UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO. xxxxxxxx





BRIEF OF AMICUS CURIAE



ON BEHALF OF PETITIONER







In Re: xxxxxxxxxxxx, Petitioner.



JURISDICTION

This Court has original jurisdiction over Petitions for Writs of Prohibition under the All Writs Act, 28 U.S.C. 1651. In the alternative, if the Petition for Writ of Prohibition in this case is construed as a petition for writ of habeas corpus, this Court has jurisdiction under 28 U.S.C. 2241(a).

ISSUES PRESENTED FOR REVIEW

This amicus brief, filed by the Federal Public Defender on behalf of Petitioner Peter C. xxxxxxx, addresses the issues set forth in this Court's orders of November 21, 1996, and December 23, 1996:

(1) Assuming that the petition for writ of [prohibition] should be construed as a writ of habeas corpus and should have been brought in the jurisdiction in which the inmate is incarcerated, see Chatman-Bey v. Thornburgh, 864 F.2d 804, 809-11 (D.C. Cir. 1988) (in banc), do the filing fee provisions of the Prison Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321 (1996), apply to habeas proceedings.

2) [What is] the effect of petitioner's release from prison on the Prison Litigation Reform Act filing fee requirements. See McGann v. Commissioner, Social Security Administration, 96 F.3d 28 (D.C. Cir. 1996) (PLRA filing fee requirements do not apply to litigant who has been released from prison).

(3) Whether the petition presents a live controversy in light of petitioner's release. See Lane v. Williams, 455 U.S. 624 (1982) (habeas petition challenging sentence rendered moot by prisoner's release).

The brief filed by Petitioner Peter C. xxxxxxx sets forth his substantive issues and arguments.

STATUTES AND REGULATIONS

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

STATEMENT OF THE CASE

This case is before this Court on Peter C. xxxxxxx's Petition for Writ of Prohibition, filed in this Court on May 23, 1996. Petitioner has set forth the facts underlying his Petition in his brief at pages 1-5.

SUMMARY OF ARGUMENT

Regardless of whether Petitioner's submission to this Court is treated as a petition for writ of prohibition, as styled by Petitioner, or a petition for writ of habeas corpus, the filing fee provisions of Section 804 of the Prison Litigation Reform Act ("PLRA"), Pub. L. 104-134, 110 Stat. 1321 (1996), do not apply. Circuit courts deciding the issue have unanimously held that the PLRA filing fee requirements are directed at civil prison condition cases and do not apply to petitions for habeas corpus. Courts have applied similar reasoning to hold that petitions for other writs in criminal cases are not subject to the PLRA filing fee requirements. Petitioner's release from prison also places him outside the provisions of the PLRA. The PLRA's filing fee requirements apply only to prisoners. The elaborate payment scheme for filing fees set out in the PLRA depends on the existence of a prison account from which to draw payments. When a prisoner is released, his account is closed, and the filing fee provisions of the PLRA no longer can be applied.

Finally, Petitioner's release from prison on parole does not render his case moot. Assuming Petitioner's petition is deemed one for habeas relief, Petitioner is still "in custody" to the extent he is on parole and subject to restrictions on his liberty. Petitioner's challenges to the actions of the Parole Commission and its erroneous records are live controversies as long as he is subject to its jurisdiction or could suffer adverse consequences based on the records maintained by the Commission.

ARGUMENT

I. THE FILING FEE REQUIREMENTS OF THE PRISON LITIGATION REFORM ACT DO NOT APPLY TO PETITIONS FOR EITHER WRITS OF HABEAS CORPUS OR WRITS OF PROHIBITION AS NEITHER OF THOSE ACTIONS ARE THE TYPE OF "CIVIL ACTION" TO WHICH THE PLRA IS DIRECTED

The Prison Litigation Reform Act was enacted in order to limit and deter frivolous prison condition cases. See H.R. Conf. Rep. No. 104-378, 104th Cong., 2d Sess. (1996). Section 804 of the Act, amending 28 U.S.C. 1915, requires a prisoner bringing a "civil action" in forma pauperis to pay a filing fee in installments out of the prisoner's account:

(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.

Section 804(a)(3) (adding new 1915(b)). The term "civil action" is not defined in the PLRA. Because certain civil actions such as habeas petitions (1) and petitions for other writs do not appear to fall within the intended scope of the term "civil action" in the PLRA, the issue of whether these actions are subject to the filing fee requirement has been before several circuits.

Those courts that have decided the issue of whether the PLRA filing fee requirements apply to petitions for writs of habeas corpus (2) have unanimously held that they do not. See Naddi v. Hill, 1997 WL 11613 (9th Cir. Jan. 15, 1997); United States v. Cole, 101 F.3d 1076, 1076 (5th Cir. 1996); Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996); Martin v. United States, 96 F.3d 853, 855-56 (7th Cir. 1996); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996). Courts that have decided the issue with respect to petitions for other writs arising out of criminal cases have ruled similarly. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (petition for writ of mandamus); Martin v. United States, 96 F.3d at 854-55 (petition for writ of mandamus); In re: Nagy, 89 F.3d 115, 117 (2d Cir. 1996) (petition for writ of mandamus). In reaching their decisions, the courts have reasoned that petitions for habeas corpus and similar writs do not fall within the meaning of "civil action" in the PLRA.

As a starting point, although petitions for habeas corpus and petitions for similar writs 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. These petitions are a means of access through a civil petition to an underlying criminal judgment or sentence for the purpose of correcting errors. Unlike traditional civil actions, they are not vehicles for damages. Rather, habeas petitions and petitions for similar writs seek specific performance. Courts have recognized their special status and distinguished them from other civil actions in many instances. For example, habeas cases are governed by their own procedural rules. In 2254 habeas cases, a court may apply the Federal Rules of Civil Procedure at its discretion. Fed. R. Governing Sec. 2254 Cases 11 (and Advisory Comm. Notes to Rule 11). In 2255 proceedings, a court may apply the Federal Rules of Criminal Procedure at its discretion. Fed. R. Governing Sec. 2255 Proceedings 12 (and Advisory Comm. Notes to Rules 1, 12); see Harris v. Nelson, 394 U.S. 286, 293-94 (1969) ("Essentially, the [habeas] proceeding is unique."). (3) Given the special nature of such petitions, then, it should not be presumed that they fall within the phrase "civil actions."

Considering the text of the PLRA in its entirety and the meaning of "civil action" within this context, it is clear that petitions for habeas corpus and similar writs are not "civil actions" subject to the filing fee provisions. The Act as a whole focuses on prison condition cases. 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 civil actions by prisoners who previously have brought 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" apply only to prison condition cases in order to deter such litigation.

Furthermore, specific language in Section 804 supports this interpretation of the term "civil action." Section 804(a)(1)(F) requires that prisoner trust fund account information be submitted prior to filing of "the complaint," and Section 804(a)(3) requires that the initial partial filing fee be calculated based on the average account balance for the six months preceding the filing of "the complaint." Filing a complaint is the first step in a traditional civil action. See Fed. R. Civ. P. 3 ("A civil action is commenced by filing a complaint with the court.") Petitions for habeas corpus or similar writs do not involve the filing of a "complaint."

Finally, imposing the PLRA filing fee requirements in habeas cases would not make sense given the minimal 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 a 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 and similar writs were not intended to be treated as "civil actions" under 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 habeas petitions and motions pursuant to 2255, limiting the use of such actions by prisoners, but did not impose any filing fee requirements.

Petitioner has styled his petition as one for a writ of prohibition. This Court has suggested in its first briefing Order that the petition may be construed as one for a writ of habeas corpus. Regardless of style, Petitioner's action is a hybrid civil/criminal action that does not fit within the term "civil action" in the PLRA. Petitioner, through a civil petition, seeks to correct the parole determination in his criminal case and the records of such determination. For the reasons given above, this Court should not impose filing fees under the PLRA in his case.

II. THE FILING FEE REQUIREMENTS OF THE PRISON LITIGATION REFORM ACT DO NOT APPLY TO THIS PETITION BECAUSE PETITIONER IS NO LONGER A PRISONER AS REQUIRED BY THE ACT

This Court has directed the parties to address the effect of Petitioner's release from prison on the application of the PLRA filing fee requirements in light of McGann v. Commissioner, 96 F.3d 28 (2d Cir. 1996). Section 804(a)(3) of the PLRA sets out a payment plan for civil action filing fees whereby payments are made from a prisoner's institutional account in amounts based on the income into the account. There are no equivalent designs for payment of filing fees by non-prisoners who file actions in forma pauperis.

The McGann court held that prisoners subject to the PLRA filing fee requirements are obligated to make fee installment payments only so long as they are in prison. Upon release, the obligation ceases under the PLRA and the obligation to pay any remaining filing fees is then based on ability to pay, i.e., it depends on whether or not the released prisoner qualifies for in forma pauperis status. The court reasoned that because payments under the PLRA are tied to the existence and amount of a prisoner's prison account, it would be impossible to apply the law without such an account. Id. at 29-30. Furthermore, if a prisoner were to have continuing payment obligations upon release, he would be obligated to pay the balance of the fees in full at that time because his prison account would be closed, thus cutting off the source provided in the PLRA for collection of the installment payments. Few prisoners would be able to pay such fees in full at the time of release without undue hardship. (4)

Here, Petitioner was released from prison on December 17, 1996. His prison account would have been closed at that time, making any application of sec. 804(a)(3) now impossible.

III. PETITIONER'S CASE IS NOT MOOT BECAUSE PETITIONER REMAINS IN THE CUSTODY OF THE PAROLE COMMISSION

Petitioner was released from prison December 17, 1996, to the custody of the United States Parole Commission to serve the remainder of his sentence on parole. It is settled law that a prisoner who has been placed on parole is still "in custody" for purposes of bringing a petition for habeas corpus. See Jones v. Cunningham, 371 U.S. 236 (1963); see also United States v. Cooper, 725 F.2d 756, 757 (D.C. Cir. 1984).

This Court questioned whether Petitioner's case was moot in light of Lane v. Williams, 455 U.S. 624 (1982). Petitioner's case can easily be distinguished from Lane by the fact that he is presently on parole. In the Lane case, respondents challenged their sentences, seeking specific enforcement of plea agreements that did not include a mandatory term of parole. By the time the case was before the Supreme Court, respondents had been released from all custody, including parole.

Petitioner's claims concern the Parole Commission's exercise of authority over him and its records of decisions in his case. These actions could have consequences for any future determinations to release Petitioner from parole or, conversely, to reincarcerate him for a parole violation. Because Petitioner currently is under the authority of the Commission and could remain so for the duration of his sentence, his claims are not moot.

CONCLUSION

The brief filed by Petitioner Peter xxxxxxx sets forth his substantive issues. For the foregoing reasons, amicus urges this Court to find that the filing fee provisions of the PLRA do not apply to Petitioner. Further, amicus urges this Court to find that Petitioner's case is not moot.



Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER









________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

Amicus Curiae for Peter C. 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 Petitioner 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 Petitioner 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 on Peter C. xxxxxxx, c/o The Wire, 1638 Euclid Avenue, Miami Beach, FL 33139, by



first-class mail, postage prepaid.



___________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

1. The term "habeas" in this brief includes petitions for habeas corpus pursuant to 28 U.S.C. 2241 and 2254, and motions filed pursuant to 28 U.S.C. 2255.

2. Courts have decided this issue in the context of 2254 and 2255 cases. The same reasoning would apply to petitions for habeas relief under 28 U.S.C. 2241.

3. Other 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)).

4. The only other court to rule on this issue held that upon release, prisoners remain liable for any fees that were due, but not yet paid, under the payment schedule of Section 804(a)(3). Any remaining filing fees will be waived if the released prisoner is found not to have assets or means to pay the fees. Robbins v. Switzer, 1197 WL 4520 (7th Cir. Jan. 7, 1997). This ruling differs from the McGann ruling in that it does not relieve a prisoner of payment obligations that were due prior to the prisoner's release.