UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO.

BRIEF OF AMICUS CURIAE

ON BEHALF OF APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

xxxxxxxxx, Defendant-Appellant.

JURISDICTION

The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

This amicus brief, filed by the Federal Public Defender on behalf of Appellant Rodger xxxxxxx, addresses the issues set forth by this Court in its Order of November 21, 1996:

(1) Whether the district court had the authority to decide the merits of appellant's second motion filed pursuant to 28 U.S.C. § 2255 in the absence of a certification from this court granting appellant leave to file that motion. See 28 U.S.C. § 22[5]5, as amended by the Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (1996).

(2) Whether the filing fee provisions of the Prison Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321 (1996) (amending 28 U.S.C. § 1915) apply to this case.

In addition, this amicus brief provides supporting arguments for Appellant's third issue challenging the constitutionality of the crack cocaine sentencing guidelines based on Congress' racial motivations supporting those laws.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this amicus brief.

STATEMENT OF THE CASE

The following procedural history supplements Appellant's "Statement of Facts" as set forth in his pro se brief.

Defendant Rodger xxxxxxx was convicted and sentenced by the district court in 1991 on three counts pertaining to distribution of crack cocaine. Following his conviction, he timely filed an appeal with this Court. While his appeal was pending, Defendant filed a motion pursuant to 28 U.S.C. § 2255, which was denied by the district court on December 15, 1994, United States v. xxxxxxx, 870 F. Supp. 1140 (D.D.C. 1994), and affirmed by order of this Court on April 27, 1995 (App. 30).⁽¹⁾

On November 17, 1995, this Court affirmed Defendant's conviction on Counts One and Three, vacated his conviction on Count Two, and remanded for resentencing on Count One. United States v. xxxxxxx, 69 F.3d 1172 (D.C. Cir. 1995).

On May 23, 1996, after a date had been set for Defendant's resentencing by the district court, Defendant filed a pro se motion with that court, styled as a § 2255 motion, challenging the constitutionality of the crack cocaine sentencing laws and seeking to be resentenced under the more lenient cocaine powder guidelines. Defendant raised a novel claim in his motion: whether the crack cocaine sentencing guidelines, which require sentences far in excess of the sentencing guidelines for equivalent amounts of powder cocaine, are impermissibly race-based in that Congress justified the disparity on the need to protect Black communities from the adverse effects of cocaine trafficking. The district court denied Defendant's motion on the ground that it was duplicative of an earlier motion, but stated that "[t]he issues raised in the defendant's § 2255 Motion can and will be considered by the Court at [resentencing] and shall be given such weight as deemed appropriate in connection with defendant's resentencing." (App. 32-33).

Defendant then filed a notice of appeal on June 27, 1996, appealing the district court's denial of his § 2255 motion.

On July 18, 1996, the district court held a resentencing hearing. Among other issues, the court heard Defendant's arguments on the constitutionality of the crack cocaine sentencing laws, as previously raised in his § 2255 motion. (Tr. 10-23). The government contended that Defendant's § 2255 motion was not properly filed because "[t]he 2255 happens from a final judgment and conviction, and that has not yet occurred." (Tr. 42). The district court then resentenced Defendant on Counts One and Three. In response to Defendant's constitutional arguments at resentencing, the district court ruled that those issues were now before the Court of Appeals and, therefore, the district court did not have jurisdiction over them. It further ruled that Defendant had offered additional legal arguments at the resentencing, but that those arguments were without legal merit.⁽²⁾ United States v. xxxxxxx, 933 F. Supp. 32, 35 (D.D.C. 1996).

SUMMARY OF ARGUMENT

The district court had jurisdiction to consider on resentencing Defendant's issues relating to the constitutionality of the crack cocaine sentencing laws. Absent limiting instructions from a circuit court, a district court on resentencing is to consider a sentence de novo and may consider new issues raised by a defendant. Defendant's pleading in this case, improperly styled as a § 2255 motion but filed with the district court in connection with his resentencing hearing, should be construed as a motion to raise his new issues on resentencing or as a memorandum in aid of resentencing.

Courts have discretion to construe pro se filings as properly filed and should generously construe filings by pro se litigants so as to allow consideration of their claims. Because Defendant's pleading was timely filed in conjunction with his resentencing, and because the district court allowed Defendant to present his claims at the resentencing hearing, it apparently considered Defendant's filing as raised in connection with the resentencing hearing. This Court also should construe Defendant's pleading as properly before the district court in that context.

This Court should further construe Defendant's appeal as properly before it. Defendant's appeal of the district court's denial of his "§ 2255 motion" is, more properly, an appeal from his resentencing. Defendant filed his appeal prior to the district court's resentencing judgment and order, which is construed as timely filed pursuant to FED. R. APP. P. 4(b).

As argued by Defendant in his brief, the crack cocaine sentencing guidelines are race-based and in violation of the Fifth Amendment equal protection guarantee of the U.S. Constitution. Congress affirmed in 1995 the cocaine sentencing laws, which punish offenses for crack cocaine far more severely than those for powder cocaine, primarily in order to protect Black communities from the adverse effects of cocaine trafficking. The Supreme Court has held that race-based laws, including laws designed to benefit targeted races, are subject to strict scrutiny where it can be shown that race was the predominant motivating factor for enacting or affirming the law. To satisfy strict scrutiny, a law must be shown to be narrowly tailored to serve a compelling government interest. The severe disparity between sentencing for crack and powder cocaine violations cannot overcome strict scrutiny.

This Court should remand this case to the district court for factual findings on Congress' motivations for affirming the crack cocaine sentencing guidelines and for a decision on the merits after full consideration of Defendant's arguments. In the alternative, this Court should consider the merits of Defendant's constitutional claims and strike down the crack cocaine sentencing guidelines as unconstitutional.

Finally, this is a direct appeal from a criminal resentencing and, therefore, not subject to payment of filing fees for "civil actions" or "appeals" under the Prison Litigation Reform Act ("PLRA"). The PLRA targets civil prison litigation and, therefore, does not apply to appeals in criminal cases. Even if the Court finds that this is an appeal from denial of a § 2255 motion, the filing fee provisions of the PLRA would not apply. Circuit courts deciding the issue have unanimously held that the PLRA filing fee requirements do not apply to petitions for habeas corpus.

ARGUMENT

I. THE DISTRICT COURT HAD JURISDICTION TO CONSIDER IN THE CONTEXT OF A RESENTENCING HEARING DEFENDANT'S CONSTITUTIONAL ISSUES WITH THE CRACK COCAINE SENTENCING LAWS; FURTHERMORE, DEFENDANT'S DIRECT APPEAL FROM THE DISTRICT COURT IS NOW PROPERLY BEFORE THIS COURT FOR CONSIDERATION

A. The District Court had Jurisdiction to Consider Defendant's Constitutional Claims

Just prior to his resentencing hearing in the district court, Defendant Rodger xxxxxxx filed pro se a motion raising constitutional issues in connection with his resentencing. The form of the motion, styled by Defendant as a § 2255 motion, was not proper in this case. This Court had remanded Defendant's case for resentencing, and the district court had set a date for resentencing and requested parties to file memoranda in aid of resentencing. Thus, there was no sentence yet imposed for Defendant to attack collaterally. Defendant's self-styled collateral claim, which related to his upcoming resentencing, should have been styled as a motion to raise new issues on resentencing or as a memorandum in aid of sentencing.

The district court had jurisdiction to decide Defendant's constitutional issues regarding the crack cocaine sentencing laws in the resentencing hearing. This Court had remanded Defendant's case to the district court for resentencing on Count One, without further instructions or restrictions on the district court. Where no limitations are placed on remand, a district court may consider new arguments by defendant relevant to the sentencing decision. E.g., United States v. Caterino, 29 F.3d 1390, 1394 (9th Cir. 1994) ("The general rule is that a district court on remand may take any matter into account and may hear any evidence relevant to sentencing.")(citing United States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991); United States v. Cappas, 29 F.3d 1187, 1190 (7th Cir. 1994) ("a defendant may advance -- in a resentencing following the vacation of a previous sentence -- any arguments that could have been brought the first time"); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989) ("in the interest of truth and fair sentencing a court should be able on a sentence remand to take new matter into account on behalf of . . . the defendant.")); cf. United States v. Sanchez, 88 F.3d 1243, 1248 (D.C. Cir. 1996) (allowing defendant to raise all of his substantive challenges in a new appeal after resentencing).

Because the district court had jurisdiction over Defendant's claims, it was proper for the court to consider those claims even when brought through an improperly styled filing. Courts should construe pro se filings so as to allow consideration of their claims. See Andrews v. United States, 373 U.S. 334, 338 (1963) ("adjudication upon the underlying merits of [pro se] claims is not hampered by reliance upon the titles petitioners put upon their documents" (citations omitted)). "[P]ro se litigants are held to less stringent standards than those who are counseled by attorneys. . . . Courts will go to particular pains to protect pro se litigants against the consequences of technical errors if injustice would otherwise result." Sanchez, 88 F.3d at 1247 (citations omitted). Here, the district court was correct to allow Defendant to present his claims at resentencing. The court, however, should not have denied Defendant's § 2255 motion as brought. Instead it should have decided the issues only in the context of the resentencing hearing.

Other courts have worked similar constructions when faced with improper filings that otherwise could be decided on the merits if renamed. In Heflin v. United States, 358 U.S. 415 (1959), the petitioner brought a pro se § 2255 motion challenging one of his sentences. Because petitioner was serving another sentence and not yet in custody on the challenged sentence, a § 2255 motion was not proper at that time. The Supreme Court, however, construed petitioner's action as one under FED. R. CRIM. P. 35 and decided the merits. See also Hill v. United States, 368 U.S. 424, 430 (1962) ("[A]lthough the petitioner denominated his motion as one brought under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, we may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure."). In an analogous case, this Court construed an appeal of a probation revocation, filed out of time, as a request for relief pursuant to § 2255. United States v. Webster, 492 F.2d 1048 (D.C. Cir. 1974). The Court concluded that "it is in the interests of justice to treat the papers before us as though [petitioner] had asked the District Court and this court for relief pursuant to 28 U.S.C. § 2255." Id. at 1051. See also United States v. Jordan, 915 F.2d 622 (11th Cir. 1990) (affirming district court's treatment of pro se motion styled pursuant to FED. R. CRIM. P. 35(a) as a § 2255 motion); United States v. Flenory, 876 F.2d 10 (3d Cir. 1989) (remanding motion brought pursuant to FED. R. CRIM. P. 35(b) to district court for consideration as § 2255 motion).

Likewise, this Court should construe Defendant's filing below in his favor. The district court had jurisdiction to consider Defendant's claims at resentencing. Furthermore, Defendant timely filed his motion so as to be considered at the resentencing hearing. Although the district court denied Defendant's motion, it appeared to leave a final decision on the merits open for consideration at the resentencing hearing. The court did not require Defendant to file another, properly styled pleading in order to have his claims addressed on resentencing. Therefore, the court effectively treated Defendant's filing as a resentencing matter.

B. Defendant's Appeal of the District Court's

Decision is Now Properly Before this Court

Construing Defendant's "§ 2255 motion" as either a motion to hear Defendant's claims on the merits in the resentencing hearing or as a memorandum in aid of resentencing, Defendant's appeal is now properly before this Court on direct appeal from the resentencing. Defendant filed an appeal from the district court's denial of his "§ 2255 motion." Although the appeal was filed prior to the district court's Order Resentencing Defendant and Memorandum Opinion, xxxxxxx, 993 F. Supp. 32, it should be treated as a properly filed appeal from that proceeding pursuant to FED. R. APP. P. 4(b). Rule 4(b) instructs courts to treat appeals filed after announcement of a decision, sentence or order but before entry of judgment, as timely filed after the entry of judgment. This Court, therefore, has jurisdiction to consider the merits of Defendant's claims raised in this case.

C. Second and Successive Motions Filed Pursuant to § 2255 are Subject to the Certification Requirements of the AEDPA

If this Court construes Defendant's improperly styled motion as a second motion filed pursuant to § 2255, it should grant him leave to supplement his motion to file for certification from this Court.⁽³⁾ Section 105 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (1996), amending 28 U.S.C. § 2255, requires that, prior to filing in the district court:

A second or successive motion must be certified . . . by a panel of the appropriate court of appeals to contain --

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme court, that was previously unavailable.Sec. 105(2).

Other circuits have held that second or successive habeas petitions filed after the effective date of the AEDPA, where the first petition was filed prior to the effective date, must comply with the certification requirements. See Roldan v. United States, 96 F.3d 1013, 1014 (7th Cir. 1996); Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996); Hatch v. Oklahoma, 92 F.3d 1012, 1014 (10th Cir. 1996); see also Felker v. Turpin, ___ U.S. ___, 116 S.Ct. 2333 (1996) (applying the new AEDPA requirements for successive petitions to a case where a first petition had been filed prior to the effective date of the AEDPA and a second petition filed after the effective date).

Defendant has new evidence from 1995 Congressional deliberations on the cocaine sentencing laws showing that Congress impermissibly based those laws on race in violation of the equal protection component of the Fifth Amendment. See Appellant's Brief 6-45; discussion infra sec. II. Defendant should be given an opportunity to show this Court that his § 2255 motion meets the certification requirements.

II. CONGRESS' AFFIRMATION OF THE CRACK COCAINE SENTENCING LAWS, IN WHICH SENTENCES FOR CRACK COCAINE ARE SUBSTANTIALLY LONGER THAN THOSE FOR POWDER COCAINE, WAS PREDOMINANTLY MOTIVATED BY RACIAL CONSIDERATIONS AND SHOULD BE SUBJECT TO STRICT SCRUTINY

Defendant in his brief contends that the crack cocaine sentencing guidelines, which provide for substantially longer penalties than sentencing guidelines for powder cocaine, see U.S.S.G. § 2D1.1 (1995), are unconstitutional race-based laws in violation of the equal protection component of the Fifth Amendment.⁽⁴⁾ Congress affirmed in 1995 the existing sentencing disparity, basing its decision on the adverse impacts of crack on Black and minority communities and a desire to help those specific communities by imposing harsher sentences on persons convicted of manufacturing or trafficking in crack cocaine compared to similar offenses for powder cocaine.

By way of background, Congress in section 280006 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 2097 (1994), directed the U.S. Sentencing Commission to study federal sentencing policy for possession and distribution of all forms of cocaine. Congress directed the Sentencing Commission to address specifically the need for differences in penalties between powder cocaine and crack cocaine. At that time, as now, there was a 100:1 quantity disparity between the amounts of powder and crack cocaine punishable at the same offense levels. See, e.g., U.S.S.G. § 2D1.1(c)(1) (a base offense level of 38 is applied for trafficking in 150 kg. of cocaine powder or 1.5 kg. of crack cocaine). In response, the Commission issued a report recommending that Congress eliminate the disparate treatment of crack and powder cocaine in the sentencing guidelines. United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (Feb. 1995). The Commission based its recommendation on the facts that crack and powder cocaine are the same drug with the same physiological and psychotropic effects and that the harms associated with crack cocaine that previously were used to support harsher penalties were already accounted for in guidelines sentence enhancements, e.g., sale of controlled substances to juveniles (U.S.S.G. § 2D1.2); use of juveniles to commit offenses (§ 2D1.2); offenses involving death (§ 2D1.1(a)); and use of firearms in connection with a controlled substance offense (§ 2D1.1(b)). Special Report to Congress at xiv-xvi; Appellant's Brief 29-49.

The Sentencing Commission then submitted to Congress amendments to the sentencing guidelines equalizing penalties for crack and powder cocaine. See 60 Fed. Reg. 25,074, Amendment 5 at 25,075-77 (May 10, 1995). Congress had until November 1, 1995, to disapprove the amendments or they would become effective on that date. See 28 U.S.C. § 994(o), (p). Congress disapproved Amendment 5 through the Federal Sentencing Guidelines Amendment Disapproval Act ("Disapproval Act"), Pub. L. 104-38, 109 Stat. 334 (1995).

Defendant quotes extensively throughout his brief from the floor debate on the Disapproval Act. The quoted material shows that Congress affirmed the existing sentencing disparity in order to protect Black communities⁽⁵⁾ from the adverse effects of crack cocaine trafficking. See 141 Cong. Rec. H10,255-284 (Oct. 18, 1995); 141 Cong. Reg. S14,764-782 (Sept. 29, 1995); Appellant's Brief passim. Congress chose to target for harsher punishment behavior that it believed disproportionately affects Black communities, thereby singling out and favoring for heightened protection from crime a particular racial group.

The equal protection component of the Fifth Amendment prohibits unequal treatment of people based on race.⁽⁶⁾ U.S. Const. amend. V. Federal laws that classify based on race will be subject to strict scrutiny and struck down unless those laws serve a compelling governmental interest and are narrowly tailored to further that interest. Adarand Constructors, Inc. v. Pena, ____ U.S. ____, 115 S.Ct. 2097, 2113 (1995). "This prohibition extends not just to explicit racial classifications, but also to laws neutral on their face but 'unexplainable on grounds other than race.'" Miller v. Johnson, ____ U.S. ____, 115 S.Ct. 2475, 2483 (1995) (quoting Shaw v. Reno, 509 U.S. ____, 113 S.Ct. 2816, 2825 (1993)). Where a law is facially neutral, it will be subject to strict scrutiny if "race was the predominant factor motivating the legislature's decision . . . . To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral . . . principles . . . to racial consideration." Miller, ____ U.S. at ____, 115 S.Ct. at 2488.

The evidence presented in Defendant's brief clearly shows Congress' motivations for affirming the harsher sentencing laws for crack cocaine. The statements by proponents of these sentencing laws further show that race was the "predominant factor" motivating Congress. Congress affirmed selectively strict crack cocaine laws in order to "get the problems out of their [minorities'] neighborhoods and get the crimes out of the streets . . . ." 141 Cong. Rec. at H10,262. The majority in Congress who affirmed the crack cocaine sentencing laws intended to target and punish more severely offenders who operate predominantly in Black communities, thus offering heightened crime protection to Black communities.

The Sentencing Commission's Special Report to Congress offered few other factors that could justify a sentencing disparity between crack and powder cocaine and none that could justify the severe disparity affirmed by Congress. See Special Report to Congress at i, xiv. Some of the reasons historically offered for harsher penalties for crack cocaine offenses were restated in the Congressional debates, e.g., "crack is more addictive than powder cocaine;⁽⁷⁾ it accounts for more emergency room visits; it is more popular among juveniles . . . ." None of these, however, can explain the severe disparity in the sentencing laws that Congress chose to affirm. Rather, it was Congress' concern with ridding minority neighborhoods of crime, and especially violent crime associated with the crack trade, that led to such severe sentencing laws for crack cocaine. See 141 Cong. Rec. at S14,780 ("Given what crack has done to our cities, it frankly amazes me to hear people arguing for lower sentences."); 141 Cong. Rec. at HR10,266 ("Crack cocaine offenses should be punished severely because of the threat it poses to society and, in particular, the communities in which it is used and sold.").

The race-based crack sentencing laws will not survive strict scrutiny, as they must do if they are to be upheld as constitutional. Attempting to curb violence in Black neighborhoods resulting from the drug trade, juvenile participation in drug trafficking and addiction may be compelling governmental interests, but the means by which Congress chose to do this -- i.e., severe sentences for trafficking in crack cocaine relative to powder cocaine -- are not narrowly tailored to fit those interests. See Special Report to Congress at xiv ("Congress' objectives with regard to punishing crack cocaine trafficking can be achieved more effectively without relying on the current federal sentencing scheme . . ."). As argued by Defendant, severe sentences for crack traffickers compared to the relatively lenient sentences for powder traffickers do not serve as a means of curtailing the supply of crack, which is manufactured from powder cocaine. Appellant's Brief 31-36, 41. In addition, there is no justification for incorporating additional severity into crack sentences in order to punish use of juvenile distributors or use of weapons frequently associated with the crack trade. The Sentencing Guidelines already provide enhancements for such factors.

Given the evidence presented here and in Appellant's brief of Congress' race-based motivations for affirming the crack cocaine sentencing laws, this Court should remand this case to the district court with instructions to make factual findings regarding Congressional motives and to decide Defendant's claims on the merits after full consideration.⁽⁸⁾ In the alternative, this Court should strike down the crack sentencing laws as unconstitutional and remand Defendant's case for resentencing in accordance with the cocaine powder sentencing laws.

III. DEFENDANT'S APPEAL OF A CRIMINAL RESENTENCING DECISION IS NOT SUBJECT TO THE FILING FEE PROVISIONS OF THE PLRA

Section 804 of the PLRA, Pub. L. 104-134, 110 Stat. 1321 (1996), amending 28 U.S.C. § 1915, requires a prisoner bringing a "civil action or fil[ing] an appeal in forma pauperis" to pay the filing fees for such action in installments out of the prisoner's prison account. 28 U.S.C. § 1915(b)(1),(2). Sections 1915(b)(1) and (2) do not further specify what type of "appeal" is subject to these filing fee provisions. It is not clear from this provision whether an "appeal" would include an appeal from a criminal conviction and sentence. The text of the PLRA as a whole supports the interpretation that the filing fee provisions apply only to appeals of judgments in civil actions. See Santana v. United States, 98 F.3d 752, 754 (3d Cir. 1996); Martin v. United States, 96 F.3d 853, 854 (7th Cir. 1996).

Amended § 1915(b)(1) and (2) set out an installment payment plan for payment of filing fees in prisoner litigation.⁽⁹⁾

The statute directs that at least partial payment of filing fees is to be made from a prisoner's account before the litigation will commence, based on the average monthly deposits and the account balance prior to filing the suit. In the prior section, § 1915(a)(2), the statute requires that only prisoners bringing "a civil action or appeal[ing] a judgment in a civil action or proceeding" submit to the court a certified copy of the prisoner's trust fund account statement for the prior six-month period. Reading these two sections together, then, supports the interpretation of "appeal" as meaning solely an appeal from a civil judgment.⁽¹⁰⁾ Furthermore, a prisoner filing a direct appeal from a conviction generally would not have a prison account with a prior balance from which to prepay a portion of the filing fees.

In a broader context, the PLRA as a whole focuses specifically on deterring frivolous prison condition cases. See H.R. Conf. Rep. No. 104-378, 104th Cong., 2d Sess. (1996). Sections 802 and 803 limit the relief available in prison condition cases and impose additional restrictions for filing such cases. Section 804, which contains the filing fee provisions, proscribes successive frivolous actions, except in cases where the prisoner is threatened with serious physical injury. Section 806 requires a physical injury to support a claim for mental or emotional injury, and Sections 807 and 808 require payment of a prisoner's obligations out of any monetary award received from prisoner litigation. Taken in context, then, the fee requirements for a "civil action or . . . an appeal" should apply only to civil prison condition cases in order to deter such litigation.

Defendant here appeals the district court's decision in a criminal resentencing hearing. Therefore, the filing fee provisions of the PLRA should not apply.

In the alternative, even if this Court characterizes Defendant's case as an appeal of a § 2255 motion, the PLRA filing fee provisions would not apply. Circuit courts deciding the issue have unanimously held that the PLRA filing fee requirements do not apply to § 2255 motions. See Naddi v. Hill, 1997 WL 11613 (9th Cir. Jan. 15, 1997); United States v. Cole, 101 F.3d 1076 (5th Cir. 1996); Santana v. United States, 98 F.3d 752 (3d Cir. 1996); Martin v. United States, 96 F.3d 853 (7th Cir. 1996); Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).

As those circuits have persuasively reasoned, although petitions for habeas corpus are technically civil filings, they do not fit precisely within the term "civil action" because they are hybrid civil/criminal actions. See Santana, 98 F.3d at 754. Habeas petitions are a means of access through a civil petition to an underlying criminal judgment or sentence for the purpose of correcting errors. Courts have recognized their special status and distinguished them from other civil actions in many instances.⁽¹¹⁾

Furthermore, imposing the PLRA filing fee requirements in habeas cases makes no sense given the amount generally charged for filing habeas petitions in the district court -- currently five dollars for filing a petition for habeas corpus under 28 U.S.C.

§ 2241 or § 2254 and nothing for filing a motion for relief under § 2255. Section 804's complex installment payment scheme for civil actions would be nonsensical as applied to these low filing fees in habeas cases.

As still further evidence that petitions for habeas corpus are not "civil actions" within the PLRA, Congress had an opportunity to require payment of filing fees in such cases through the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (1996), which was passed just two days before the PLRA. The AEDPA amended the law governing state and federal habeas petitions, limiting the use of such actions by prisoners, but did not impose any filing fee requirements.

CONCLUSION

For the foregoing reasons, amicus supports Defendant in urging this Court to consider his arguments on direct appeal and to remand his case to the district court for factual findings in connection with Defendant's constitutional claim and for further resentencing.

Further, this Court should hold that the filing fee provisions of the PLRA do not apply to Defendant in this case.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

Amicus Curiae for Rodger xxxxxxx

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief of Amicus Curiae on Behalf of Appellant does not exceed the number of words permitted pursuant to D. C. Circuit Rule 28(d).

_________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 29, 1997, I served by hand two copies of the foregoing Brief of Amicus Curiae on Behalf of Appellant and one copy of the accompanying Appendix on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001; and served one copy of each on Rodger xxxxxxx, Reg. No. xxxxxxx, FCI Loretto, PO Box 1000, Loretto, PA 15940, by first-class mail, postage prepaid.

___________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

1. "App." refers to the Appendix of Amicus, filed with this brief. References to the transcript of the July 18, 1996, resentencing hearing, included in the Appendix, are cited as "Tr."

2. It is not clear from the district court's opinion which issues the court believed it was without jurisdiction to decide and which it ruled were without legal merit. The court originally dismissed Defendant's "§ 2255 motion" as duplicative of earlier constitutional arguments. Contrary to the district court's ruling, however, Defendant had raised new claims in his "§ 2255 motion." In a prior § 2255 motion, Defendant had raised a different constitutional challenge to the cocaine sentencing laws, i.e., a disparate impact claim.

3. Any future § 2255 motion filed by Defendant challenging his sentence would not be a "successive" motion. Such motion would be filed after the district court's resentencing order and would be the first collateral attack on that judgment.

4. The constitutional argument presented here and in Appellant's brief could also apply to the federal statutes governing sentencing for crack cocaine violations. When Congress affirmed the existing sentencing guidelines for crack cocaine, it also decided against amending the existing statutes by failing to introduce a bill to that effect recommended by the U.S. Sentencing Commission.

5. The words "minority" and "inner city" appear to be used interchangeably with "Black" in this debate. While there is some discussion of the percentage of crack users that are Hispanic, the debate focuses on the impacts of crack cocaine on Black communities.

6. Although the Fifth Amendment contains no explicit equal protection clause similar to that in the Fourteenth Amendment, the Supreme Court has found such protections in the Due Process Clause of the Fifth Amendment. See Adarand Constructors, Inc. v. Pena, ____ U.S. ____, 115 S.Ct. 2097, 2106-08 (1995) (providing history of Court's application of equal protection through the Fifth Amendment).

7. This fact appeared to be called into question by the Sentencing Commission's Special Report to Congress. See Special Report to Congress at vi. Congress had access to the Sentencing Report prior to its debate on the crack cocaine sentencing issue.

8. The district court did not have the benefit of the full legislative history before it when deciding Defendant's claims.

9. (1) . . . [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of --

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

10. Sections 1915(b)(3) and (4) appear to imply that the fee payment provisions apply to civil and criminal appeals. Nothing in these two subsections, however, requires fee payments pursuant to § 1915(b)(1) and (2) for criminal appeals. Subsection (3) merely states that the fee collected in civil cases or civil or criminal appeals shall not exceed the amount set by statute. Because in forma pauperis litigants under § 1915 are always required to pay filing fees (to the extent they can), this subsection fits into the broader scheme of § 1915. The specific filing fee provisions of § 1915(b)(1) and (2) differ in that they require prepayment of filing fees before a prisoner can proceed with civil litigation. These prepayment obligations do not apply to other in forma pauperis parties, who are to pay filing fees whenever they can during the course of a case. The same reasoning would apply to

§ 1915(b)(4) which forbids dismissal of a civil case or civil or criminal appeal if the prisoner has no funds to pay the filing fee.

11. Examples where habeas corpus actions are distinguished from civil actions are provided in Santana at 754-55 (citing Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1971) (nationwide service of process for civil proceedings not available in habeas proceedings); Harris v. Nelson, 394 U.S. 286 (1969) (civil discovery rules apply at the discretion of the court in habeas proceedings); Boudin v. Thomas, 732 F.2d 1107 (2d Cir. 1984) (a habeas action is not a "civil action" under the Equal Access to Justice Act)).