for failure to exhaust state remedies is not

“second or successive application”).

The Supreme Court agreed with the Ninth Circuit’s reasoning and affirmed its decision. “The State contends that because

respondent has already had one ‘fully-litigated habeas petition, the plain meaning of §2244(b) as amended requires his

new petition to be treated as successive.’ . . . This may have

been the second time that respondent had asked the federal

courts to provide relief on his Ford claim, but this does not

mean that there were two separate applications, the second of

which was necessarily subject to § 2244(b). There was only

one application for habeas relief, and the District Court ruled

(or should have ruled) on each claim at the time it became ripe.

Respondent was entitled to an adjudication of all of the claims

presented in his earlier, undoubtedly reviewable, application

for federal habeas relief. The Court of Appeals was therefore

correct in holding that respondent was not required to get

authorization to file a ‘second or successive’ application before

his Ford claim could be heard.”

“We believe that respondent’s Ford claim here—previously

dismissed as premature—should be treated in the same manner as the claim of a petitioner who returns to a federal habeas

court after exhausting state remedies. True, the cases are not

identical; respondent’s Ford claim was dismissed as premature,

not because he had not exhausted state remedies, but because

his execution was not imminent and therefore his competency

to be executed could not be determined at that time. But in

both situations, the habeas petitioner does not receive an

adjudication of his claim. To hold otherwise would mean that

a dismissal of a first habeas petition for technical procedural

reasons would bar the prisoner from ever obtaining federal

habeas review.”

Finding that the Ford claim was not a second or successive

petition gave the Court jurisdiction to review the appellate

court decision. See §2244(b)(3)(E) (“The grant or denial of

an authorization by a court of appeals to file a second or

successive application shall not be appealable and shall not be

the subject of a petition for rehearing or for a writ of certiorari.”). “[F]or the same reasons that we find we have jurisdiction, we hold that the Court of Appeals was correct in deciding

that respondent was entitled to a hearing on the merits of his

Ford claim in the District Court.” The Court noted that its

decision does not reach “the situation where a prisoner raises

a Ford claim for the first time in a petition filed after the federal

courts have already rejected the prisoner’s initial habeas application.” The Fifth Circuit has held that a petition in that

instance was second or successive and subject to § 2244(b).

See In re Davis, 121 F.3d 952, 953–56 (5th Cir. 1997) [Habeas

& Prison Litig. Update #10].

Stewart v. Martinez-Villareal, 118 S. Ct. 1618, 1620–22

(1998) (two justices dissented).

Supreme Court holds that recall of mandate did not

violate AEDPA standards but was an abuse of discretion,

sets standards for sua sponte recall of mandate in light of

the AEDPA. In 1995, the district court granted a state death row

inmate’s first habeas petition, thus invalidating his death

sentence. A panel of the Ninth Circuit reversed the grant in

1996, and denied the inmate’s petition for rehearing and

suggestion for hearing en banc in March 1997. The court

issued its mandate denying all habeas relief in June, after the

Supreme Court denied certiorari. The state then set an execution date for August, the California Supreme Court denied the

inmate’s fourth state habeas petition, and the Governor of

California denied clemency. A few days before the execution

date, and after denying the inmate’s motion to recall the

mandate, an en banc panel of the Ninth Circuit recalled its

mandate sua sponte and granted habeas relief, vacated the

death sentence, and remanded for further proceedings. The

court stated that the recall was warranted because “procedural

misunderstandings” within the court had prevented an earlier

en banc review and the original panel’s decision “would lead

to a miscarriage of justice.” See Thompson v. Calderon, 120 F.3d

1045, 1048–51 (9th Cir. 1997).

The Supreme Court reversed, holding that the appellate

court abused its discretion in recalling its mandate because the

miscarriage of justice standard—which requires some showing of actual innocence—was not met on the facts of this case.

The Court also articulated a standard for a sua sponte recall of

mandate in light of the requirements and restrictions of the

AEDPA. After initially affirming that appellate courts have an

inherent power to recall their mandates, though under very

limited circumstances, the Court had to determine whether

the recall here was barred by the AEDPA’s restrictions on second

or successive habeas petitions, 28 U.S.C. § 2244(b).

“In a §2254 case, a prisoner’s motion to recall the mandate

on the basis of the merits of the underlying decision can be

regarded as a second or successive application for purposes of

§2244(b). Otherwise, petitioners could evade the bar against

relitigation of claims presented in a prior application,

§2244(b)(1), or the bar against litigation of claims not presented in a prior application, §2244(b)(2). If the court grants

such a motion, its action is subject to AEDPA irrespective of

whether the motion is based on old claims (in which case

§ 2244(b)(1) would apply) or new ones (in which case

§ 2244(b)(2) would apply).”

Under the language of the statute, “§ 2244(b) applies only

where the court acts pursuant to a prisoner’s ‘application.’ This

carries implications for cases where a motion to recall the

mandate is pending, but the court instead recalls the mandate

on its own initiative. Whether these cases are subject to
Habeas & Prison Litigation Case Law Update, number 12, June 1998 • a publication of the Federal Judicial Center 3

§ 2244(b) depends on the underlying basis of the court’s

action. If, in recalling the mandate, the court considers new

claims or evidence presented in a successive application for

habeas relief, it is proper to regard the court’s action as based

on that application. In these cases, § 2244(b)(2) applies irrespective of whether the court characterizes the action as sua

sponte.”

Here, however, “the Court of Appeals was specific in

reciting that it acted on the exclusive basis of Thompson’s first

federal habeas petition. The court’s characterization of its

action as sua sponte does not, of course, prove this point; had

the court considered claims or evidence presented in

Thompson’s later filings, its action would have been based on

a successive application, and so would be subject to §2244(b).

But in Thompson’s case the court’s recitation that it acted on

the exclusive basis of his first federal petition is not disproved

by consideration of matters presented in a later filing. Thus we

deem the court to have acted on his first application rather

than a successive one. As a result, the court’s order recalling its

mandate did not contravene the letter of AEDPA.”

However, even if AEDPA does not govern a case like this, “a

court of appeals must exercise its discretion in a manner

consistent with the objects of the statute. In a habeas case,

moreover, the court must be guided by the general principles

underlying our habeas corpus jurisprudence,” such as a state’s

interest in finality. “[W]e hold the general rule to be that,

where a federal court of appeals sua sponte recalls its mandate

to revisit the merits of an earlier decision denying habeas

corpus relief to a state prisoner, the court abuses its discretion

unless it acts to avoid a miscarriage of justice as defined by our

habeas corpus jurisprudence. The rule accommodates the

need to allow courts to remedy actual injustice while recognizing that, at some point, the State must be allowed to exercise

its ‘“sovereign power to punish offenders.”’”

“This standard comports with the values and purposes

underlying AEDPA.... Section 2244(b) of the statute is

grounded in respect for the finality of criminal judgments.

With the exception of claims based on new rules of constitutional law made retroactive by this Court, see §2244(b)(2)(A),

a federal court can consider a claim presented in a second or

successive application only if the prisoner shows, among

other things, that the facts underlying the claim establish his

innocence by clear and convincing evidence. See

§ 2244(b)(2)(B). It is true that the miscarriage of justice

standard we adopt today is somewhat more lenient than the

standard in § 2244(b)(2)(B). . . . The miscarriage of justice

standard is altogether consistent, however, with AEDPA’s central concern that the merits of concluded criminal proceedings

not be revisited in the absence of a strong showing of actual

innocence. And, of course, the rules applicable in all cases

where the court recalls its mandate . . . further ensure the

practice is limited to the most rare and extraordinary case.”

Calderon v. Thompson, 118 S. Ct. 1489, 1498–1502 (1998)

(four justices dissented).

Seventh Circuit holds that motion to recall the mandate

is functional equivalent of second or successive petition.

In petitioner’s capital case, the appellate court had previously

affirmed the district court’s order denying relief under 28

U.S.C. § 2254, denied a petition for rehearing and rehearing en

banc, issued its mandate, and twice denied stays of execution.

A week before his scheduled execution, petitioner asked the

court to recall its mandate and entertain arguments based on

a neurosurgeon’s recent testimony at a clemency hearing

concerning defendant’s claim of possible brain injury.

The appellate court characterized the motion as the equivalent of a motion under Fed. R. Civ. P. 60(b) in a district court,

which should be construed as a second or successive habeas

application under § 2244(b). “Otherwise the statute would be

ineffectual. Instead of meeting the requirements of sec.

2244(b), the petitioner would restyle his request as a motion

for reconsideration in the initial collateral attack and proceed

as if the AEDPA did not exist.” Consequently, “a motion filed in

the court of appeals after the time for rehearing has expired

(or rehearing has been sought and denied) may be granted

only if it meets the substantive criteria of sec. 2244(b)(2).”

Because petitioner could not meet that test, the motion was

denied.

Burris v. Parke, 130 F.3d 782, 783–85 (7th Cir. 1997)

(Cudahy, J., dissented). See also U.S. v. Rich, No. 97-30464

(5th Cir. May 13, 1998) (Garza, J.) (affirmed: Rule 60(b)

motion for reconsideration of previous denial of § 2255 motion treated as request to file successive § 2255 motion); Lopez

v. Douglas, No. 96-6384 (10th Cir. Apr. 8, 1998) (per curiam)

(same for § 2254 petitioner). Cf. Buchanan v. Gilmore, 139 F.3d

982, 984 (4th Cir. 1998) (death row inmate’s petition under 42

U.S.C. § 1983 “is in essence a petition for a writ of habeas

corpus . . . [and therefore] is a successive motion that is barred

by 28 U.S.C. § 2244”); In re Sapp, 118 F.3d 460, 462–63 (6th

Cir. 1997) (same: “a death row inmate cannot escape the rules

regarding second or successive habeas petitions by simply

filing a §1983”); Williams v. Hopkins, 130 F.3d 333, 336 (8th

Cir. 1997) (agreeing with Sapp).

Second Circuit holds that habeas petitioner does not

have burden of proving that petition filed in district court

is not second or successive application. A state inmate filed

a §2254 petition attacking his 1977 conviction. When the

district court discovered the inmate had previously filed a

§ 2254 petition, it transferred the petition to the appellate

court, per Second Circuit procedure, so he could file a motion

for authorization to file a successive petition. On a form

provided by the appellate court, the inmate represented that

he had never filed a prior petition attacking his 1977 conviction. Because the record did not indicate whether the prior

petition attacked the 1977 conviction or another conviction,

the appellate court denied the motion without prejudice and

remanded to the district court “for inquiry and fact-finding as

to whether the proposed petition is second or successive.”

The appellate court found that, while the AEDPA sets

procedures for filing a successive petition, it “does not say who
4 Habeas & Prison Litigation Case Law Update, number 12, June 1998• a publication of the Federal Judicial Center

must demonstrate that the current petition is (or is not)

‘successive.’ We think that a petitioner attempting to comply

with such a rule could do little more than attest that he had not

filed prior petitions, as Thomas has done in his petition. But

that is insufficient for our purposes, because the AEDPA’s

limitation on successive petitions would be nullified if we

had to rely on the bald statement of a pro se litigant as to so

subtle a legal issue. On the other hand, the Government can

easily find out and show in district court whether prior

petitions have been filed.” Thus, on remand the district court

should “determine more particularly whether the petition was

indeed successive. In doing so, the district court should

determine whether the prior petition was dismissed with

prejudice and whether the instant petition attacks the same

judgment that was attacked in the prior petition. . . . If the prior

petition succeeded in winning an amendment of the sentence,

the district court should determine whether the pending

petition is addressed to the amended components of the

sentence.”

Thomas v. Superintendent/Woodbourne Corr. Facility, 136

F.3d 227, 229–30 (2d Cir. 1997) (per curiam).

Seventh Circuit holds that habeas petition challenging

aspects of resentencing after successful habeas petition is

not second or successive. Petitioner had been resentenced in

1992 following his successful §2254 motion. In 1996, he filed

another §2254 petition that challenged aspects of the resentencing hearing. The district court dismissed the petition,

concluding that it was a second petition that had to be

authorized by the appellate court. Petitioner then filed an

application for permission to file a second habeas petition, but

argued that it was his first collateral attack on the second

sentencing proceeding. The appellate court agreed and remanded to the district court with instructions to accept the

habeas filing.

“The claims Walker seeks to bring in his new petition

challenge aspects of his resentencing; he does not present any

claims challenging his conviction. None of these new claims

were raised in his first petition, nor could they have been;

Walker is attempting to challenge the constitutionality of a

proceeding which obviously occurred after he filed, and

obtained relief, in his first habeas petition. Therefore, although Walker had filed an earlier habeas petition in 1988, the

petition that he now wishes to file cannot be considered a

second or successive petition to the earlier one for purposes of

§ 2244 because it constitutes Walker’s first federal challenge to

the proceedings that resulted in his current state custody. We

hold that a second habeas petition attacking for the first time

the constitutionality of a newly imposed sentence is not a

second or successive petition within the meaning of §2244.”

The court noted that, “had Walker sought to challenge aspects

of his conviction the district court would have been correct in

dismissing his petition as successive.”

Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997) (per

curiam). Accord Esposito v. United States, 135 F.3d 111, 113–14

(2d Cir. 1997) (same, for § 2255).

First Circuit rules on several aspects of decision to

grant or deny application for successive petition. Petitioner was convicted of murder in 1971. His state court

appeals were unsuccessful, as were two federal habeas petitions, the last of which was filed in 1984. In 1995 he began

another round in the state courts, this time claiming that the

use of “moral certainty” language in the reasonable doubt

instruction given to his jury was in violation of Cage v.

Louisiana, 498 U.S. 39 (1990). After the state courts had

rejected his claim, and after the passage of the AEDPA, petitioner requested authorization from the First Circuit to pursue

a third federal habeas petition in the district court. He contended that Cage is “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.” 28 U.S.C. §2244(b)(2)(A).

The first issue to resolve was whether there was any effect

on petitioner’s application from the fact that the appellate

court had exceeded the 30-day limit in §2254(b)(3)(D)

(“court of appeals shall grant or deny the authorization to file

a second or successive petition not later than 30 days after the

filing of the motion”). The court agreed with two other circuits

that have found that the limit is not mandatory, although it

should be followed when possible. “Before operating as a

mandate, a statutory time limitation addressed to a public

official generally must contain both an express command that

the official act within a given temporal period and a consequence attached to noncompliance. . . . [Section

2244(b)(3)(D)] specifies no consequence for the court’s failure to honor this obligation. . . . While section 2244(b)(3)(D)

directs the courts of appeals to work within a specified time

frame . . . it operates as a guideline, not as an imperative.” The

court added that “we will, of course, make a diligent, goodfaith effort to comply with the 30-day time limit. We anticipate

little difficulty doing so in the ordinary mine-run of cases. Yet,

certain applications will present issues that are sufficiently

complex or novel to demand more time. . . . If circumstances

counsel against issuing a ruling within 30 days, we must retain

the flexibility to bring the appropriate quantum of attention to

bear.” Accord In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997);

Galtieri v. United States, 128 F.3d 33, 36–37 (2d Cir. 1997).

The court next looked to what is required for petitioner to

make a “prima facie showing” that he met the requirements of

§ 2254(b)(2). The court adopted the standard set by the

Seventh Circuit, that a “prima facie showing” is “simply a

sufficient showing of possible merit to warrant a fuller exploration by the district court. . . . If in light of the documents

submitted with the application it appears reasonably likely

that the application satisfies the stringent requirements for the

filing of a second or successive petition, we shall grant the

application.” Bennett v. United States, 119 F.3d 468, 469–70

(7th Cir. 1997). Accord Woratzeck v. Stewart, 118 F.3d 648,

650 (9th Cir. 1997). The First Circuit emphasized that “despite its superficially lenient language, the standard erects a

high hurdle.”

As to whether petitioner could meet that standard, the

court noted that the basis of his claim fell under
Habeas & Prison Litigation Case Law Update, number 12, June 1998 • a publication of the Federal Judicial Center 5

§ 2254(b)(2)(A): “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.” The court quickly determined that petitioner satisfied two of the three parts of

§ 2254(b)(2)(A)—Cage set forth a new rule of constitutional

law and it was unavailable to him at the time of his previous

habeas actions. “The remaining question is whether Cage’s

rule has been ‘made retroactive to cases on collateral review by

the Supreme Court.’”

Before the AEDPA, in the absence of a direct statement by the

Supreme Court, the lower federal courts could determine

whether a new rule of constitutional law merited retroactive

application. However, the AEDPA “invests the [Supreme]

Court with the sole authority to make such declarations.

Insofar as second or successive petitions are concerned, the

statute’s precedent-limiting provision, fairly read, eliminates

the lower federal courts’ role in deeming new rules of constitutional law a permissible basis for habeas relief. . . . Consequently, an application to file a second or successive habeas

petition must point to a Supreme Court decision that either

expressly declares the collateral availability of the rule (such

as by holding or stating that the particular rule upon which the

petitioner seeks to rely is retroactively available on collateral

review) or applies the rule in a collateral proceeding.”

Petitioner asserted that either of two cases demonstrated

that Cage had been made retroactive by the Court. One of the

cases predated Cage, and the court concluded it could not be

used to show that Cage had been applied retroactively by the

Supreme Court. The other case involved a memorandum

decision by the Court, Adams v. Evatt, 511 U.S. 1001 (1994),

to vacate and remand for reconsideration (in light of another

Supreme Court case) a Fourth Circuit decision that held Cage

did not apply retroactively for purposes of Teague v. Lane, 489

U.S. 288 (1989). The Fourth Circuit then held that Cage was

retroactively applicable on collateral review for Teague purposes. Petitioner argued that the “vacation and remand were

tantamount to a reversal of the Fourth Circuit, and . . . thereby

operates as a de facto declaration that Cage applies retroactively.” The court here disagreed, reasoning that “a summary

reconsideration order does ‘not amount to a final determination on the merits.’ . . . Such an order merely directs the lower

court to reexamine the case against the backdrop of some

recent, intervening precedent; it does not compel a different

result.” Thus, Cage was not made retroactive “by the Supreme

Court,” and the court denied authorization to file a successive

petition.

Rodriguez v. Bay State Corr. Ctr., 139 F.3d 270, 272–76 (1st

Cir. 1998). Accord In re Smith, No. 97-00552 (5th Cir. May 28,

1998) (Barksdale, J.) (holding Cage has not been made retroactive: “we join those other circuits holding that an application to file a second or successive habeas petition must point

to a Supreme Court decision that either expressly declares the

collateral availability of the rule (such as by holding or stating

that the particular rule upon which the petitioner seeks to rely

is retroactively available on collateral review) or applies the

rule in a collateral proceeding”). But see Nevius v. Sumner, 105

F.3d 453, 462 (9th Cir. 1996) (without ruling on merits of

applicant’s claim that Adams made Cage retroactive, concluding that claim was sufficient “prima facie showing” required

for filing successive petition).

One-Year Limitation Period

Third Circuit holds that limitation period is tolled when

petitioner files an application for post-conviction relief

according to the procedural rules of the state, and that

district court should not investigate application’s merits.

With some exceptions, a state prisoner usually must file for

federal habeas relief under the AEDPA within one year of “the

date on which the [state court] judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review.” 28 U.S.C. § 2244(d)(1)(A). However,

“[t]he time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.”

§ 2244(d)(2).

In this case, petitioner was originally sentenced in 1988.

After his conviction was affirmed on direct appeal, he filed a

petition for post-conviction relief under Pennsylvania’s Post

Conviction Relief Act (PCRA). That petition was denied, and

a second PCRA petition was dismissed in 1995. His petition for

allowance of appeal was denied by the Pennsylvania Supreme

Court on Sept. 26, 1996. The current federal petition for

habeas relief was filed on July 30, 1997. The district court

dismissed the petition as time-barred under § 2244(d)(1),

without discussing § 2244(d)(2). Petitioner then requested a

certificate of appealability to appeal the dismissal.

The appellate court had to decide whether petitioner’s

second PCRA petition, including the petition for allowance of

appeal, was “a properly filed application for State post-conviction or other collateral review” under § 2244(d)(2), such that

the one-year period of limitation was tolled. The court concluded “that ‘a properly filed application’ is one submitted

according to the state’s procedural requirements, such as the

rules governing the time and place of filing. . . . If a petitioner

complies with these procedural requirements, or other procedural requirements the state imposes, his petition, even a

second or successive petition, is ‘a properly filed application’

for purposes of § 2244(d)(2). . . . Further, we reject the notion

that a meritless PCRA petition cannot constitute ‘a properly

filed application’ under § 2244(d)(2). Rather, in considering

whether a petition for post-conviction relief is properly filed,

district courts should not inquire into its merits. . . . After all,

Congress chose the phrase ‘a properly filed application,’ one

into which we do not read any requirement that the application be non-frivolous.” See also Hughes v. Irvin, 967 F. Supp.

775, 778 (E.D.N.Y. 1997) (“properly filed” under

§ 2244(d)(1) means “submitted in accordance with any applicable procedural requirements”).

Therefore, because petitioner’s second PCRA petition was

pending until Sept. 26, 1996, his “one-year period did not
6 Habeas & Prison Litigation Case Law Update, number 12, June 1998• a publication of the Federal Judicial Center

expire until September 26, 1997,” his July 1997 habeas filing

was “well within § 2244(d)(1)’s time limitation, and the district court erred in dismissing it as untimely.”

Lovasz v. Vaughn, 134 F.3d 146, 148–49 (3d Cir. 1998). See

alsoCox v. Angelone, No. CIV. A. 3:97CV925 (E.D. Va. Mar. 11,

1998) (Merhige, J.) (following § 2244(d)(2), holding that

§ 2254 petition filed Dec. 10, 1997, was timely—although

petitioner’s one-year grace period would have ended Apr. 24,

1997, the period his state habeas petition was pending, Mar. 3

to Oct. 31, 1997, is excluded from the calculation).

Seventh Circuit holds that § 2255 petition should be

consolidated with, not preempted by, other post-conviction motions to ensure that one-year period does not run

out. Defendant filed a motion for new trial under Fed. R. Crim.

P. 33, which was denied by the district court. While his appeal

of that denial was pending, he filed a §2255 petition one week

before the end of the one-year period allowed under the AEDPA

to file such a petition. The district court dismissed the petition,

following circuit precedent that only extraordinary circumstances justify entertaining a collateral attack while another

proceeding that might reverse the conviction is under consideration.

The appellate court vacated the dismissal and remanded.

“The district court relied on a principle that as originally

articulated was limited to direct appeals from the conviction

and sentence. . . . We have never considered whether the same

approach is best when the appeal concerns the denial of a posttrial motion. Perhaps the question has not arisen because it did

not matter before the AEDPA. A prisoner may select from a

palette of post-trial motions the one that best suits his circumstances, and if more than one is made at the same time the

court can and should consider them together. Consolidation

is harder if the decision concerning one motion is on appeal

when the second reaches the district court, but until the AEDPA

the prisoner could wait to file the second. No longer. Now

delay can be dispositive.”

“Priority now must go to petitions under § 2255, for once

the direct appeal ends the clock starts ticking. Treating all

issues together still makes sense, and it remains a poor use of

judicial resources to have separate challenges to a conviction

pending at the same time, but it is no longer appropriate to

achieve these benefits by denying the § 2255 motion, as opposed to consolidating all of the defendant’s motions or, when

that is not possible, deferring action on the § 2255 petition

until the appeal is over. Today a district court that receives a

Rule 33 motion during the year after the conviction has

become final should ask the defendant whether he plans to file

a §2255 petition addressing other issues. If the answer is ‘yes,’

the judge should defer adjudication of the Rule 33 motion so

that all issues may be taken up together. Any other course

fractures the case into slivers, jeopardizes the defendant’s

opportunity for one complete collateral attack, or both.”

“A district court sometimes may find it prudent to grant or

deny a § 2255 petition on the merits, even if some other postjudgment motion is pending. Congress expressed in the

AEDPA a strong preference for swift and conclusive resolution

of collateral attacks. A petition should be granted at once if it

is clearly meritorious . . . . A petition should be denied at once

if the issues it raises clearly have been forfeited or lack merit

under established law. Only the more difficult petitions,

whose evaluation requires an evidentiary hearing or a substantial investment of judicial time, should be deferred.”

O’Connor v. United States, 133 F.3d 548, 550–51 (7th Cir.

1997).

Third Circuit applies “mailbox rule” to habeas petitions; also holds that any petition filed before April 23,

1997, was timely. Petitioner’s state conviction became final

Sept. 21, 1995. On April 22, 1997, he submitted a § 2254

petition to prison officials for mailing to the federal district

court. The petition was received by the clerk of the court on

April 28, 1997, and docketed May 5. The district court

dismissed the petition as untimely under § 2244(d), finding

that it had not been filed within the one-year limitation period,

which the court considered to end on April 23, 1997. The

court declined to extend to habeas petitions the ruling of

Houston v. Lack, 487 U.S. 266 (1988) (pro se prisoners’ notices

of appeal are considered filed when given to prison authorities

for mailing to district court).

The appellate court reversed and remanded for the district

court to consider the petition. The court first agreed with

several others that “applying § 2244(d)(1) to bar the filing of

a habeas petition before April 24, 1997, where the prisoner’s

conviction became final before April 24, 1996, would be

impermissibly retroactive. Even under § 2244(d)(1)’s time

limitation, would-be petitioners are afforded one full year to

prepare and file their habeas petitions, and as of April 24,

1996, have been placed on notice of this time constraint. We

reject the notion that petitioners whose state court proceedings concluded before April 24, 1996, should be afforded less

than one year with notice. Accordingly, we hold that habeas

petitions filed on or before April 23, 1997, may not be

dismissed for failure to comply with § 2244(d)(1)’s time

limit.” Accord Calderon v. United States Dist. Ct. for Cent. Dist.

of Cal., 128 F.3d 1283, 1287 (9th Cir. 1997); Lindh v. Murphy,

96 F.3d 856, 866 (7th Cir. 1996) (same, for §§ 2254 and 2255),

rev’d on other grounds, 117 S. Ct. 2059 (1997); Cox v. Angelone,

No. CIV. A. 3:97CV925 (E.D. Va. Mar. 11, 1998) (Merhige, J.);

Parker v. Johnson, 988 F.3d 1474, 1475 (N.D. Ga. 1998). But see

Robles v. Senkowski, No. 97 Civ. 2798 (S.D.N.Y. Apr. 2, 1998)

(Cedarbaum, Sr. J.) (under “reasonable time” test of Peterson

v. Demskie, 107 F.3d 92 (2d Cir. 1997), petition filed more than

five years after conviction was final and “334 days after April

24, 1996, was not filed within a reasonable period”).

The court added that the same rule should apply to the oneyear limit for §2255 petitions. “Federal prisoners challenging

their sentences, no less than state prisoners seeking habeas

relief, are entitled to one full year with notice to file such

motions. Thus, §2255 motions filed on or before April 23,

1997, may not be dismissed for failure to comply with §2255’s

one-year period of limitation.” Accord United States v. Flores,
Habeas & Prison Litigation Case Law Update, number 12, June 1998 • a publication of the Federal Judicial Center 7

135 F.3d 1000, 1005–06 (5th Cir. 1998) (“one year, commencing on April 24, 1996, presumptively constitutes a reasonable

time for those prisoners whose convictions had become final

prior to the enactment of the AEDPA to file for relief under 28

U.S.C. §2255”); United States v. Simmonds, 111 F.3d 737, 746

(10th Cir. 1997) (same); Landa v. United States, 991 F. Supp.

866, 868 (E.D. Mich. 1998) (same).

The court then held that Houston should be applied to

habeas petitions. “Since the enactment of §2244(d), at least

one court has applied Houston to a motion under §2244(b)(3)

for authorization to file a second or successive §2255 motion.

In re Sims, 111 F.3d 45[, 47] (6th Cir. 1997). In so doing, the

court stated that ‘for purposes of the one-year limitation

periods established by § 2244(d),’ a § 2244(b)(3) motion is

deemed filed on the date that the motion is given to prison

authorities for mailing.” Concluding that, as in other situations where Houston has been applied, a habeas petitioner

“remains entirely at the mercy of prison officials,” the Third

Circuit held “that a pro se prisoner’s habeas petition is deemed

filed at the moment he delivers it to prison officials for mailing

to the district court. And because we see no reason why federal

prisoners should not benefit from such a rule, and for the

purposes of clarity and uniformity, we extend this holding to

the filing of motions under § 2255.”

Burns v. Morton, 134 F.3d 109, 112–13 (3d Cir. 1998). See

also United States v. Dorsey, 988 F. Supp. 917, 920 (D. Md.

1998) (treating § 2255 motion “as filed when it was delivered

to prison authorities for forwarding by depositing it in the

prison mailbox”); Hughes v. Irvin, 967 F. Supp. 775, 778

(E.D.N.Y. 1997) (same, for § 2254 petition). A panel of the

Eighth Circuit also applied the mailbox rule to a § 2254

petitioner, but that opinion was recently vacated pending

rehearing en banc. See Nichols v. Bowersox, No. 97-3639 (8th

Cir. Apr. 3, 1998), vacated pending reh’g en banc (May 19,

1998). Cf. United States ex rel. Barnes v. Gilmore, 987 F. Supp.

677, 679–82 (N.D. Ill. 1997) (applying mailbox rule to § 2254

petition, but holding that petition would be denied as untimely because petitioner filed bad faith in forma pauperis

application and failed to pay required $5 filing fee within oneyear limitation period).

Retroactivity

D.C. Circuit holds that, where one § 2255 motion was filed

before the AEDPA, application of AEDPA standard for bringing second motion was not impermissibly retroactive

when defendant could not meet pre-AEDPA standard. Before the AEDPA was enacted and while his direct appeal was

pending, defendant filed a § 2255 motion claiming ineffective assistance of trial counsel. That motion was denied and

he did not appeal the denial. After the AEDPA took effect,

defendant’s convictions were affirmed on direct appeal.

Shortly thereafter he moved for authorization to file a second

§ 2255 motion, claiming ineffective assistance of appellate

counsel. He contended that applying the AEDPA’s standards for

filing a second motion would be impermissibly retroactive

because his second claim was not available at the time he filed

his first § 2255 motion. Alternatively, he argued that he met

the new standard.

The appellate court concluded that “the new standards and

procedures under AEDPA for filing §2255 motions could only

be improperly retroactive as applied to Ortiz if he would have

met the former cause-and-prejudice standard . . . and previously would have been allowed to file a second §2255 motion,

but could not file a second motion under AEDPA. Although we

agree with the parties that Ortiz can show cause, we conclude

that he cannot show prejudice and, consequently, that he

cannot demonstrate that applying the new AEDPA standards to

his claims would be impermissibly retroactive.” The court also

found that defendant could not meet the AEDPA standards for

filing a second § 2255 motion and denied authorization.

United States v. Ortiz, 136 F.3d 161, 165–67 (D.C. Cir.

1998). See also In re Sonshine, 132 F.3d 1133, 1135 (6th Cir.

1997) (following similar test to find AEDPA did not have

impermissible retroactive effect on second § 2255 motion;

also limited holding of In re Hanserd, 123 F.3d 922 (6th Cir.

1997) [Habeas & Prison Lit. Update #9], which held specifically that legitimate claim under Bailey v. United States, 116 S.

Ct. 501 (1995), could be brought in second, post-AEDPA

§ 2255 motion after denial of pre-AEDPA, pre-BAILEY motion,

but had also indicated generally that federal prisoners only

had to satisfy AEDPA’s requirements if they had filed a previous

§ 2255 motion post-AEDPA).

Exhaustion of Remedies

Third Circuit vacates grant of habeas relief on

unexhausted claims. In 1992, petitioner was convicted of

first-degree murder and sentenced to life in prison. Various

post-trial motions and appeals were filed and rejected, and the

Pennsylvania Supreme Court denied her direct appeal July 2,

1996. She did not pursue collateral relief through the Pennsylvania Post Conviction Relief Act (PCRA).

In September, petitioner began her federal habeas action,

which included her prior claims and several new grounds for

relief. Although the state argued that petitioner had not

exhausted her state remedies and that it did not waive the

exhaustion requirement, the district court found that the

unusual circumstances of the case warranted allowing discovery and holding an evidentiary hearing. In April 1997, the

court granted the petition after concluding that petitioner had

exhausted her state remedies because 1995 amendments to

the PCRA had left her without a state forum in which to raise

her claims of actual innocence and prosecutorial misconduct.

See 28 U.S.C. § 2254(b)(1)(B)(i). The court also concluded

that to the extent that there may be claims that a state court

would view as not being waived, the state proceedings

would be ineffective to protect petitioner’s rights. See

§ 2254(b)(1)(B)(ii).

Concluding that Supreme Court precedent and the AEDPA

require petitioner to present her unexhausted claims in state

court, the appellate court vacated and remanded. “The Su-
Habeas & Prison Litigation Case Law Update, no. 12, June 1998

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

preme Court has made clear that a section 2254 petition which

includes unexhausted as well as exhausted claims, i.e., a

mixed petition, must be dismissed without prejudice. Rose v.

Lundy, 455 U.S. 509, 522 . . . (1982).” The Court later held that,

if a state failed to raise the nonexhaustion defense in the

district court, the appellate court should consider whether, in

that case, the interests of justice would be served by requiring

exhaustion or, if “perfectly clear” that petitioner has no

colorable claim, addressing the merits of the petition. See

Granberry v. Greer, 481 U.S. 129, 134–35 (1987).

The appellate court found that some of the provisions in the

AEDPA are derived from Granberry. For one, § 2254(b)(3)

requires that a state “expressly” waive the exhaustion requirement. Second, § 2254(b)(2) gives district courts the authority

to deny a habeas petition on the merits despite a petitioner’s

failure to exhaust state remedies. These sections do not,

however, provide a standard for when a court should dismiss

a petition on the merits rather than require complete exhaustion, so the appellate court used Granberry to conclude that it

must be “perfectly clear that the applicant does not raise even

a colorable federal claim” to waive the exhaustion requirement. Because “section 2254(b)(2) does not provide the

district court with the authority to grant relief on the merits

where the petitioner fails to exhaust state remedies . . . , a strict

reading of the statute compels us to conclude that if a question

exists as to whether the petitioner has stated a colorable

federal claim, the district court may not consider the merits of

the claim if the petitioner has failed to exhaust state remedies

and none of the exceptions set forth in sections

2254(b)(1)(B)(i) and (ii) applies.” (Emphasis added.)

Examining the facts of the case and the amended PCRA, the

appellate court concluded that “we cannot say that requiring

Lambert to seek review of her claims in the state courts is

futile.” Thus, the exceptions to exhaustion in § 2254(b)(1)(B)

do not apply and “we will vacate the order of the district court

granting the petition for writ of habeas corpus and remand to

the district court with the direction to dismiss the petition

without prejudice.”

Lambert v. Blackwell, 134 F.3d 506, 510–25 (3d Cir. 1997).

Note to readers: Summaries of prison litigation cases will resume in the next issue.
Habeas&PrisonLitigationCaseLawUpdate

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • number 13, September 1998

Habeas & Prison Litigation Case Law Update is distributed periodically by the Federal Judicial Center to inform judges and other judicial branch

personnel of selected federal court decisions interpreting the 1996 federal legislation on habeas petitions and prison litigation. Any analyses or

interpretations of the case law are those of the Center staff who prepare the summaries.

Habeas Corpus

Certificate of Appealability

Supreme Court holds that it has jurisdiction to review denial

of certificate of appealability. Petitioner had filed a motion

under 28 U.S.C. § 2255 that was denied by the district court.

He appealed, but the appellate court declined to issue a

certificate of appealability. He then petitioned the Supreme

Court for a writ of certiorari. Reversing its earlier position, the

government agreed with petitioner that his claim merited a

certificate of appealability and asked the Court to vacate and

remand. To do so, the Court first had to establish that it had

jurisdiction over the case.

“Cases in the courts of appeals may be reviewed by the

Supreme Court . . . (1) By writ of certiorari granted upon the

petition of any party to any civil or criminal case, before or

after rendition of judgment or decree.” 28 U.S.C. § 1254.

“There can be little doubt that Hohn’s application for a

certificate of appealability constitutes a case under § 1254(1).

As we have noted, ‘[t]he words “case” and “cause” are constantly used as synonyms in statutes . . . , each meaning a

proceeding in court, a suit, or action.’ . . . The dispute over

Hohn’s entitlement to a certificate falls within this definition.

It is a proceeding seeking relief for an immediate and

redressable injury, i.e., wrongful detention in violation of the

Constitution. There is adversity as well as the other requisite

qualities of a ‘case’ as the term is used in both Article III of the

Constitution and the statute here under consideration.”

“We also draw guidance from the fact that every Court of

Appeals except the Court of Appeals for the District of Columbia Circuit has adopted Rules to govern the disposition of

certificate applications. . . . These directives would be meaningless if applications for certificates of appealability were not

matters subject to the control and disposition of the courts of

appeals. . . . In this instance, as in all other cases of which we

are aware, the order denying the certificate was issued in the

name of the court and under its seal. That is as it should be, for

the order was judicial in character and had consequences with

respect to the finality of the order of the District Court and the

continuing jurisdiction of the Court of Appeals.”

The Court found further support for its holding in the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Section 2244(b)(3)(E) provides that “[t]he grant or

denial of an authorization by a court of appeals to file a second

or successive application shall not be appealable and shall not

be the subject of a petition for rehearing or for a writ of

certiorari.” (Emphasis added.) “It would have been unnecessary to include a provision barring certiorari review if a motion

to file a second or successive application would not otherwise

have constituted a case in the court of appeals for purposes of

28 U.S.C. §1254(1).”

“Inclusion of a specific provision barring certiorari review

of denials of motions to file second or successive applications

is instructive for another reason. The requirements for certificates of appealability and motions for second or successive

applications were enacted in the same statute. The clear limit

on this Court’s jurisdiction to review denials of motions to file

second or successive petitions by writ of certiorari contrasts

with the absence of an analogous limitation to certiorari

review of denials of applications for certificates of appealability. True, the phrase concerning the grant or denial of second

or successive applications refers to an action ‘by a court of

appeals’; still, we think a Congress concerned enough to bar

our jurisdiction in one instance would have been just as

explicit in denying it in the other, were that its intention.”

“In light of the position asserted by the Solicitor General in

the brief for the United States filed August 18, 1997, the

decision of the Court of Appeals is vacated and remanded for

further consideration.”

Hohn v. United States, 118 S. Ct. 1969, 1972–78 (1998)

(three Justices dissented).

Fifth Circuit holds that Bailey claim makes “a substantial

showing of the denial of a constitutional right” so as to

warrant granting a COA. Defendant pled guilty to using or

carrying a firearm during a drug-trafficking offense, 18 U.S.C.

§ 924(c)(1). After the Supreme Court narrowed the definition

of “use” in the statute, see Bailey v. United States, 516 U.S. 137

(1995), defendant filed a motion under 28 U.S.C. § 2255. He

claimed that, in light of Bailey, he was wrongly convicted

under the “use” prong of § 924(c)(1) because the district court

did not develop an adequate factual basis to support his guilty

plea. The district court denied the motion and declined to

grant a certificate of appealability which, under § 2253(c)(2),

requires an applicant for a COA to make “a substantial showing

of the denial of a constitutional right.”

Defendant appealed to the appellate court, which granted

the COA, vacated his conviction, and remanded to the district

court for the entry of a new plea. “Even though Bailey itself is

a statutory, non-constitutional case, it does not necessarily

follow that a prisoner’s post-Bailey petition for collateral relief
2 Habeas & Prison Litigation Case Law Update, number 13, September 1998• a publication of the Federal Judicial Center

sounds in statutory, non-constitutional law. We conclude, in

fact, that the claim falls squarely within the ambit of the Fifth

Amendment. . . . We have stated that if a defendant has been

convicted of a criminal act that becomes no longer criminal,

such a conviction cannot stand. After all, a refusal to vacate a

sentence where a change in the substantive law has placed the

conduct for which the defendant was convicted beyond the

scope of a criminal statute would result in a complete miscarriage of justice. Our sister circuits have held that a fundamental defect resulting in a complete miscarriage of justice is

tantamount to a violation of the Due Process Clause of the

Fifth Amendment. . . . Gobert maintains that he was convicted

and imprisoned for engaging in conduct that the Supreme

Court has since deemed non-criminal. If he is correct, our

refusal to vacate his sentence would result in a complete

miscarriage of justice; such a result would offend the Due

Process Clause of the Fifth Amendment. The foregoing authorities make it clear to us that James Gobert has made a

substantial showing of the denial of his constitutional rights

to due process, notwithstanding that Bailey announced

merely a new statutory interpretation. Accordingly, we issue a

COA and advance to the merits of his claim.”

On the merits, the court held that “the factual basis [underlying Gobert’s guilty plea] is devoid of evidence that he or [a

coconspirator] used or carried the pistol in relation to the

underlying drug offense. . . . Accordingly, it was clear error for

the district court to have accepted James Gobert’s guilty plea,”

which requires remand for the entry of a new plea.

United States v. Gobert, 139 F.3d 436, 438–41 (5th Cir.

1998). Note that, before being vacated by the Supreme Court,

the Eighth Circuit held that a petitioner making a Bailey claim

could not receive a COA “because the petitioner is not making

a constitutional claim: He is making a claim to a federal

statutory right. Bailey did no more than interpret a statute, and

an incorrect application of a statute by a district court, or any

other court, does not violate the Constitution.” Hohn v. United

States, 99 F.3d 892, 893 (8th Cir. 1996) (one judge dissented),

vacated by 118 S. Ct. 1969 (1998), supra.

Second or Successive Petition

Fifth Circuit holds that “good-time” credit claims that do not

challenge validity of conviction or sentence are not successive petitions under § 2244. A state prisoner sought permission from the appellate court under 28 U.S.C. § 2244(b)(3) to

file two different habeas petitions challenging prison disciplinary convictions that resulted in the loss of good conduct

time. He had previously filed two federal habeas petitions, one

challenging the good conduct time policy of the Texas Department of Criminal Justice (“TDCJ”), the other challenging his

original state conviction. The court concluded that the prisoner could file his current petitions because they did not fall

within the statute’s definition of restricted habeas petitions

that required appellate court permission.

The court found that the AEDPA “does not define what

constitutes a ‘second or successive’ application. Nevertheless,

a prisoner’s application is not second or successive simply

because it follows an earlier federal petition. Instead, section

2244 . . . was enacted primarily to preclude prisoners from

repeatedly attacking the validity of their convictions and

sentences. Thus, a later petition is successive when it: 1) raises

a claim challenging the petitioner’s conviction or sentence that

was or could have been raised in an earlier petition; or 2)

otherwise constitutes an abuse of the writ.”

“Under this understanding of the Act, Cain’s current petitions are not successive. In these petitions, Cain seeks relief

from two post-conviction and post-sentence administrative

actions taken by his prison board, contending that he was

stripped of his good-time credits without due process of law.

Rather than attacking the validity of his conviction or sentence, Cain’s petitions focus on the administration of his

sentence. . . . Moreover, Cain’s current petitions do not present

claims that were or could have been raised in his earlier

petitions.”

The court’s conclusion “is bolstered by the fact that a

prisoner may seek redress for the loss of good-time credits

only through a habeas petition. . . . Under a contrary holding,

if a prisoner has previously filed a petition challenging his

conviction or sentence, any subsequent petition challenging

the administration of his sentence will necessarily be barred by

28 U.S.C. § 2244(b), notwithstanding the possibility that the

events giving rise to this later application may not have

occurred until after the conclusion of the earlier habeas

proceeding. . . . Consequently, we hold that Congress did not

intend for the interpretation of the phrase ‘second or successive’ to preclude federal district courts from providing relief

for an alleged procedural due process violation relating to the

administration of a sentence of a prisoner who has previously

filed a petition challenging the validity of his petition or

sentence, but is nevertheless not abusing the writ.”

U.S. v. Cain, 137 F.3d 234, 235–36 (5th Cir. 1998) (per

curiam). Cf. In re Jones, 127 F.3d 1271, 1273–74 (11th Cir.

1998) (per curiam) (denying request to file second petition

challenging conviction and death sentence, holding that claim

that execution by electric chair violates Eighth Amendment is

not cognizable under § 2244(b)(2) because that section does

not apply to claims related to a defendant’s sentence).

Standard of Review

Eleventh Circuit outlines standard of review under

§ 2254(d)(1). After being denied relief in state court, petitioner filed a federal habeas action. She alleged that the state

courts’ adjudication of her claims “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law as determined by the Supreme

Court,” § 2254(d)(1). The district court denied the petition,

and the appellate court was left to “construe the meaning of

[§ 2244(d)(1)] consistent with Congress’ intent, this being a

question of first impression in this circuit.”

Starting with the phrase “clearly established,” the court

determined that “the first step in resolving a petitioner’s claim
Habeas & Prison Litigation Case Law Update, number 13, September 1998•a publication of the Federal Judicial Center 3

is to determine the ‘clearly established’ law at the relevant

time.” Based on Supreme Court precedent that considered

similar language, “a district court evaluating a habeas petition

under § 2254(d) should ‘survey the legal landscape’ at the time

the state court adjudicated the petitioner’s claim to determine

the applicable Supreme Court authority; the law is ‘clearly

established’ if Supreme Court precedent would have compelled a particular result in the case.”

Regarding the “contrary to” language, “we can readily

think of two situations in which a state court decision would

be ‘contrary to’ clearly established Supreme Court case law.

The first is when a state court faces a set of facts that is

essentially the same as those the Supreme Court has faced

earlier, but given these facts the state court reaches a different

legal conclusion than that of the Supreme Court. A second

situation is one in which a state court, in contravention of

Supreme Court case law, fails to apply the correct legal

principles to decide a case. Such a result would be ‘contrary’ in

the sense that the state court has not adjudicated the claim in

the manner prescribed by the Supreme Court. . . . In either

case, the federal court reviewing a petition under § 2254

independently determines what is ‘clearly established Federal

law as determined by the Supreme Court’ and may grant

habeas relief if the state court has decided a question of law

incorrectly.”

“If the state court has applied the proper law, the federal

court must then determine whether the state court’s application of that law was ‘unreasonable.’ By its very language,

‘unreasonable application’ refers to mixed questions of law

and fact, when a state court has ‘unreasonably’ applied clear

Supreme Court precedent to the facts of a given case. . . . What

does it mean to say that a state court has ‘unreasonably’ applied

the proper law? It does not mean that a federal court may grant

habeas relief simply because it disagrees with the state court’s

decision. This would amount to de novo review, which Congress clearly did not intend.” The court adopted the standard

of Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), that

relief may be granted “only if a state court decision is so clearly

incorrect that it would not be debatable among reasonable

jurists.” See also Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.

1997) (agreeing with that proposition and adding: “As to more

debatable factual determinations, ‘the care with which the

state court considered the subject’ may be important. . . . ‘[A]

responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment.’” (quoting

Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996) (en banc))).

In the case at hand, the court held that, on petitioner’s first

claim, the state court did not unreasonably apply the relevant

federal law in denying relief. On the second claim, the state

court’s analysis of the issue was found to be “contrary to”

clearly established federal law; however, after de novo review

the appellate court also concluded that petitioner was not

entitled to relief on that claim and upheld the district court’s

denial of her petition.

Neelley v. Nagle, 138 F.3d 917, 922–27 (11th Cir. 1998).

One-Year Limitation Period

Third Circuit holds that one-year time limit is subject to

equitable tolling. On June 4, 1997, petitioner sought an

extension of time from the district court to file a § 2254

petition. His state conviction became final in June 1995, so

under Third Circuit case law he had until April 23, 1997 to file.

The district court denied the request as untimely under

§ 2244(d)(1). Petitioner claimed that, under the circumstances, the one-year limit should be equitably tolled: he was

delayed in filing his petition because he was in transit between

various institutions and did not have access to his legal

documents until April 2, 1997, and he did not learn of the new

limitation period until April 10, 1997.

Agreeing with Calderon v. United States Dist. Court for

Central Dist. of Cal., 128 F.3d 1283 (9th Cir. 1997) (see Habeas

& Prison Litig. Update # 8), the appellate court held that

§2244 may be tolled and remanded for the district court to

consider petitioner’s claim. “Time limitations analogous to a

statute of limitations are subject to equitable modifications

such as tolling . . . . On the other hand, when a time limitation

is considered jurisdictional, it cannot be modified and noncompliance is an absolute bar. . . . In determining whether a

specific time limitation should be viewed as a statute of

limitations or a jurisdictional bar, we look to congressional

intent by considering the language of the statute, legislative

history, and statutory purpose.”

“As the Ninth Circuit recognized, the language of AEDPA

clearly indicates that the one year period is a statute of

limitations and not a jurisdictional bar. . . . First, § 2244(d)(1)

refers to the one year as a ‘period of limitation’ and a ‘limitation

period,’ and does not use the term ‘jurisdiction.’ . . . Moreover,

the statute affirmatively separates the time limitation provision from the section that deals with jurisdiction. Section

2244(d)(1), the limitation provision, only speaks in terms of

a one year filing period and does not purport to limit the

jurisdiction of the district courts in any way. Similarly, § 2241,

the provision in which Congress explicitly grants jurisdiction

to the district courts, does not reference the timely-filing

requirement. . . . The legislative history reinforces this conclusion. The congressional conference report does not refer to

jurisdiction, . . . and statements by various members of

Congress refer to the period as a statute of limitations.”

“Such an interpretation is also consistent with the statutory

purpose of AEDPA. The statute was enacted, in relevant part, to

curb the abuse of the writ of habeas corpus. . . . Construing

§ 2244(d)(1) as a statute of limitation clearly serves this

purpose. It provides a one year limitation period that will

considerably speed up the habeas process while retaining

judicial discretion to equitably toll in extraordinary circumstances.”

To provide guidance to the district court in considering the

tolling issue on remand, the court noted “that equitable tolling

is proper only when the ‘principles of equity would make [the]

rigid application [of a limitation period] unfair.’ . . . Generally,

this will occur when the petitioner has ‘in some extraordinary
4 Habeas & Prison Litigation Case Law Update, number 13, September 1998• a publication of the Federal Judicial Center

way . . . been prevented from asserting his or her rights.’ . . . The

petitioner must show that he or she ‘exercised reasonable

diligence in investigating and bringing [the] claims.’ . . . Mere

excusable neglect is not sufficient.” The court added that “the

one year period of limitation for §2255 cases is also subject to

equitable tolling.”

Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 617–

19 & n.1 (3d Cir. 1998). Accord Henderson v. Johnson, 1 F. Supp.

2d 650, 654–56 (N.D. Tex. 1998) (holding “that §2244(d)(1)

is a statute of limitations that is subject to equitable tolling, not

a jurisdictional bar” and setting forth factors to consider;

however, petitioners’ reasons for not meeting time limit—for

one, that another inmate agreed to file the petition for him and

fraudulently represented that he had; for the other, that he did

not have professional legal assistance, did not know what to

do, and that an inmate who had been assisting him left—did

not warrant tolling); Parker v. Bowersox, 975 F. Supp. 1251,

1252–54 (W.D. Mo. 1997) (for petitioner whose petition was

given to prison authorities for mailing before §2244(d)(1)

deadline but not received at court until after, holding that

“[p]rinciples of equity and fairness require that equitable

tolling should be applied to this case” and petition is considered timely filed—“§2244(d)(1)’s statute of limitations is not

jurisdictional, but is subject to equitable tolling”). Cf. United

States ex rel. Galvan v. Gilmore, 997 F. Supp. 1027, 1026 (N.D.

Ill. 1998) (although ultimately denying petition, citing

Calderon and Parker in holding that “since § 2244(d) does not

affect this court’s subject matter jurisdiction over habeas

petitions, . . . the state can waive the timeliness issue by failing

to raise it”).

Prison Litigation

Proceedings in forma pauperis

Seventh Circuit holds §1915(b) constitutional and declares

that “income” means “all deposits” made to prisoner’s trust

account. Plaintiff tendered his complaint to the district court

before the Prison Litigation Reform Act (PLRA) was enacted. In

its discretion, the court ordered plaintiff to pay $18 toward the

filing fee. When he refused, the court declined to file his

complaint, and plaintiff appealed. Because the notice of appeal

was filed after the effective date of the PLRA, the district court

assessed a partial fee under 28 U.S.C. §1915(b). In his appeal,

plaintiff contended that §1915(b) is unconstitutional because

it blocks indigent prisoners’ access to the courts and improperly distinguishes between prisoners and other litigants. The

Seventh Circuit joined “seven other circuits in holding that

§ 1915(b) as amended by the PLRA is within Congress’ power

under the Constitution.” Section 1915(b)(4) affords access to

prisoners who have “no assets and no means by which to pay

the initial partial filing fee.” And plaintiff’s argument that

§ 1915(b) violates equal protection is equally as unpersuasive

as it was in Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997), which

dealt with a different section of the Act.

The court of appeals noted that only 2.5% of deposits to

plaintiff’s account had been paid to the district court and

observed that if the prison had sent 20% as required by the

statute, the full appellate filing fee would already have been

collected. An examination of the trust account’s current statement “implies that the prison believes that only earned income is subject to the PLRA.” The court found that “Congress

did not define the term ‘income’ in § 1915(b), but it used

several related terms: ‘income,’ ‘deposits,’ and ‘amount in the

account.’ These seem to be used as synonyms, which implies

that ‘income’ means ‘all deposits.’” Thus, a prison is required

to forward “20% of whatever sums enter a prison trust account, disregarding the source.” Since plaintiff would already

have paid the filing fee in full had the prison complied with the

statute, the Seventh Circuit directed that the prison pay over

to the district court “all of [plaintiff’s] income (other than

sums subject to other court orders) until the $105 has been

paid in full.” The court emphasized that a “prisoner who fails

to ensure that the required sum is remitted in one month must

make it up later; the statute does not allow deferral past the

time when application of the formula would have produced

full payment.”

Lucien v. DeTella, 141 F.3d 773, 775–76 (7th Cir. 1998).

D.C. Circuit holds that §1915 is constitutional. On March

18, 1996, plaintiff filed a pro se civil action under 42 U.S.C.

§1983 and applied for in forma pauperis (IFP) status. The

prison accounting department certified that as of January 12,

1996, plaintiff had no money in his trust account. After

granting the IFP application, the district court sua sponte

dismissed the complaint under former 28 U.S.C. § 1915(d) as

being “without basis in law or in fact.” Plaintiff filed his notice

of appeal after the PLRA became effective. The D.C. Circuit

allowed him to proceed IFP but ordered him to submit his trust

account report and a consent to collection of fees from the

account and to pay the appropriate portion of the filing fee.

Plaintiff refused and moved for reconsideration, arguing that

the PLRA’s filing-fee provision (§ 1915) is unconstitutional.

The court of appeals appointed an amicus curiae to argue the

constitutional question. It underscored that even though

plaintiff was no longer incarcerated, his constitutional challenge remained alive and, as the court held in In re Smith, 114

F.3d 1247, 1249 (D.C. Cir. 1997), his “‘release from prison

does not relieve [a former prisoner] of past due obligations

under the PLRA.’”

The amicus argued that the filing-fee provision denied

plaintiff’s due process right of access to the courts and discriminated against prisoners in violation of equal protection.

The D.C. Circuit joined several other circuits in holding that

the provision does not deny prisoners effective access. Under
Habeas & Prison Litigation Case Law Update, number 13, September 1998•a publication of the Federal Judicial Center 5

§ 1915(b)(4), even a destitute prisoner may file suit without

paying an initial fee. Also, only modest payments are required.

The court rejected the amicus’ further argument that the

filing-fee provision “as applied” to plaintiff was unconstitutional because it forced him “to choose between filing a lawsuit

and being able to buy the necessities of life.”

The court also agreed with four other circuits that the PLRA

does not violate equal protection by discriminating against

prisoners. The Act is not subject to strict scrutiny and meets

the rational-basis test: “Congress legitimately could have

determined that requiring indigent prisoners to pay the ordinary filing fee . . . would decrease the amount of meritless

litigation by causing prisoners to internalize the cost of filing

their lawsuits.” In addition, there are rational reasons for

treating prisoners and nonprisoners differently: a prisoner’s

basic necessities are paid for by the state; for many prisoners

litigation is a pastime; and it is easier to administer and enforce

post hoc installment payments against indigent prisoners

than indigents at large. The D.C. Circuit distinguished this

case from Rinaldi v. Yeager, 384 U.S. 305 (1966), relied upon by

the amicus. In Rinaldi, the Supreme Court concluded that the

statute, which required reimbursement by prisoners who lost

their criminal appeal but not by other unsuccessful appellants,

“was irrational in relevant part because there was only a weak

association between failure and frivolity among direct appeals

of a criminal conviction. . . . Here, however, the Congress

could rationally have found that most civil litigation initiated

by indigent prisoners is meritless.”

Tucker v. Branker, 142 F.3d 1294, 1297–1301 (D.C. Cir.

1998).

Sixth Circuit holds “three-strikes” provision applies to

pre-PLRA dismissals and does not infringe equal protection

or due process principles. Plaintiff appealed the district

court’s dismissal of seven civil claims. He challenged the

retroactive application of the “three-strikes” provision,

§ 1915(g), and raised equal protection and other constitutional claims. The Sixth Circuit agreed with the conclusion of

all other circuits that have addressed the issue that the provision is a procedural rule as defined in Landgraf v. USI Film

Prods., 511 U.S. 244 (1994), and thus applies to cases dismissed before the Act’s effective date.

The court rejected plaintiff’s claim that §1915(g) infringes

upon his right to equal protection by treating him differently

than nonindigent, nonprisoner litigants in prosecuting §1983

claims and by interfering with his fundamental right of access

to the courts. Neither indigents nor prisoners are a suspect

class; therefore, differentiation is permissible so long as there

is a rational basis for it. Congress’s intention of deterring the

crush of frivolous prisoner filings by barring prisoners from

IFP status after they have filed three frivolous lawsuits makes

a rational distinction between indigent and nonindigent litigants. It is also rational to differentiate between prisoners and

nonprisoners because prisoners have more free time, are

provided with basic necessities and legal assistance, and have

abused the judicial system in a way nonprisoners have not by

indulging in litigation as a recreational activity.

The court also rejected plaintiff’s argument on both equal

protection and due process grounds that his fundamental

right of access to the courts had been infringed. Plaintiff still

had the option of litigating his claims in forma pauperis in

state court. Moreover, with respect to due process, “[a] legislative body may rationally and appropriately presume that

three . . . dismissals are indicative of a propensity to abuse the

court system,” and as long as IFP prison litigants have the

opportunity to air meritorious grievances before other courts,

§1915(g) does not contravene substantive due process principles. The Sixth Circuit found without merit plaintiff’s additional arguments that enactment of § 1915(g) constituted

passage of a bill of attainder and that the “three-strikes”

provision should be invalidated as ex post facto legislation.

Wilson v. Yaklich, 148 F.3d 596, 602–06 (6th Cir. 1998).

Accord Rivera v. Allin, 144 F.3d 719, 723–30 (11th Cir. 1998).

D.C. Circuit rules that § 1915(g) does not apply to appeals initiated before PLRA’s effective date. In August 1995,

plaintiff filed a complaint and moved to proceed IFP. After

granting his IFP motion, the district court dismissed the

complaint for failure to state a claim. Plaintiff filed a notice of

appeal on April 22, 1996. Assuming for purposes of analysis

that plaintiff had had at least three prior claims dismissed for

reasons cited in §1915(g), the D.C. Circuit stated that determination of whether he was thereby prohibited from proceeding IFP depended on whether the phrase “appeal a judgment”

in the statute means “‘file an appeal,’” as plaintiff advocated, or

“‘prosecute an appeal,’” as contended by defendant. Circuits

that have considered the question are split. The court held that

the phrase, read in concert with the rest of §1915, “plainly

refers to the initiation of an appeal.” This conclusion is

bolstered by a close reading of subsection b(4), which provides that a prisoner with “no assets and no means by which

to pay the initial partial filing fee” cannot be prohibited from

pursuing a civil action or appeal. “Because an appellant is

required to pay the filing fee ‘[u]pon the filing of a[] . . . notice

of appeal,’ Fed. R. App. P. 3(e), it should be obvious that

‘appealing a . . . judgment,’ in subsection (b)(4), refers to the

initiation of an appeal.”

The D.C. Circuit further noted that under § 1915(g), a

prisoner may not “bring a civil action or appeal a judgment”

IFP after having three cases dismissed for the reasons stated in

the statute. This wording indicates that subsection (g) applies

only when an indigent prisoner files a complaint in district

court. “The [defendant’s] reading of the phrase ‘appeal a

judgment,’ however, would require continuous application of

subsection (g) throughout the prosecution of an appeal.

Section 1915 does not otherwise distinguish between trials

and appeals, and the [defendant] offers no reason why Congress would have wanted to treat them differently in this

instance. Because we can think of none, we conclude that

Congress did not intend so strange a result.” Plaintiff could

keep the IFP status granted by the district court and proceed

with his appeal.
6 Habeas & Prison Litigation Case Law Update, number 13, September 1998• a publication of the Federal Judicial Center

Chandler v. District of Columbia Dep’t of Corrections, 145

F.3d 1355, 1358–59 (D.C. Cir. 1998). Accord Cannell v.

Lightner, 143 F.3d 1210, 1212–13 (9th Cir. 1998); Garcia v.

Silbert, 141 F.3d 1415, 1416–17 (10th Cir. 1998) (distinguishing Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996)).

Eighth Circuit holds plaintiff meets imminent danger

exception of §1915(g) and is not required to pay filing fee

in full. The district court denied plaintiff IFP status under the

“three strikes” rule of §1915(g) and dismissed his complaint

without prejudice. The court granted him leave to proceed IFP

on appeal. The Eighth Circuit held that plaintiff had met the

exception to the “three-strikes” prohibition on granting IFP

status by sufficiently alleging “imminent danger of serious

physical injury.” Plaintiff “supported the allegations of his

complaint with documentary evidence, including corroborative prison disciplinary reports. . . . [B]ecause his complaint

was filed very shortly after the last attack, we conclude that

[plaintiff] meets the imminent danger exception in

§ 1915(g).” The court of appeals remanded the case with

directions that plaintiff be permitted to file his complaint

under §1915 without making full payment of the filing fee.

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (per

curiam) (Beam, J., dissented re allowing action for damages

for past injury). Cf. Baños v. O’Guin, 144 F.3d 883, 884–85 (5th

Cir. 1998) (per curiam) (“prisoner with three strikes is entitled to proceed [IFP] only if he is in imminent danger at the

time that he seeks to file his suit in district court or seeks to

proceed with his appeal or files a motion to proceed IFP”).

Fifth Circuit holds that § 1915(g) applies to petition for

writ of mandamus arising from underlying civil rights action. Plaintiff sought a writ of mandamus directing the district

court to withdraw its order denying his request to proceed IFP

in appealing the dismissal of his civil rights action. In In re

Stone, 118 F.3d 1032 (5th Cir. 1997), the court decided that a

writ of mandamus “may be considered a type of appeal” and

the nature of the underlying action would determine whether

the PLRA applies. In this case, the court considered whether

the “three-strikes” rule of § 1915(g) prevented plaintiff from

filing his mandamus petition until he paid the filing fee in full.

Since the petition arose from a civil rights action, the court

held that §1915(g) was applicable and required plaintiff to

prepay the filing fee “unless his filings claim that he is under

imminent danger of serious physical injury.”

In re Crittenden, 143 F.3d 919, 920 (5th Cir. 1998) (per

curiam).

Fifth Circuit declares order requiring payment of filing

fee is not an appealable collateral order. Pursuant to

§ 1915(b)(2), the district court ordered plaintiff to pay an

initial partial filing fee. He did not pay it. In a second order, the

court determined that plaintiff “‘ha[d] shown good cause for

failing’” to pay the fee and stated plaintiff would instead be

required to pay the full filing fee in monthly installments.

Plaintiff appealed and the Fifth Circuit held that the order was

not appealable as a final judgment because it did not end the

litigation on the merits and, under § 1915(b)(4), a prisoner

with “no assets and no means by which to pay the initial partial

filing fee” may not be barred from pursuing a civil action.

Further, the district court’s order did not fall within the

statutory list of appealable interlocutory orders, nor within

the collateral-order doctrine.

Thompson v. Drewry, 138 F.3d 984, 985–86 (5th Cir. 1998).

Remedies for Prison Conditions

Ninth Circuit declares termination provision unconstitutional on separation of powers grounds. The district court

denied a motion to terminate a consent decree entered into

more than 20 years before, finding unconstitutional 18 U.S.C.

§ 3626(b)(2), which mandates immediate termination of previously granted prospective relief. On appeal from the court’s

interlocutory order refusing to dissolve an injunction, the

Ninth Circuit found the PLRA’s language ambiguous in defining the term “relief.” Also, it was unclear how the termination

provisions of §§3626(b)(1) and (b)(2) fit together. Although

this lack of clarity might arguably have enabled the court “to

read the statute in a manner that avoids the difficult constitutional question,” that was not possible in view of legislative

history clearly showing Congress’s intent “to end perceived

ongoing micro-management of state and local prison systems

by the federal courts.”

The Ninth Circuit disagreed with other circuits that have

held that §3626(b)(2) does not violate separation of powers

principles. Taking issue with their interpretation of Supreme

Court precedent, the court found that “Congress . . . has

reopened the final judgments of the federal courts and unconditionally extinguished past consent decrees affecting prison

conditions.” Analyzing Plaut v. Spendthrift Farm, Inc., 514 U.S.

211 (1995), Rufo v. Inmates of the Suffolk County Jail, 502 U.S.

367 (1992), and Pennsylvania v. The Wheeling & Belmont

Bridge Co., 59 U.S. (18 How.) 421 (1855), the court of appeals

held that this case fell within the rule of Rufo/Plaut rather than

Wheeling. “What differentiates the termination provisions of

the PLRA from Wheeling, where modification of the injunction

was required, is the nature of the ‘change in law’ that the PLRA

brings about.” Instead of changing the substantive law underlying the consent decree at issue, Congress “define[d] the

scope and nature of the remedy that it finds appropriate for

prisoners who claim constitutional violations. . . . [T]he only

‘change in law’ that Congress has brought about is to say,

‘terminate the relief.’” This constitutes a reopening by Congress of final judicial decisions.

Beyond that, by directing that consent decrees in this and

other similarly situated cases must terminate, Congress “prescribed a rule of decision in a discrete group of Article III cases,

in violation of United States v. Klein, 80 U.S. (13 Wall.) 128

(1871).” The provision of §3626(b)(3) that the district court

may make “written findings based on the record that prospective relief remains necessary” to correct a current, ongoing

constitutional violation and that the relief is narrowly drawn
Habeas & Prison Litigation Case Law Update, number 13, September 1998•a publication of the Federal Judicial Center 7

and “the least intrusive means to correct the violation,” does

not allow for judicial decision making. “First, the court cannot

now make the findings required . . . because no record was

made. . . . Second, if the consent decree is being obeyed, there

are no ‘current and ongoing violations’. . . . Third, if violations

of the past decree were occurring, . . . the prisoner class would

be required to prove an entirely new case, to establish a present

constitutional violation.” Moreover, the court would have to

render a decision within ninety days from the date of filing the

motion in the “new case,” effectively prohibiting “meaningful

discovery, hearing, briefing, and decision-making.”

Taylor v. United States, 143 F.3d 1178, 1181–85 (9th Cir.

1998).

Sixth Circuit rules that automatic stay provision, as

amended and construed, does not violate separation of

powers by interfering with the court’s traditional inherent

powers. Defendant moved in two district courts to terminate

consent decrees and have prospective relief under the decrees

automatically stayed, pursuant to § 3626(e)(2)–(3), thirty

days after filing the motions. The courts invalidated the

automatic stay provision as a violation of separation of powers

and due process. While the consolidated cases were pending

on appeal, Congress amended the provision to enable the

district court to “postpone the effective date of an automatic

stay . . . for not more than 60 days for good cause.” Plaintiffs

and the Department of Justice argued on appeal that in

amending the statute Congress implicitly recognized the

courts’ inherent power “to suspend the automatic stay in

accordance with generally applicable equity standards.”

Before reaching the constitutional issue, the Sixth Circuit

first held that § 3626(e), as amended by subsection (4),

provided specific statutory authorization for immediate appellate review. It also concluded that the controversy was not

moot because the parties disputed whether the amended

automatic stay provision preserves courts’ inherent powers in

equity, and the statutory construction advanced by the defendant retained the “objectionable aspects of the automatic stay

provision.” Since plaintiffs had challenged the provision’s

validity on its face, the appellate court chose to reach the

merits rather than remand the cases for reconsideration.

The court found that the construction of the amended

statute advocated by plaintiffs and the Justice Department was

not violative of separation-of-powers principles. In contrast,

the defendant’s contention that the statute does not authorize

a court to postpone the effective date of an automatic stay by

more than sixty days “amounts to a direct legislative suspension of a judicial order and, alternatively, intrudes impermissibly into the effective functioning of the Judiciary under

certain circumstances.” The court relied on two rules of

statutory construction in interpreting the amended statute:

First, without “a clear command from Congress,” a statute will

not be interpreted “as limiting the equitable jurisdiction of the

federal courts.” Neither the amended statute itself nor its

legislative history revealed such congressional intent. Second,

the court will construe a statute to avoid constitutional problems “‘unless such construction is plainly contrary to the

intent of Congress.’” The interpretation offered by plaintiffs

and the Justice Department avoided constitutional infirmities

because “the courts retain the power to suspend the automatic

stay in accordance with general equitable principles.”

Although the Sixth Circuit found that the automatic stay

“technically withstands a separation-of-powers challenge”

based on United States v. Klein, 80 U.S. (13 Wall.) 128 (1871),

since it does not mandate particular evidentiary findings or

dictate the result in a specific case, it nevertheless violates

separation-of-powers principles because “it is tantamount to

direct legislative suspension of an existing court order.” Under

the defendant’s interpretation of the provision, “even if the

court postpones the effective date of the automatic stay by the

full sixty days allowed, on the ninety-first day after filing its

motion, the state officials could simply refuse to comply with

existing court orders implementing the consent decrees because the state could claim that . . . those orders ‘automatically’

have no force.” This would result “in a temporary legislative

veto over court-ordered relief in an ongoing case,” a result that

“cannot be harmonized with our tripartite system of governance.” Congress would encroach impermissibly into the

functioning of the judiciary. “By not allowing for judicial

discretion in those cases where a court simply cannot exercise

meaningful review within the prescribed time period, the

PLRA automatic stay, as construed by the state officials, impedes the courts’ substantive decisional role” and thereby

violates separation of powers.

By following the statutory construction advanced by the

plaintiffs and Justice Department, the court could hold that

“§ 3626(e), as amended, does not interfere with the traditional

inherent powers of the courts and therefore as so interpreted

does not give rise to an unconstitutional incursion by Congress into the powers reserved for the Judiciary.” Since the

prescribed time period for the automatic stay had passed, on

remand the district courts should consider whether to exercise their inherent equitable powers to suspend the stay, to

allow it to take effect, or to terminate the decrees.

Regarding the defendant’s argument that under

§3626(b)(3) a district court has to make findings based on the

record existing at the time the motion to terminate was filed,

the court said it would await “a concrete example of how a

district court actually proceeded in ruling upon a motion

under §3626(b)(2).”

Hadix v. Johnson, 144 F.3d 925, 933–46, 949 (6th Cir. 1998)

(Norris, J., concurred with the reversal of district court decisions but dissented with respect to the reasoning).

Suits by Prisoners

Sixth Circuit holds that attorneys’ fees provision does not

apply to work performed after PLRA’s effective date in cases

filed before its enactment. In 1985 and 1987, district courts

in two separate cases entered orders awarding fees to plaintiffs’

attorneys for monitoring defendants’ compliance with remedial orders and a consent decree. In both cases, plaintiffs filed
Habeas & Prison Litigation Case Law Update, no. 13, Sept. 1998

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E.

Washington, DC 20002-8003

fee petitions for work performed from January through June

1996. Defendants argued that the PLRA’s attorneys’ fees limitation, 42 U.S.C. §1997e(d), should apply. The district courts

held the provision inapplicable to fees earned before the Act’s

effective date but applied it to fees earned after that date. The

Sixth Circuit concluded that its decision in Glover v. Johnson,

138 F.3d 229 (6th Cir. 1998), that Congress did not intend

§ 1997e(d) to be applied retroactively to a fee motion for work

completed before enactment of the PLRA, controlled with

regard to post-enactment fees. Therefore, “the fee limitation is

inapplicable to the fee petitions before us, which include work

performed both prior to and after the enactment date.”

As additional support, the court of appeals cited Lindh v.

Murphy, 117 S. Ct. 2059 (1997), and Wright v. Morris, 111 F.3d

414, 418 (6th Cir.), cert. denied, 118 S. Ct. 263 (1997). “[T]he

fact that Congress chose to move the attorney fee provision

from a section of the PLRA made expressly applicable to

pending cases to a section without an effective date raises a

negative inference under Lindh that Congress intended that

the fee provision apply only to cases filed after enactment of

the PLRA.” In Wright, “we held that the plain language of the

exhaustion requirement . . . evinced Congress’ intent that it

not be applied to pending cases. . . . [T]he attorney fee

provision . . . contains very similar temporal language.”

Hadix v. Johnson, 143 F.3d 246, 252–56 (6th Cir. 1998). See

also Hadix v. Johnson, supra, 144 F.3d at 947 (award of attorneys’ fees for pre-PLRA work governed by 42 U.S.C. § 1988, not

PLRA). But see Madrid v. Gomez, 150 F.3d 1030, 1036–37 (9th

Cir. 1998) (fee provision applies to all cases, including those

pending when PLRA took effect). Cf. Blissett v. Casey, 147 F.3d

218, 221 (2d Cir. 1998) (rejecting claim that fee provision

should apply to all awards of fees entered after PLRA’s effective

date).

Seventh Circuit holds that prisoner on parole is not

subject to PLRA’s restriction on bringing civil actions for

mental or emotional injury. After his release on parole,

plaintiff brought suit alleging mental or emotional injury

inflicted upon him while he was incarcerated. The district

court ruled that § 1997e(e) applied to actions brought by

“former prisoners” and barred the suit because plaintiff failed

to allege a “prior showing of physical injury” as required by the

statute. The Seventh Circuit held that the statute by its terms

does not apply to a prisoner on parole. “[T]he statute says that

its object is a ‘prisoner confined in a jail, prison, or other

correctional facility.’” Moreover, the explicit definition of

“prisoner” in § 1997e(h) “does not leave wriggle room; a

convict out on parole is not a ‘person incarcerated or detained

in any facility who is . . . adjudicated delinquent for, violations

of . . . the terms and conditions of parole.’” In Robbins v. Switzer,

104 F.3d 895 (7th Cir. 1997), the court held that in §1915(b)

the term ‘prisoner’ did not include “a felon who has been

released. §1997e(h) shows that the same reading is right for

§1997e.”

Kerr v. Puckett, 138 F.3d 321, 322–23 (7th Cir. 1998).