United States Court of Appeals,
Fifth Circuit.
No. 96-31310.
Jerry SANTEE, Petitioner-Appellant,
v.
Patrick QUINLAN, Judge, Criminal District Court; Attorney
General State of Louisiana, Richard Ieyoub, Respondents-Appellees.
June 24, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before WIENER and PARKER, Circuit Judges, and LITTLE, District
Judge.*
PER CURIAM:
Jerry Santee ("Santee"), a Louisiana state prisoner, appeals
the order of the district court dismissing his petition for
mandamus as frivolous pursuant to 28 U.S.C. § 1915. We affirm.
FACTS AND PROCEEDINGS BELOW
In 1984, Santee was found guilty of manslaughter and sentenced
as a third-time felony offender to 42 years at hard labor. His
conviction and sentence were affirmed on direct appeal. State v.
Santee, 464 So.2d 922 (La.App. 4th Cir., 1985). He was
subsequently denied post-conviction relief by the state trial and
appellate courts.
In 1992 he filed a writ application with the Louisiana Supreme
Court. Santee alleges that the Louisiana Supreme Court allowed his
writ application to languish for over 3 years, ultimately
*
District Judge of the Western District of Louisiana, sitting
by designation.
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dismissing it as time-barred pursuant to LSA-C.Cr.P. Art. 930.8 and
State ex rel. Glover v. State, 660 So.2d 1189 (La., 1995), without
reaching the merits.
Santee then filed this pro se, in forma pauperis (IFP)
application for writ of mandamus, asking that the federal district
court order the Louisiana Supreme Court to review his state writ on
the merits. A magistrate judge recommended that this action be
dismissed as frivolous pursuant to 28 U.S.C. § 1915, giving four
reasons: (1) the complaint named the wrong party—a state trial
judge, not the Louisiana Supreme Court; (2) the action had been
dismissed, so there was nothing for the Louisiana Supreme Court to
act on, even if so ordered; (3) federal courts lack power to
mandamus state courts in the performance of their duties; (4) to
the extent that Santee's claim was one for habeas relief, he failed
to show that he had authorization to file a successive habeas
petition.
Santee filed objections to the magistrate judge's
recommendation. He also filed a motion to amend his complaint to
reflect the name of the proper defendant in response to the
magistrate's "wrong party" concern. That motion was denied and the
district court adopted the magistrate's recommendation and
dismissed Santee's claims as frivolous. Santee filed a notice of
appeal and the district court denied a certificate of
appealability.
PLRA FEE REQUIREMENTS
A prisoners bringing a civil action or an appeal of a
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judgment in a civil action is required by 28 U.S.C. § 1915(b), as
modified by the Prison Litigation Reform Act ("PLRA"), to provide
certain documentation and to pay some portion of the filing fees
prior to proceeding in forma pauperis. This court must initially
determine whether this appeal is "an appeal of a judgment in a
civil action" so as to fall within the PLRA requirements.
This is a question of first impression in the Fifth Circuit.
The Seventh Circuit has held that a petition for mandamus against
a judge presiding in a pending case is, in effect, a form of
interlocutory appeal. Martin v. United States, 96 F.3d 853, 854
(7th Cir.1996). Whether an interlocutory appeal is within the
scope of the PLRA turns on whether the litigation in which it is
filed falls within that scope. Id. The Second Circuit has
determined that the new fee requirements of the PLRA apply to
mandamus actions that seek relief analogous to civil complaints
under 42 U.S.C. § 1983, but not to writs directed at judges
conducting criminal trials. In re Nagy, 89 F.3d 115, 116 (2nd
Cir.1996).
We find the reasoning of Martin and Nagy persuasive and now
consider the nature of Santee's mandamus petition. Santee's
underlying litigation is a state court post-conviction petition for
writ of habeas corpus. Although writs of habeas corpus have in
some instances been termed "civil" or "hybrid," they do not fall
within the scope of PLRA's appeal of a civil action, but have their
own fee provisions. See United States v. Cole, 101 F.3d 1076 (5th
Cir.1996). We therefore hold that this mandamus is not an appeal
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of a civil action within the scope of PLRA, and that Santee need
not comply with the PLRA fee payment requirements prior to
proceeding IFP in this appeal.
CERTIFICATE OF APPEALABILITY
Santee filed a motion for a Certificate of Appealability
("COA") which is necessary in the appeal of the denial of a
petition for habeas corpus. See Drinkard v. Johnson, 97 F.3d 751,
755-56 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114,
137 L.Ed.2d 315 (1997). The district court filed the matter
initially as a petition for habeas corpus relief under 28 U.S.C. §
2254. The magistrate judge's report and recommendation, which the
district court adopted, says, "Finally, to the extent that
plaintiff's complaint can be read as presenting a claim for federal
habeas corpus relief, he makes no showing of having obtained
authorization from the United States Court of Appeals for the Fifth
Circuit to file a second or successive habeas petition in this
Court." The district judge later denied Santee's motion for COA.
Santee raises no issues under which he has a potential ground
for relief in this court. Santee argues that the district court
erred when it dismissed his suit without giving him the opportunity
to amend it to name the proper parties. Santee is correct, in that
he did not need permission from the district court to amend his
complaint inasmuch as he had not yet filed such a motion and no
responsive pleading had been filed. See Fed.R.Civ.P. 15(a);
McGruder v. Phelps, 608 F.2d 1023 (5th Cir.1979). However, the
district court's failure to consider the amendment was harmless
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because even under the amended complaint his petition was
frivolous. To the extent that Santee seeks to appeal the district
court's denial of habeas corpus relief, his appeal is wholly
without merit, and we deny his motion for a certificate of
appealability.
To the extent that Santee's appeal from the district court's
dismissal of his mandamus petition is properly before this court,
we find no meritorious ground of error. The district court's
dismissal pursuant to 28 U.S.C. § 1915 is affirmed for essentially
the reasons given by the district court. See Santee v. Quinlan,
No. 96-CV-3417 (E.D.La., Nov. 5 & 27, 1996)
CONCLUSION
Santee's IFP status is approved. Santee's motions for COA,
appointment of counsel, evidentiary hearing, and writ of error are
DENIED. The district court's order of dismissal is AFFIRMED.
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