1 Davis’s primary argument on appeal is that the district

court erred in construing his mandamus action as a section 2241

habeas petition. As discussed below, the district court properly

construed Davis’s petition as one for habeas relief under section

2241, rather than a petition for mandamus under 28 U.S.C. section

1361. REVISED, August 13, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

97-10818

__________________

SAMUEL JOHN MAJOR DAVIS, JR.,

Petitioner-Appellant,

versus

VINCENT J. FECHTEL, JR., Commissioner

of the United States Parole Commission;

VICTOR M. F. REYES, Commissioner of the

United States Paroles Commission; G.

MACKENZIE RAST, Commissioner of the

United States Parole Commission,

Respondents-Appellees.

______________________________________________

Appeal from the United States District Court for the

Northern District of Texas

______________________________________________

August 7, 1998

Before DAVIS, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Samuel John Major Davis, Jr., a federal prisoner, appeals the

district court’s dismissal of his 28 U.S.C. section 2241 habeas

petition as an abuse of the writ. 1 This case is now before us on

a motion for leave to proceed in forma pa u peris. We write2 Congress enacted the PLRA as Title VIII of the Omnibus

Consolidated Resc issions and Appropriations Act of 1996, Pub. L.

104-134, 110 Stat. 1321 (1996). Section 804 of the PLRA amends 28

U.S.C. section 1915 to change the procedures prisoners must follow

when seeking to proceed in forma pauperis in civil actions.

3 Davis initially filed this action in the United States

D istrict Court for the District of Columbia, which construed the

action as one seeking habeas relief, and transferred the case to

2 principally to decide an issue not yet addressed in this circuit,

whether the P r ison Litigation Reform Act (hereinafter PLRA) 2

applies to section 2241 habeas petitions. Concluding that Congress

did not intend for the term “civil action” to include section 2241

habeas proceedings, we find that the PLRA does not apply.

Additionally , we determine that the district court properly

dismissed Davis’s third petition as an abuse of the writ. Because

Davis has failed to present a nonfrivolous issue on appeal, we deny

his motion for leave to proceed in forma pauperis.

I. PROCEDURAL HISTORY

In 1994, Davis filed a section 2241 habeas petition alleging

that the United States parole commission had failed to comply with

its ow n regulations and federal statutes in denying him parole.

The district court denied his petition, and this Court affirmed on

the merits. Davis subsequently filed a second section 2241

petition, which the district court dismissed as an abuse of the

writ. On appeal, this Court dismissed it as an abuse of the writ.

Undaunted, Davis filed a third suit (styled as a mandamus

under 28 U.S.C. section 1361), purporting to seek only a directive

to the individual members of the parole commission to correct

errors th at he complained of in a previous petition. 3 The courtthe Northern District of Texas.

3

below construed Davis’s petition as a section 2241 habeas petition

and concluded that because th e grounds for relief had previously

been determined to constitute an abuse of the writ, the instant

petition also was an abuse of the writ and dismissed the petition

with prejudice.

Davis then mo ved to proceed on appeal i n forma pauperis.

After reviewing Davis’s inmate trust record and observi ng that

Davis had received more than $1200 into his inmate account in

recent months, the district court denied the mo tion, concluding

that Davis could afford the $105 appellate fi ling fee. In its

order of denial, the district court determined that the PLRA was

not applicable to a section 2241 habeas petition. Before us now is

Davis’s “motion for leave to file appeal without prepayment of

filing fee an d to pay the $105 filing fee in (4) installment

payments.”

II. ANALYSIS

A. HABEAS OR MANDAMUS ACTION

Davis strenuously argues that the district court erre d in

construing his mandamus action as a section 2241 habeas petition.

This Court has held that a court may liberally construe a p ro se

petitioner’s pleading and treat it as a habeas cor pus petition,

where appropriate. S ee Russell v. Knight, 488 F.2d 96, 97 (5th Cir

1973) (constr uing mandamus petition as a section 2254 habeas

petition).

Mandamus is, of course, an extraordinary remedy. In re Stone

,4

118 F.3d 1032, 1034 (5th Cir. 1997). To obtain a mandamus order,

a petitioner must establish “(1) a clear right to the relief, (2)

a clear duty by the respondent to do the act requested, and (3) the

lack of any other adequate remedy.” Id.

Contrary to Davis’s contentions, his challenge directly

implicates the duration of his present confin ement. He requests

that a mandamus issue to order the parole commission to perform an

act that would reduce his sentence. As such, his claim is

challenging the execution of his sentence and therefo re is a

section 2241 claim. United States v. Tubwell, 37 F.3d 175, 177

(5th Cir. 1994) (challenging execution of sentence is section 2241

claim).

Indeed, the District of Columbia Circuit has held that

mandamus was not the appropriate avenue to redress a federal

prisoner’s challenge to his parole eligibility date a nd that

section 2 241 provided the e xclusive remedy. C hatman-Bey v.

Thornburgh, 864 F.2d 804, 808-810 & n.5, 814 (D.C. Cir. 1988). We

ne ed not determine today, however, whether habeas corpus is the

exclusive remedy for a federal prisoner bringing a challenge to the

execution of his sentence. Clearly, habeas corpus was available to

D avis, and his abuse of the Great Writ did not render it

unavailable or inadequate. Thus, the district court properly

construed Davis’s pleading as one falling under section 2241.

B. WHETHER THE PLRA APPLIES

Next, we must determine whether the PLRA’s financial screening

and assessmen t requirements apply to 28 U.S.C. § 2241 habeas4 The prisoner must “pay the full amount of a filing fee.”

The full amount is not required upon filing. The court assesses a

partial filing fee and certain monthly payments are to be made in

accordance with § 1915.

5 In Ojo v. I.N.S.

, 106 F.3d 680 (5th Cir. 1997), a § 2241

proceeding, we determined that the PLRA did not apply because the

petitioner, a detainee who was ab out to be deported, was not a

“prisoner” within the meaning of § 1915(a)(2).

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

fee obligations on a prisoner who “brings a civil action or files

an appeal in forma pauperis.” § 1915(b)(1). 4 Here, the question

is whether a § 2241 habeas proceeding is a “civil action” within

the meaning of the PLRA.

When interpreting a statute, we f irst look to its plain

language. Sutton v. United States, 819 F.2d 1289, 1294 (5th Cir.

1987). “Specific words within a statute, however, may not be read

in isolation of the remainder of that section or the entire

statutory scheme.” Id. at 1293.

It is true that habeas corpus proceedings are technically

“civi l actions.” Nevertheless, the Supreme Court has made clear

that that “label is gross and inexact” and that “the proceeding is

unique.” H ar ris v. Nelson, 394 U.S. 286, 293-94, 89 S.Ct. 1082,

1087 (1969). We must presume, of course, that Congress was aware

of the construction courts had given to the terms in the statute.

Sutton, 819 F.2d at 1294.

Although this Court has not addressed the precise question of

whether the PLR A applies to section 2241 proceedings, 5 we have

determined that actions brought under 28 U.S.C. §§ 2255 and 2254

are not “c ivil actions” for the purposes of the PLRA. U nited6 R eyes v. Keane

, 90 F.3d 676 (2d Cir. 1996); Santana v.

United States

, 98 F.3d 752 (3d Cir. 1996); Martin v. United States,

96 F.3d 853 (7th Cir. 1996).

7 Title I of the Antiterrorism and Effective Death Penalty

Act (hereinafter AEDPA) of 1996, sections 101-108, Pub.L. No. 104-

132, 110 St at. 1214, 1217-26 (1996) (to be codified at 28 U.S.C.

sections 2244-2266; Fed.R.App. P. 22) became e ffective two days

prior to the PLRA.

6 States v. Cole

, 101 F.3d 1076 (5th Cir. 1996) (§ 2255); C arson v.

Johnson

, 112 F.3d 818 (5th Cir. 1997)(§ 2254). In Cole

, this Court

looked to the holdings of three other circuits which had recognized

that although habeas proceedings are technically “civil actions,”

there are several considerations that counsel against applying the

PLRA to them. 6 The Third Circuit stated that habeas proceedings

were of a hybrid nature, and a plethora of case law demonstrated

that habea s proceedings were not necessarily encompassed by the

phrase “civil action.” Santana , 98 F.3d at 754-55.

Further, we found the following analysis from the Second

Circuit persuasive:

First, the [PLRA] was aimed primarily at

prisoners’ suits challenging prison

conditions, many of which are routinely

dismissed as frivolous. There is nothing in

the text of the [PL R A] or its legislative

history to indicate that Congress expected its

filing fee payment requirements to apply to

habeas corpus petitions. Second, we note that

Congress has endeavored to make the filing of

a habeas corpus petition easier than the

f iling of a typical civil action by set ting

the district court filing fee at $5, compared

to the $120 applicable to civil complaints

. .

. . Third, Congress gave specific attention to

perceived abuses in the filing of habeas

corpus petitions by enacting Ti tle I of the

AEDPA. 7 That title imposes several new

restrictions on habeas corpus petitions, but

makes n o change in filing fees or in a8 We recognize that the full district court filing fee for

habeas petitions, including those filed pursuant to section 2241,

is only five dollars. Although five dollars is a very small

amount, “if one does not have it and is unable to get it the fee

might as well be [an exorbitant sum].” S mith v. Bennett

, 365 U.S.

708, 712, 81 S.Ct. 895, 897 (1961). On appeal, the filing fee is

$105.

7

prisoner’s obligation for payment of existing

fees.

Cole, 101 F.3d at 1077 (quoting Reyes, 90 F.3d at 678) (footnote

added).

Additionally, the Seventh Circuit observed a practical

difficulty with applying the PLRA to habeas proceedings. If a

prisoner previously had filed three frivolous suits, he could not

file a petition for habeas relief without paying the full filing

fee. 8 “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.” M artin, 96 F.3d at 855-56.

Finding these reasons persuasive, this Court held that the PLRA did

not apply to § 2255 proceedings. Cole , 101 F.3d at 1077.

Not long after our holding in Cole regarding section 2255

actions, we addressed whether the PLRA applied to section 2254

proceedings. Carson , 112 F.3d 818. In that case, we opined that

all the rationales set forth in Cole for not applying the PLRA to

section 2255 actions “apply with equal, if not greater, force to 28

U.S.C. § 2254 petitions

. . . .” Therefore, we held that the PLRA

did not apply to section 2254 proceedings.

Likewise, we believe the above stated reasons for not applying

the PLRA to sections 2254 and 2255 cases would also apply to habeas8

petitions brought pursuant to section 2241. There is, however, a

split in the circuits on this issue.

The Tenth Circuit held that “[b]ecause the nature of a § 2241

proceeding is the same as § 2254 and § 2255 proceedings,” § 2241

actions are not “civil actions” within the meaning of the PLRA.

McIntosh v. U.S. Parole Commission, 115 F.3d 809, 911 (10th Cir.

1997). Recognizing that “a § 2241 attack on the execution of a

sentence may challenge some matters that occur at prison, such as

depriva tion of good-time credits and other prison disciplinary

matters,” the Tenth Circuit nevertheless opined that this does not

make a § 2241 action like a “condition of confinement” lawsuit. An

execution-of-sentence claim is still challenging the fact or

duration of a prisoner’s confinement. The prisoner is seeking

earlier rel ease as opposed to monetary compensation for prison

conditions.

On the other hand, the Seventh Circuit held that the PLRA did

apply to section 2241 proceedings. N ewlin v. Helman

, 123 F.3d 429

(7th Cir. 1997). In that case, the petitioner argued that the

parole commission had miscalculated his mandatory release date.

The Seventh Circuit believed tha t challenges to the denial of

parole did not affect the validity of a criminal sentence and that

such litigation could not be deemed a “functional continuation of

the criminal prosecution.” Although it conceded that parole

affects the duration of confineme nt, the Court likened the

petitioner’s challenge to his parole calculation to a challenge to

the revocation of good time credits, which, in a previous opinion,9 Additionally, “the PLRA contains several other provisions

directed specifically at prison con ditions litigation . . . but

makes no specific reference anywhere in the Act to challenges to

the fact or length of confinement.” Blair-Bey at *5.

1 0 141 C ong. Rec. S7498-01, S7524 (daily ed. May 25, 1995).

9 it had stated in dicta was a “civil action” for the purposes of the

PLRA.

Very recently, the District of Columbia Circuit issued a

persuasive opinion aligning itself with the Tenth Circuit and

rejecting the analysis of the Seventh Circuit. B lair-Bey v. Quick,

__ F.3d

__ 1998 WL 412488 (D.C.Cir. July 24, 1998). The District

of Columbia Circuit took issue with the purported distinction the

Seventh Circu it had attempted to draw between “criminal” and

“civil” habeas petitions, stating that there was no authority for

t he proposition, and thus, “[t]here is no evidence that Congr ess

might have relied on a preexisting distinction between “criminal”

and “civil” habeas corpus petitions when it enacted the PLRA. Nor

is there any indication that Congress itself intended to establish

any such distinction in the PLRA.” Id. at *4-5. 9

We agree. In fact, the legislative history of the PLRA

indicates that Congress was inter ested in discouraging suits

involving frivolous challeng es to prison conditions. S ee e.g.,

United States v. Simmonds

, 111 F.3d 737, 743 (10th Cir. 1997)

( referencing Senator Dole’s statement in regard to limiting such

prison condition suits involving a challenge to the amount of

storage space and the now infamous creamy peanut butter versus

chunky peanut butter controversy). 10 Further, as we recognized in10

Carson, the AEDPA, which became effective two days prior to the

PLRA, set forth separate proc edures for addressing abuses of the

h abeas process, strongly suggesting that Congress never intended

for the PLRA to apply to habeas petitions. 112 F.3d at 820.

Our case law indicates that claims regarding denial of parole

(and loss of good time credits) sound in habeas. We have explained

that although a § 1983 suit can be used to challenge

unconstitutional parole procedures, when a prisoner challenges the

result of a specific defective parole hearing or the board’s rules

and procedures that affect his re lease, and resolution would

automatically entitle him to accelerated release, then the

challenge must be pursued in a habeas corpus proceeding. Orellana

v. Kyle, 65 F.3d 29 (5th Cir. 1995); see also In re: Cain

, 137 F.3d

234 (5th Cir. 1998) (holding that a prisoner should seek redress

for loss of good conduct credits through a habeas proceeding).

Here, the bottom line is that Davis seeks accelerated release

from prison. Davis’s challenge to the execution of his sentence

therefore most certainly is a challenge to the duration of his

confinement--not to a condition of his confinement. As such, his

claim sounds in habeas, specifically, a section 2241 proceeding.

Although claims brought under section 2241 do not challenge the

validity of a conviction or sentence because the error complained

of did not occur during the criminal proceedings, we believe such

claims are more akin to claims brought pursuant to sections 2254

and 2255 than they are to claims challenging conditions of a

prisoner’s confinement brought in civil rights suits under 4211

U.S.C. section 1983. Simply put, habeas claims involve someone’s

liberty, rather than mere civil liability. C f. O’Neal v. McAninch,

115 S.Ct. 992, 996 (1995) (comparing the stakes involved in habeas

proceedings to those in civil cases in the context of discussing

the standard of review in a habeas case).

In short, be cause the alleged error affects the duration of

confinement, a section 2241 claim is more closely related to other

habeas claims brought pursuant to sections 2254 and 2255 than

claims challenging conditions of confinement. We see no reason to

distingu ish a section 2241 proceeding from the other types of

habeas proceedings. Accordingly, agreeing with the Tenth and

District of Columbia Circuits, we hold that because the nature of

a section 2241 proceeding is the same as those under sections 2254

and 2255, section 2241 proceedings are not “civil actions” for the

purposes of section 1915. The PLRA thus does not apply to section

2241 proceedings.

C. ABUSE OF THE WRIT

As set forth above, Davis is attempting to raise the same

grounds for relief that he raised in his second section 2241

petition, which was deemed an abuse of the writ. In his brief, he

does not specifically argue that the district court e rred in

holding that he had abused the writ. His sole argument is that the

court erred in construing the petition as a habeas petition. Under

these circumstances, we need not determine whether the gate-keeping

provisions of the AEDPA apply to the instant petition, Davis’s

third section 2241 petition, beca use it clearly constitutes an12

abuse of the writ either under our pre- or post-AEDPA

jurisprudence.

In conclusion, we find that the PLRA does not apply and that

Davis’s third section 2241 petition constitutes an abuse of the

writ. We therefore DENY his motion to proceed without prepayment

of filing fees and DISMISS the appeal as an abuse of the writ.