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. e du/thir dc ir c uit_1996/52UNITED 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 J udges. (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 S e

Kevin McNulty, Esq. U.S. Attorney's Office
970 Broad St. Newark, New Jer sey 07101

Counsel for App elleeOPINION OF THE COURT

BECKER, Circuit Judge.

Ernesto Santana has asked this Court to gr ant a certificate of appealability for his challenge to t he district court's denial of habeas corpus relief pursuant to 28 U.S.C. § 2255. As a preliminary matter, Santana's request r equires us to determine whether the filing fee payment requiremen ts of the Prison Litigation Reform Act of 1995 apply to in fo rma pauperishabeas corpus petitions and appeals. We conclude that the y do not. Reaching the merits of the request, we find t hat 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 o f conspiracy to possess with intent to distribute more than five kilograms of
cocaine in violation of 21 U.S.C. §§ 841 & 846. Th e district court sentenced him to prison for the statutory min imum period of 120 months. In the present habeas petition filed p ursuant to 28 U.S.C. § 2255, Santana claims that his counsel rend ered 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 mis conception 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 c ourt denied the request for a writ of habeas corpus. Th e district court concluded that, because the statutory minimum sentence
associated with Santana's offense exceeded the Sent encing Guideline range asserted by Santana, the request fo r 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 app ealability. See 28 U.S.C. § 2253 (c)(1)(B).

II.

A. Before examining the merits of Santana's reques t, 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 enact ed the PLRA as
Title VII of the Omnibus Consolidated Rescissions a nd Appropriations Act of 1996, Pub.L. 104-134, 110 Sta t. 1321 (1996). Section 804 of the PLRA, which amends 28 U .S.C. § 1915, redefines the rights and obligations of litigants w ho are granted in forma pauperis status. Prior to the passage of the PLRA,imprisoned litigants who were granted leave to proc eed 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 fu lfill their filing fee obligations. If an imprisoned litigant' s funds are insufficient to pay the full filing fee, the prison er must pay an initial partial filing fee. Thereafter, the prison er must make monthly payments to the court until the filing fee is paid in

full. In the present case, the district court gr anted Santana's motion to proceed in forma pauperis on ap peal. Thus, if the PLRA is applicable to a habeas corpus action such as Santana's, then he must somehow pay filing and dock eting fees of $105 in order to obtain judicial review of his peti tion 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 pau perislitigants nor expressly excludes habeas corpus proceedings from its scope. At first blush, the plain meaning of the P LRA appears to require petitioners for habeas relief to fulfill its filing fee obligations. Habeas corpus proceedings are tec hnically civil actions. Ex Parte Tom Tong, 108 U.S. 556, 559 (188 3). Not only do habeas petitions fit within the literal scope of the PLRA, but § 802(a) of the PLRA, which applies to "civil actio n[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 i n the filing fee provision if it had intended. See, e.g., Van D oren v. Mazurkiewicz, 1996 WL 506627*1 (E.D. Pa.) (holding that the PLRA applies to habeas corpus proceedings); see also Gre en v. Nottingham, 90 F3d 415, 418 (10th Cir. 1996) (holdi ng that "petitions for a writ of mandamus are included with in the meaning of the term 'civil action'" for purposes of the PLRA). We do not believe, however, that the meani ng 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 act ion"; they are independent civil dispositions of completed crimina l 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 "crim inal" proceedings, which are intended to punish and requi re 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 pr oceedings and proceedings for the punishment of crimes are crimin alproceedings."). In light of their hybrid nature, h abeas

proceedings are often determined to be outside the reach of the phrase "civil action." See, e.g., Schlanger v. Sea mans, 401 U.S. 487, 490 n.4 (1971) (nationwide service of process under 28 U.S.C. § 1391(e) applicable in civil proceedings ag ainst United States employees and officers is not available in h abeas corpus proceedings); Harris v. Nelson, 394 U.S. 286 (1969) (civil discovery rules do not automatically apply to habea s proceedings); Ewing v. Rodgers, 826 F.2d 967 (10th Cir. 1987) (a habeas corpus suit is not a "civil action" for purp oses of an award of attorneys fees under the Equal Access to J ustice Act, 28 U.S.C. § 2412(d)(1)(A)); Boudin, 732 F.2d 1107 (sim ilar); Dillard v. Blackburn, 780 F.2d 509 (5th Cir. 1986) ("[H]abe as cases are not automatically subject to the rules governing ci vil actions."); see also Advisory Committee Note to Rul e 11 of the Rules Governing § 2254 Cases (Federal Rules of Civi l Procedure apply to habeas corpus proceedings only to the exte nt they are not inconsistent with the habeas rules). Furthermore, the express exclusion of habe as proceedings found in § 802(a) of the PLRA does not require us to hold that habeas proceedings are "civil actions" fo r purposes of the PLRA. Section 802, which amends 18 U.S.C. § 36 26, limits the power of the federal courts to issue orders of reli ef from prison conditions by requiring that a "prison release orde r" be issued by a panel of three judges. A "prison release orde r," defined as
an order "that directs the release from or non admi ssion of prisoners to a prison," § 3626(g)(4), contemplates relief akin to that provided by a writ of habeas corpus. Thus, wh ereas the phrase "civil action" used in the PLRA's provision regarding filing fees does not clearly encompass habeas proce edings, the text of § 802 does. As a result, in order to disti nguish between prison release orders and habeas proceedings, Congr ess felt compelled to exclude expressly such proceedings fro m the scope of
§ 802. Finally, the plain meaning interpretation of the PLRA is undermined by Congress's passage of the antiterr orism law proximate to its enactment of the PLRA. On April 2 4, 1996, two days before it passed the PLRA, Congress passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Aimed a t curbing groundless litigation, the AEDPA imposes significan t restrictions on the filing of second or successive petitions for habeas corpus relief. If Congress had wanted to reform the in fo rma pauperisstatus of habeas petitioners, it might have done so in the AE DPA; yet nothing in the AEDPA changes the filing fees at tached to habeas petitions or a prisoner's obligation to pay those filing

fees. Because of the foregoing reasons, we belie ve that the phrase "civil action" as used in § 1915(b) lacks a plain meaning. We must therefore consider whether the phrase inclu des habeas corpus proceedings in this context. The two courts that have previously considered this issue agree that Congres s did not intend to include habeas proceedings in the categor y 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 d etermining

whether a statute governing "civil actions" applies to habeas corpus proceedings, we must examine its context. S ee In re Grand Jury Subpoena Duces Tecum Dated January 2, 1995 (Si mels), 775 F.2d 499, 503 (2d Cir. 1985) ("The application of e ach statute or rule using the words `civil action' must be decided on the basis of its language, its history and its purpose."). I n Reyes, 90 F.3d at 678, Judge Newman noted that nothing in the text or legislative history of the PLRA "indicate[s] that C ongress has endeavored to make the filing fee payment requireme nts to apply to habeas corpus petitions [or appeals]." Rather, Congress enacted the PLRA primarily to curtail claims brough t by prisoners
under 42 U.S.C. § 1983 and the Federal Torts Claims Act, most of which concern prison conditions and many of which a re routinely dismissed as legally frivolous. See H.R. CONF. REP . NO. 104-378, 104th Cong., 2d Sess. (1996) (The PLRA "limit[s] th e 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 pr isoner who "sued demanding that he be issued Reebok ... instea d of Converse" brand shoes.").
The text of the PLRA itself reflects this focus. Section 802 of the PLRA limits remedies in prison c onditions cases. Section 803 restricts § 1983 actions by req uiring prisoners to exhaust their administrative remedies prior to filing such claims. See 42 U.S.C. § 1997(e). Sect ion 806 narrows the availability of relief under the Federa l 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 u pon 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 acti ons to which the PLRA applies are prisoners' suits seeking relie f 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 wh ole, it is apparent that Congress did not intend for the statu te to apply to habeas proceedings. The PLRA establishes an elabor ate installment payment plan by which litigants may ful fill their filing fee obligations, yet does not increase the $ 5 filing fee for a habeas corpus petition. In comparison, the f iling fee for a civil complaint is $120.00. 28 U.S.C. § 1914(a). Congress surely did not intend for the installment plan of t he PLRA to apply to habeas corpus actions merely to assure def erred 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 t o habeas corpus actions would prohibit a prisoner who had fi led three groundless civil suits from seeking habeas relief f rom unlawfulimprisonment. As Judge Posner observes in Martin, 1996 WL 528816

*2, "[t]his result would be contrary to a long trad ition of ready access of prisoners to federal habeas corpus." Thi s is a result

that we cannot countenance. For the foregoing reasons, we conclude tha t the filing fee payment requirements of the PLRA set forth in 2 8 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 br ought 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 h is counsel for failure to object to a miscalculation of his senten ce, asserting that the Sentencing Guideline range for his offense requires a minimum sentence of only 87 months. The crime to w hich 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 sent ence exceeds the defendant's guideline range, the court is requi red 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. 1 995) ("Where a statutory minimum is above the Guideline range, it becomes the guideline sentence.") (internal quotati on 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 a s 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, t he barrier remains inviolable. A court is powerless to impose a sentence below a statutory minimum without a motion of the g overnment; in this case, the prosecution made no such motion. Se e Melendez, 55 F.3d at 134 ("Congress has authorized sentences bel ow a statutory minimum only upon the prosecution's motion."). Mor eover, by his own admission, the only assistance that Santana pro vided the government related to his own involvement in the co nspiracy, Memorandum of Law in Support of Petition at 6-7, no t that of "another person who has committed an offense." 28 U.S.C. § 3553(e). Thus, Santana cannot fault his counsel fo r failure to press the government to make such a motion. Because the court was powerless to impose a sen tence below the statutory minimum, Santana cannot show th at 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 fil ing fee payment requirements of the PLRA set forth in 28 U. S.C. § 1915(b) do not apply to habeas corpus petitions or to appea ls from the denial of such petitions. Because we also find tha t Santana's claim of ineffective counsel is without merit, his request for a certificate of appealability will be denied.