IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 97-00013 ________________________
IN RE: LOUIS ELTON STONE,
Petitioner
____________________________________________
On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas
July 18, 1997 Before WIENER and PARKER, Circuit Judges, and LITTLE, District Judge.*
LITTLE, District Judge:
Louis Elton Stone ("Stone"), a federal prisoner,
petitions this court under 28 U.S.C. § 1651(a) for a writ of
mandamus prohibiting the district judge from improperly
influencing an administrative review of the calculation of his
sentence. Determining that the recent amendments to the
Prison Litigation Reform Act ("PLRA") do not apply to this
* Chief District Judge of the Western District of Louisiana, sitting by designation. proceeding, we, nonetheless, find that Stone has not
demonstrated an entitlement to the writ. The petition is
denied.
FACTS AND PROCEEDINGS BELOW
Stone was convicted in the United States District Court
for the Southern District of Texas on 20 November 1990 on drug
related charges. On 7 February 1991, the trial judge
sentenced Stone to 121 months of incarceration, allowing
credit for the time served in state custody since 1989.
Stone began serving his federal sentence in April 1991.
Finding that federal custodianship was in error, the
petitioner was transferred to the Texas Department of
Corrections in November 1993. When Stone was released from
state prison and returned to the custody of the Federal Bureau
of Prisons on 18 January 1995, his release date was changed
from July 1999 to November 2003. Arguing that 1999 was the
proper date because he was entitled to credit for the time
spent in state custody, Stone brought a proceeding pursuant to
28 U.S.C. § 2255 to correct his sentence.
Finding that only the United States Attorney General may
grant credit for time served in state custody, the district
judge denied Stone's post-conviction relief. Stone then
attempted to correct his sentence through an administrative
2 proceeding with the Attorney General's office. Stone alleges
that in the course of the administrative review, the Attorney
General, through the Bureau of Prisons, sought direction from
the trial judge and that the judge improperly influenced the
decision by the Bureau of Prisons. Complaining that the trial
judge's interference caused the Bureau to deny the correction
of his sentence, the petitioner submitted the instant writ of
prohibition to this court to direct the trial judge to refrain
from influencing the administrative review process.
In his petition for a writ of prohibition, also referred
to as mandamus, pro-se petitioner Stone seeks to proceed in
forma pauperis ("IFP") and contends that the Prison Litigation
Reform Act ("PLRA") does not apply to his application for IFP
status. Before we may reach the merits of the petition, the
court must first address the applicability of the PLRA.
ANALYSIS
I. Applicability of the PLRA
The PLRA amended 28 U.S.C. § 1915 to impose new filing
burdens on prisoners desiring to appear IFP in certain
proceedings. "A prisoner seeking to bring a civil action or
appeal a judgment in a civil action or proceeding" is subject
to the financial disclosure rules of § 1915 and must pay the
3 full filing fee. 28 U.S.C. § 1915(a)(2), (b)(1),(2). The
issue presented in this case is whether Stone’s petition for
mandamus is a civil action or an appeal, and therefore subject
to the provisions of the PLRA. Five other circuits1 have
passed on whether the PLRA applies to mandamus proceedings,
and we first addressed this question in Santee v. Quinlan.
Santee v. Quinlan, 115 F.3d 355 (5th Cir. 1997).
A. Characterization of the writ of mandamus
The plain language of the statute does not expressly
encompass a writ of mandamus. The Fifth Circuit has referred
to mandamus as a "remedy," In re First South Sav. Ass'n, 820
F.2d 700, 706 (5th Cir. 1987), that is available upon proof of
certain "elements," United States v. O'Neil, 767 F.2d 1111,
1112 (5th Cir. 1985). Although such terms suggest that
mandamus is a separate action, this circuit has also described
the writ as a method of "supervisory control of the district
courts." United States v. Comeaux, 954 F.2d 255, 261 (5th
Cir. 1992). In further support of the notion of mandamus as
a form of appeal, a panel of the Fifth Circuit held that a
1 In re Tyler, 110 F.3d 528 (8th Cir. 1997); Madden v. Myers, 102 F.3d 74 (3d Cir. 1996); Martin v. United States, 96 F.3d 853 (7th Cir. 1996); In re Nagy, 89 F.3d 115 (2d Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996).
4 court of appeals must have an independent basis of
jurisdiction over the matter because "the writ [of mandamus]
must issue 'in aid of' that jurisdiction." Hamilton v.
Moriai, 644 F.2d 351, 354 (5th Cir. 1981).
There is no uniform notion of the writ among the other
circuits, but most consider it to be a form of appeal. The
Third Circuit classified mandamus as "a procedural mechanism,"
Madden v. Myers, 102 F.3d 74, 77, (3d Cir. 1996), available to
courts of appeal "only 'to confine an inferior court to a
lawful exercise of its prescribed jurisdiction.'" Id. at n.3
(quoting Will v. United States, 389 U.S. 90, 95 (1967)). When
the writ is brought against the trial judge in a petitioner’s
case, the Seventh Circuit considered mandamus to be an
interlocutory appeal. Martin v. United States, 96 F.3d 853,
854 (7th Cir. 1996); accord In re Tyler, 110 F.3d 528, 529
(8th Cir. 1997).
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 97-00013 ________________________
IN RE: LOUIS ELTON STONE,
Petitioner
____________________________________________
On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas
July 18, 1997 Before WIENER and PARKER, Circuit Judges, and LITTLE, District Judge.*
LITTLE, District Judge:
Louis Elton Stone ("Stone"), a federal prisoner,
petitions this court under 28 U.S.C. § 1651(a) for a writ of
mandamus prohibiting the district judge from improperly
influencing an administrative review of the calculation of his
sentence. Determining that the recent amendments to the
Prison Litigation Reform Act ("PLRA") do not apply to this
* Chief District Judge of the Western District of Louisiana, sitting by designation. proceeding, we, nonetheless, find that Stone has not
demonstrated an entitlement to the writ. The petition is
denied.
FACTS AND PROCEEDINGS BELOW
Stone was convicted in the United States District Court
for the Southern District of Texas on 20 November 1990 on drug
related charges. On 7 February 1991, the trial judge
sentenced Stone to 121 months of incarceration, allowing
credit for the time served in state custody since 1989.
Stone began serving his federal sentence in April 1991.
Finding that federal custodianship was in error, the
petitioner was transferred to the Texas Department of
Corrections in November 1993. When Stone was released from
state prison and returned to the custody of the Federal Bureau
of Prisons on 18 January 1995, his release date was changed
from July 1999 to November 2003. Arguing that 1999 was the
proper date because he was entitled to credit for the time
spent in state custody, Stone brought a proceeding pursuant to
28 U.S.C. § 2255 to correct his sentence.
Finding that only the United States Attorney General may
grant credit for time served in state custody, the district
judge denied Stone's post-conviction relief. Stone then
attempted to correct his sentence through an administrative
2 proceeding with the Attorney General's office. Stone alleges
that in the course of the administrative review, the Attorney
General, through the Bureau of Prisons, sought direction from
the trial judge and that the judge improperly influenced the
decision by the Bureau of Prisons. Complaining that the trial
judge's interference caused the Bureau to deny the correction
of his sentence, the petitioner submitted the instant writ of
prohibition to this court to direct the trial judge to refrain
from influencing the administrative review process.
In his petition for a writ of prohibition, also referred
to as mandamus, pro-se petitioner Stone seeks to proceed in
forma pauperis ("IFP") and contends that the Prison Litigation
Reform Act ("PLRA") does not apply to his application for IFP
status. Before we may reach the merits of the petition, the
court must first address the applicability of the PLRA.
ANALYSIS
I. Applicability of the PLRA
The PLRA amended 28 U.S.C. § 1915 to impose new filing
burdens on prisoners desiring to appear IFP in certain
proceedings. "A prisoner seeking to bring a civil action or
appeal a judgment in a civil action or proceeding" is subject
to the financial disclosure rules of § 1915 and must pay the
3 full filing fee. 28 U.S.C. § 1915(a)(2), (b)(1),(2). The
issue presented in this case is whether Stone’s petition for
mandamus is a civil action or an appeal, and therefore subject
to the provisions of the PLRA. Five other circuits1 have
passed on whether the PLRA applies to mandamus proceedings,
and we first addressed this question in Santee v. Quinlan.
Santee v. Quinlan, 115 F.3d 355 (5th Cir. 1997).
A. Characterization of the writ of mandamus
The plain language of the statute does not expressly
encompass a writ of mandamus. The Fifth Circuit has referred
to mandamus as a "remedy," In re First South Sav. Ass'n, 820
F.2d 700, 706 (5th Cir. 1987), that is available upon proof of
certain "elements," United States v. O'Neil, 767 F.2d 1111,
1112 (5th Cir. 1985). Although such terms suggest that
mandamus is a separate action, this circuit has also described
the writ as a method of "supervisory control of the district
courts." United States v. Comeaux, 954 F.2d 255, 261 (5th
Cir. 1992). In further support of the notion of mandamus as
a form of appeal, a panel of the Fifth Circuit held that a
1 In re Tyler, 110 F.3d 528 (8th Cir. 1997); Madden v. Myers, 102 F.3d 74 (3d Cir. 1996); Martin v. United States, 96 F.3d 853 (7th Cir. 1996); In re Nagy, 89 F.3d 115 (2d Cir. 1996); Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996).
4 court of appeals must have an independent basis of
jurisdiction over the matter because "the writ [of mandamus]
must issue 'in aid of' that jurisdiction." Hamilton v.
Moriai, 644 F.2d 351, 354 (5th Cir. 1981).
There is no uniform notion of the writ among the other
circuits, but most consider it to be a form of appeal. The
Third Circuit classified mandamus as "a procedural mechanism,"
Madden v. Myers, 102 F.3d 74, 77, (3d Cir. 1996), available to
courts of appeal "only 'to confine an inferior court to a
lawful exercise of its prescribed jurisdiction.'" Id. at n.3
(quoting Will v. United States, 389 U.S. 90, 95 (1967)). When
the writ is brought against the trial judge in a petitioner’s
case, the Seventh Circuit considered mandamus to be an
interlocutory appeal. Martin v. United States, 96 F.3d 853,
854 (7th Cir. 1996); accord In re Tyler, 110 F.3d 528, 529
(8th Cir. 1997). The Tenth Circuit similarly characterized it
as "an aid of appellate jurisdiction," and "part of the
litigation of a case." Green v. Nottingham, 90 F.3d 415, 417
(10th Cir. 1996); accord Tyler, 110 F.3d at 529.
This circuit's approach in Comeaux and Hamilton, as well
as the majority of other circuits, convince us that the
mandamus petition in this case is not an independent civil
action, but may be considered a type of appeal. This does not
5 end our inquiry, however, as the PLRA only applies to civil
actions. In a mandamus proceeding, therefore, the nature of
the underlying action will determine the applicability of the
PLRA.2
B. Consideration of the underlying action
The Fifth Circuit, along with all other circuits that
have considered the issue,3 has found that the PLRA is
inapplicable to habeas corpus proceedings under 28 U.S.C.
§ 2255. United States v. Cole, 101 F.3d 1076 (5th Cir. 1996);
see also Carson v. Johnson, 1997 WL 211800, (5th Cir. 1997).
Stone's petition to this court arose out of a § 2255
petition for post-conviction relief. Respecting this
circuit's recent holding in Cole, we find that the mandamus
petition in the instant case is not subject to the fee payment
requirements of the PLRA.
2 Our focus on the underlying action accords with the treatment of these cases by circuits viewing mandamus as an appeal. For example, both the Second and Seventh Circuits found the PLRA applicable where the underlying action is civil (e.g., a § 1983 action), but inapplicable to criminal litigation and habeas cases. In re Nagy, 89 F.3d at 117; Martin, 96 F.3d 854- 855; but see Green, 90 F.3d at 418 (holding that all petitions for writs of mandamus are subject to the PLRA because to view the statute otherwise would “allow a loophole Congress surely did not intend in its stated goal”). 3 The following cases have held that the PLRA is inapplicable to § 2255 proceedings: United States v. Simmonds, 1997 LW 177560 (10th Cir. 1997); United States v. Levi, 1997 WL 222347 (D.C. Cir. 1997); Martin v. United States, 96 F.3d 853 (7th Cir. 1996); Santana v. United States, 98 F.3d 752 (3d Cir. 1996). Similarly, the following cases found the PLRA inapplicable to habeas corpus proceedings under § 2254: Anderson v. Singletary, 1997 WL 188471 (11th Cir. 1997); Smith v. Angelone, 1997 WL 198075 (4th Cir. 1997); Naddi v. Hill, 106 F.3d 275 (1997); Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
6 II. Merits of the petitioner’s application
Mandamus is reserved for extraordinary circumstances.
Kerr v. United States Dist. Ct., 426 U.S. 394, 403 (1976).
The petitioner must demonstrate (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.
O'Neil, 767 F.2d at 1112 (citations omitted); see also Allied
Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). In
the instant case, we find that the petitioner has failed to
make the requisite showing.
CONCLUSION
In this proceeding, Stone is not subject to the filing
fee provisions of the PLRA and, therefore, his IFP status is
approved. The petition for a writ of mandamus is DENIED.