1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-18-1996

Santana v. United States

Precedential or Non-Precedential:

Docket 96-5276

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Recommended Citation

"Santana v. United States" (1996). 1996 Decisions. Paper 52.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/52
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 96-5276 

 

 ERNESTO SANTANA 

 v. 

 UNITED STATES OF AMERICA 

 Ernesto Santana, 

 Appellant. 

 

 

 On Appeal from the United States District Court 

 For the District of New Jersey 

 D.C. Civ. No. 96-cv-00499 

 

 Submitted by the Clerk 

 for a certificate of appealability 

 pursuant to 28 U.S.C. § 2253(c)(1) 

 August 15, 1996 

 Before: BECKER, ALITO and MCKEE, Circuit Judges. 

 (Motions Panel A) 

 (Opinion Filed October 18, l996) 

 Ernesto Santana, # 15992-050 

 Ray Brook FCI 

 P.O. Box 905 

 Ray Brook, N.Y. 12977 

 Appellant Pro Se 

 Kevin McNulty, Esq. 

 U.S. Attorney's Office 

 970 Broad St. 

 Newark, New Jersey 07101 

 

 Counsel for Appellee 

 
 

 OPINION OF THE COURT 

 

BECKER, Circuit Judge. 

 Ernesto Santana has asked this Court to grant a 

certificate of appealability for his challenge to the district 

court's denial of habeas corpus relief pursuant to 28 U.S.C. § 

2255. As a preliminary matter, Santana's request requires us to 

determine whether the filing fee payment requirements of the 

Prison Litigation Reform Act of 1995 apply to in forma pauperishabeas 

corpus petitions and appeals. We conclude that they do 

not. Reaching the merits of the request, we find that Santana's 

petition is wholly without merit, hence the request for a 

certificate of appealability will be denied. 

 I. 

 Santana pled guilty in 1992 to one count of conspiracy 

to possess with intent to distribute more than five kilograms of 

cocaine in violation of 21 U.S.C. §§ 841 & 846. The district 

court sentenced him to prison for the statutory minimum period of 

120 months. In the present habeas petition filed pursuant to 28 

U.S.C. § 2255, Santana claims that his counsel rendered 

constitutionally ineffective assistance by failing to object to 

an alleged miscalculation of a Sentencing Guideline range and by 

failing to correct the district court's alleged misconception of 

its ability to reduce his Guideline level. Santana asserts that 

but for counsel's errors his minimum sentence could have been as 

low as 87 months. 

 By Order entered April 12, 1996, the district court 

denied the request for a writ of habeas corpus. The district 

court concluded that, because the statutory minimum sentence 

associated with Santana's offense exceeded the Sentencing 

Guideline range asserted by Santana, the request for habeas 

relief lacked merit. Santana filed a timely notice of appeal, 

which, in light of the recent amendments to habeas corpus law, 

was construed as a request for a certificate of appealability. 

See 28 U.S.C. § 2253 (c)(1)(B). 

 II. 

 A. 

 Before examining the merits of Santana's request, we 

consider whether, in light of the Prison Litigation Reform Act 

("PLRA"), Santana must pay the appellate docketing and filing 

fees of $105.00. On April 26, 1996, Congress enacted the PLRA as 

Title VII of the Omnibus Consolidated Rescissions and 

Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 

(1996). Section 804 of the PLRA, which amends 28 U.S.C. § 1915, 

redefines the rights and obligations of litigants who are granted 

in forma pauperis status. Prior to the passage of the PLRA, 
imprisoned litigants who were granted leave to proceed in formapauperis 

could seek and easily obtain waivers of filing fees. 

The PLRA, however, requires prisoners proceeding in formapauperis who 

bring "civil actions" or appeals of "civil actions"

to pay all filing fees. The PLRA also establishes an elaborate 

deferred payment schedule by which litigants may fulfill their 

filing fee obligations. If an imprisoned litigant's funds are 

insufficient to pay the full filing fee, the prisoner must pay an 

initial partial filing fee. Thereafter, the prisoner must make 

monthly payments to the court until the filing fee is paid in 

full. 

 In the present case, the district court granted 

Santana's motion to proceed in forma pauperis on appeal. Thus, 

if the PLRA is applicable to a habeas corpus action such as 

Santana's, then he must somehow pay filing and docketing fees of 

$105 in order to obtain judicial review of his petition for 

relief. 

 B. 

 The PLRA applies to prisoners who bring a "civil 

action" or who appeal a judgment in a "civil action or 

proceeding." 28 U.S.C. § 1915(a)(2), (b). But the PLRA neither 

defines "civil action" for purposes of in forma pauperislitigants nor 

expressly excludes habeas corpus proceedings from 

its scope. 

 At first blush, the plain meaning of the PLRA appears 

to require petitioners for habeas relief to fulfill its filing 

fee obligations. Habeas corpus proceedings are technically civil 

actions. Ex Parte Tom Tong, 108 U.S. 556, 559 (1883). Not only 

do habeas petitions fit within the literal scope of the PLRA, but 

§ 802(a) of the PLRA, which applies to "civil action[s] with 

respect to prison conditions," explicitly excludes habeas corpus 

proceedings from its scope. 18 U.S.C. § 3626. As a result, one 

could argue that, because Congress excluded habeas corpus 

petitions in one provision, it would have done so in the filing 

fee provision if it had intended. See, e.g., Van Doren v. 

Mazurkiewicz, 1996 WL 506627*1 (E.D. Pa.) (holding that the PLRA 

applies to habeas corpus proceedings); see also Green v. 

Nottingham, 90 F3d 415, 418 (10th Cir. 1996) (holding that 

"petitions for a writ of mandamus are included within the meaning 

of the term 'civil action'" for purposes of the PLRA). 

 We do not believe, however, that the meaning of the 

phrase "civil action" as used in the PLRA is plain. First, 

habeas corpus cases are, in effect, hybrid actions whose nature 

is not adequately captured by the phrase "civil action"; they are 

independent civil dispositions of completed criminal proceedings. 

James S. Liebman, 1 FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 

2.1, at 3 (1988). The "civil" label is attached to habeas 

proceedings in order to distinguish them from "criminal" 

proceedings, which are intended to punish and require various 

constitutional guarantees. Boudin v. Thomas, 732 F.2d 1107, 1112 

(2d Cir. 1984); see also Ex parte Tom Tong, 108 U.S. at 559 

(Habeas corpus review is a civil proceeding because

"[p]roceedings to enforce civil rights are civil proceedings and 

proceedings for the punishment of crimes are criminal 
proceedings."). In light of their hybrid nature, habeas 

proceedings are often determined to be outside the reach of the 

phrase "civil action." See, e.g., Schlanger v. Seamans, 401 U.S. 

487, 490 n.4 (1971) (nationwide service of process under 28 

U.S.C. § 1391(e) applicable in civil proceedings against United 

States employees and officers is not available in habeas corpus 

proceedings); Harris v. Nelson, 394 U.S. 286 (1969) (civil 

discovery rules do not automatically apply to habeas 

proceedings); Ewing v. Rodgers, 826 F.2d 967 (10th Cir. 1987) (a 

habeas corpus suit is not a "civil action" for purposes of an 

award of attorneys fees under the Equal Access to Justice Act, 28 

U.S.C. § 2412(d)(1)(A)); Boudin, 732 F.2d 1107 (similar); Dillard 

v. Blackburn, 780 F.2d 509 (5th Cir. 1986) ("[H]abeas cases are 

not automatically subject to the rules governing civil 

actions."); see also Advisory Committee Note to Rule 11 of the 

Rules Governing § 2254 Cases (Federal Rules of Civil Procedure 

apply to habeas corpus proceedings only to the extent they are 

not inconsistent with the habeas rules). 

 Furthermore, the express exclusion of habeas 

proceedings found in § 802(a) of the PLRA does not require us to 

hold that habeas proceedings are "civil actions" for purposes of 

the PLRA. Section 802, which amends 18 U.S.C. § 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. A "prison release order," defined as 

an order "that directs the release from or non admission of 

prisoners to a prison," § 3626(g)(4), contemplates relief akin to 

that provided by a writ of habeas corpus. Thus, whereas the 

phrase "civil action" used in the PLRA's provision regarding 

filing fees does not clearly encompass habeas proceedings, the 

text of § 802 does. As a result, in order to distinguish between 

prison release orders and habeas proceedings, Congress felt 

compelled to exclude expressly such proceedings from the scope of 

§ 802. 

 Finally, the plain meaning interpretation of the PLRA 

is undermined by Congress's passage of the antiterrorism law 

proximate to its enactment of the PLRA. On April 24, 1996, two 

days before it passed the PLRA, Congress passed the Antiterrorism 

and Effective Death Penalty Act ("AEDPA"). Aimed at curbing 

groundless litigation, the AEDPA imposes significant restrictions 

on the filing of second or successive petitions for habeas corpus 

relief. If Congress had wanted to reform the in forma pauperisstatus of 

habeas petitioners, it might have done so in the AEDPA; 

yet nothing in the AEDPA changes the filing fees attached to 

habeas petitions or a prisoner's obligation to pay those filing 

fees. 

 Because of the foregoing reasons, we believe that the 

phrase "civil action" as used in § 1915(b) lacks a plain meaning. 

We must therefore consider whether the phrase includes habeas 

corpus proceedings in this context. The two courts that have 

previously considered this issue agree that Congress did not 

intend to include habeas proceedings in the category of "civil 

action" for the purposes of § 1915(b). See Martin v. United 

States, 1996 WL 528816 (7th Cir.); Reyes v. Keane, 90 F.3d 676 
(2d Cir. 1996). We concur with those Courts. In determining 

whether a statute governing "civil actions" applies to habeas 

corpus proceedings, we must examine its context. See In re Grand 

Jury Subpoena Duces Tecum Dated January 2, 1995 (Simels), 775 

F.2d 499, 503 (2d Cir. 1985) ("The application of each statute or 

rule using the words `civil action' must be decided on the basis 

of its language, its history and its purpose."). In Reyes, 90 

F.3d at 678, Judge Newman noted that nothing in the text or 

legislative history of the PLRA "indicate[s] that Congress has 

endeavored to make the filing fee payment requirements to apply 

to habeas corpus petitions [or appeals]." Rather, Congress 

enacted the PLRA primarily to curtail claims brought by prisoners 

under 42 U.S.C. § 1983 and the Federal Torts Claims Act, most of 

which concern prison conditions and many of which are routinely 

dismissed as legally frivolous. See H.R. CONF. REP. NO. 104-378, 

104th Cong., 2d Sess. (1996) (The PLRA "limit[s] the remedies for 

prison condition lawsuits."); 141 CONG. REC. S14418 (daily ed. 

Sept. 27, 1995) (statement of Sen. Hatch) (The PLRA will limit 

frivolous "prison condition lawsuits," such as a prisoner who 

"sued demanding that he be issued Reebok ... instead of Converse" 

brand shoes."). 

 The text of the PLRA itself reflects this focus. 

Section 802 of the PLRA limits remedies in prison conditions 

cases. Section 803 restricts § 1983 actions by requiring 

prisoners to exhaust their administrative remedies prior to 

filing such claims. See 42 U.S.C. § 1997(e). Section 806 

narrows the availability of relief under the Federal Tort Claims 

Act by prohibiting prisoners from bringing actions against the 

government for mental or emotional injury absent a showing of 

physical harm. See 28 U.S.C. § 1346(b). Relying upon the PLRA's 

purpose, the Second Circuit has noted that the PLRA applies to 

special proceedings like habeas corpus "if the ... claim is 

analogous to the typical suits brought under 42 U.S.C. § 1983 

complaining about prison conditions." Reyes, 90 F.3d at 679 

(quoting In re Paul Nagy, 89 F.3d 115, 117 (2nd Cir. 1993)). 

Although we do not suggest that the only civil actions to which 

the PLRA applies are prisoners' suits seeking relief from prison 

conditions, we agree with the Second Circuit that, where a claim 

is not analogous to such a suit, the PLRA should be applied with 

caution. See Reyes, 90 F.3d at 679 n.1. 

 Furthermore, when the PLRA is read as a whole, it is 

apparent that Congress did not intend for the statute to apply to 

habeas proceedings. The PLRA establishes an elaborate 

installment payment plan by which litigants may fulfill their 

filing fee obligations, yet does not increase the $5 filing fee 

for a habeas corpus petition. In comparison, the filing fee for 

a civil complaint is $120.00. 28 U.S.C. § 1914(a). Congress 

surely did not intend for the installment plan of the PLRA to 

apply to habeas corpus actions merely to assure deferred monthly 

payments of a $5.00 fee. See Reyes, 90 F.3d at 67. Furthermore, § 

1915(g) limits a prisoner to three frivolous suits or appeals in 

a lifetime. To hold that the PLRA was applicable to habeas 

corpus actions would prohibit a prisoner who had filed three 

groundless civil suits from seeking habeas relief from unlawful 
imprisonment. As Judge Posner observes in Martin, 1996 WL 528816 

*2, "[t]his result would be contrary to a long tradition of ready 

access of prisoners to federal habeas corpus." This is a result 

that we cannot countenance. 

 For the foregoing reasons, we conclude that the filing 

fee payment requirements of the PLRA set forth in 28 U.S.C. § 

1915(b) do not apply to habeas corpus petitions or to appeals 

from the denial of such petitions. Henceforth, the Clerk of this 

Court and the clerks of all of the district courts in this 

Circuit shall not impose the financial requirements of the PLRA 

in forma pauperis habeas corpus cases or appeals brought under 28 

U.S.C. §§ 2254 and 2255. 

 III. 

 Turning to the substance of the request for a 

certificate of appealability, we find no basis for granting it. 

In his plea for habeas relief, Santana reproaches his counsel for 

failure to object to a miscalculation of his sentence, asserting 

that the Sentencing Guideline range for his offense requires a 

minimum sentence of only 87 months. The crime to which Santana 

pled guilty, however, carries a mandatory statutory minimum 

sentence of 120 months. 21 U.S.C. §§ 846, 841 (b)(1)(A). In a 

case such as this, where the statutory minimum sentence exceeds 

the defendant's guideline range, the court is required to impose 

the statutory minimum sentence. U.S.S.G. § 5G1.1(c)(2); see alsoUnited 

States v. Melendez, 55 F.3d 130, 135 n.1 (3d Cir. 1995) 

("Where a statutory minimum is above the Guideline range, it 

becomes the guideline sentence.") (internal quotation marks 

omitted), aff'd, 116 S. Ct. 2057 (1996). 

 We recognize that a statutory minimum sentence is not 

an absolute barrier to a lesser sentence: 

 Upon motion of the Government, the court shall have the 

 authority to impose a sentence below a level 

 established by statute as minimum sentence so as to 

 reflect a defendant's substantial assistance in the 

 investigation or prosecution of another person who has 

 committed an offense. 

18 U.S.C. § 3553(e). In Santana's case, however, the barrier 

remains inviolable. A court is powerless to impose a sentence 

below a statutory minimum without a motion of the government; in 

this case, the prosecution made no such motion. See Melendez, 55 

F.3d at 134 ("Congress has authorized sentences below a statutory 

minimum only upon the prosecution's motion."). Moreover, by his 

own admission, the only assistance that Santana provided the 

government related to his own involvement in the conspiracy, 

Memorandum of Law in Support of Petition at 6-7, not that of 

"another person who has committed an offense." 28 U.S.C. § 

3553(e). Thus, Santana cannot fault his counsel for failure to 

press the government to make such a motion. 

 Because the court was powerless to impose a sentence 

below the statutory minimum, Santana cannot show that his 

attorney's performance was objectively unreasonable as required 

by a claim for ineffective assistance of counsel. Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984). 
 IV. 

 For the foregoing reasons, we hold that the filing fee 

payment requirements of the PLRA set forth in 28 U.S.C. § 1915(b) 

do not apply to habeas corpus petitions or to appeals from the 

denial of such petitions. Because we also find that Santana's 

claim of ineffective counsel is without merit, his request for a 

certificate of appealability will be denied.