*District Judge of the Western District of Louisiana, sitting

by designation. 

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United States Court of Appeals,

Fifth Circuit.

No. 96-31310.

Jerry SANTEE, Petitioner-Appellant,

v.

Patrick QUINLAN, Judge, Criminal District Court; Attorney

General State of Louisiana, Richard Ieyoub, Respondents-Appellees.

June 24, 1997.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before WIENER and PARKER, Circuit Judges, and LITTLE, District

Judge.*

PER CURIAM:

Jerry Santee ("Santee"), a Louisiana state prisoner, appeals

the order of the district court dismissing his petition for

mandamus as frivolous pursuant to 28 U.S.C. § 1915. We affirm.

FACTS AND PROCEEDINGS BELOW

In 1984, Santee was found guilty of manslaughter and sentenced

as a third-time felony offender to 42 years at hard labor. His

conviction and sentence were affirmed on direct appeal. State v.

Santee, 464 So.2d 922 (La.App. 4th Cir., 1985). He was

subsequently denied post-conviction relief by the state trial and

appellate courts.

In 1992 he filed a writ application with the Louisiana Supreme

Court. Santee alleges that the Louisiana Supreme Court allowed his

writ application to languish for over 3 years, ultimately
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dismissing it as time-barred pursuant to LSA-C.Cr.P. Art. 930.8 and

State ex rel. Glover v. State, 660 So.2d 1189 (La., 1995), without

reaching the merits.

Santee then filed this pro se, in forma pauperis (IFP)

application for writ of mandamus, asking that the federal district

court order the Louisiana Supreme Court to review his state writ on

the merits. A magistrate judge recommended that this action be

dismissed as frivolous pursuant to 28 U.S.C. § 1915, giving four

reasons: (1) the complaint named the wrong party—a state trial

judge, not the Louisiana Supreme Court; (2) the action had been

dismissed, so there was nothing for the Louisiana Supreme Court to

act on, even if so ordered; (3) federal courts lack power to

mandamus state courts in the performance of their duties; (4) to

the extent that Santee's claim was one for habeas relief, he failed

to show that he had authorization to file a successive habeas

petition.

Santee filed objections to the magistrate judge's

recommendation. He also filed a motion to amend his complaint to

reflect the name of the proper defendant in response to the

magistrate's "wrong party" concern. That motion was denied and the

district court adopted the magistrate's recommendation and

dismissed Santee's claims as frivolous. Santee filed a notice of

appeal and the district court denied a certificate of

appealability.

PLRA FEE REQUIREMENTS

 A prisoners bringing a civil action or an appeal of a
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judgment in a civil action is required by 28 U.S.C. § 1915(b), as

modified by the Prison Litigation Reform Act ("PLRA"), to provide

certain documentation and to pay some portion of the filing fees

prior to proceeding in forma pauperis. This court must initially

determine whether this appeal is "an appeal of a judgment in a

civil action" so as to fall within the PLRA requirements.

This is a question of first impression in the Fifth Circuit.

The Seventh Circuit has held that a petition for mandamus against

a judge presiding in a pending case is, in effect, a form of

interlocutory appeal. Martin v. United States, 96 F.3d 853, 854

(7th Cir.1996). Whether an interlocutory appeal is within the

scope of the PLRA turns on whether the litigation in which it is

filed falls within that scope. Id. The Second Circuit has

determined that the new fee requirements of the PLRA apply to

mandamus actions that seek relief analogous to civil complaints

under 42 U.S.C. § 1983, but not to writs directed at judges

conducting criminal trials. In re Nagy, 89 F.3d 115, 116 (2nd

Cir.1996).

We find the reasoning of Martin and Nagy persuasive and now

consider the nature of Santee's mandamus petition. Santee's

underlying litigation is a state court post-conviction petition for

writ of habeas corpus. Although writs of habeas corpus have in

some instances been termed "civil" or "hybrid," they do not fall

within the scope of PLRA's appeal of a civil action, but have their

own fee provisions. See United States v. Cole, 101 F.3d 1076 (5th

Cir.1996). We therefore hold that this mandamus is not an appeal
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of a civil action within the scope of PLRA, and that Santee need

not comply with the PLRA fee payment requirements prior to

proceeding IFP in this appeal.

CERTIFICATE OF APPEALABILITY

Santee filed a motion for a Certificate of Appealability

("COA") which is necessary in the appeal of the denial of a

petition for habeas corpus. See Drinkard v. Johnson, 97 F.3d 751,

755-56 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114,

137 L.Ed.2d 315 (1997). The district court filed the matter

initially as a petition for habeas corpus relief under 28 U.S.C. §

2254. The magistrate judge's report and recommendation, which the

district court adopted, says, "Finally, to the extent that

plaintiff's complaint can be read as presenting a claim for federal

habeas corpus relief, he makes no showing of having obtained

authorization from the United States Court of Appeals for the Fifth

Circuit to file a second or successive habeas petition in this

Court." The district judge later denied Santee's motion for COA.

Santee raises no issues under which he has a potential ground

for relief in this court. Santee argues that the district court

erred when it dismissed his suit without giving him the opportunity

to amend it to name the proper parties. Santee is correct, in that

he did not need permission from the district court to amend his

complaint inasmuch as he had not yet filed such a motion and no

responsive pleading had been filed. See Fed.R.Civ.P. 15(a);

McGruder v. Phelps, 608 F.2d 1023 (5th Cir.1979). However, the

district court's failure to consider the amendment was harmless
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because even under the amended complaint his petition was

frivolous. To the extent that Santee seeks to appeal the district

court's denial of habeas corpus relief, his appeal is wholly

without merit, and we deny his motion for a certificate of

appealability.

To the extent that Santee's appeal from the district court's

dismissal of his mandamus petition is properly before this court,

we find no meritorious ground of error. The district court's

dismissal pursuant to 28 U.S.C. § 1915 is affirmed for essentially

the reasons given by the district court. See Santee v. Quinlan,

No. 96-CV-3417 (E.D.La., Nov. 5 & 27, 1996)

CONCLUSION

Santee's IFP status is approved. Santee's motions for COA,

appointment of counsel, evidentiary hearing, and writ of error are

DENIED. The district court's order of dismissal is AFFIRMED.