United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 1998 Decided February 24, 1998
No. 96-3123
United States of America,
Appellee
v.
Lionel Ortiz, a/k/a Carlos,
a/k/a Leonel Carlos Ortiz,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 91cr00313-02)
Catherine E. Lhamon, argued the cause as amicus curiae
on the side of appellant. Steven H. Goldblatt, appointed by
the court, and Stacey Engelbrecht, student counsel, were on
the briefs.
Lionel Ortiz, pro se, was on the brief.
John R. Fisher, Assistant U.S. Attorney, argued the cause
for appellee, with whom Mary Lou Leary, U.S. Attorney at
the time the brief was filed, and James E. Boasberg, Assis-
tant U.S. Attorney, were on the brief. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Under the Antiterrorism and Ef-
fective Death Penalty Act of 1996 ("AEDPA"), a defendant
seeking to file a second motion under 28 U.S.C.A. s 2255 to
vacate, set aside, or correct a sentence must first obtain an
order from the appropriate court of appeals authorizing the
district court to consider the motion. See 28 U.S.C.A.
ss 2244(b)(3)(A), 2255 (West 1994 & Supp. 1997). Before
AEDPA was enacted, Lionel Ortiz filed his first motion under
s 2255, while the direct appeal of his criminal convictions was
pending, claiming ineffective assistance of trial counsel in
violation of his rights under the Sixth Amendment. The
district court denied that motion, and Ortiz did not appeal
this denial. After the court affirmed his convictions on direct
appeal, see United States v. Ortiz, 82 F.3d 1066, 1068 (D.C.
Cir. 1996), and after AEDPA took effect, he filed a motion for
authorization to file a second s 2255 motion in order to
pursue his claim that he was denied his right to the effective
assistance of former appellate counsel in his direct appeal.
Ortiz contends that applying AEDPA standards to his motion
would be impermissibly retroactive and, alternatively, that he
meets the AEDPA standards for filing a second motion. We
disagree with both contentions. Although Ortiz has shown
cause under pre-AEDPA standards for failing to raise his
claim of ineffective assistance of appellate counsel at the time
he filed his first s 2255 motion, he fails to show prejudice.
See McCleskey v. Zant, 499 U.S. 467, 494 (1991). Conse-
quently, having failed to show that he could prevail under
pre-AEDPA standards, he fails to show that applying
AEDPA standards to his second s 2255 motion would have an
improper retroactive effect. Because Ortiz also fails to meet
AEDPA standards for filing a second s 2255 motion, we deny
his motion for authorization. His further contention that he
should be allowed to seek relief under 28 U.S.C. s 2241 is not
properly before this court, and we do not address it, and his
constitutional challenges to AEDPA are foreclosed by Su-
preme Court precedent. Finally, we hold that the fee provi-
sions of the Prison Litigation Reform Act of 1995 do not
apply.
I.
Enacted on April 24, 1996, the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,
110 Stat. 1214, contains provisions changing both the stan-
dards and procedures required to pursue the remedy avail-
able under 28 U.S.C. s 2255 for federal prisoners seeking
relief from illegal confinement.1 Previously, when a defen-
dant wished to raise claims in a second or successive s 2255
motion and the government pleaded the defense of "abuse of
the writ," the defendant had to show both cause and preju-
dice: cause for failing to raise the claim earlier, that is, "some
objective factor external to the defense [that] impeded coun-
sel's efforts" to raise the claim earlier, and " 'actual prejudice'
resulting from the errors of which he complains." McCles-
key, 499 U.S. at 493-94 (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986), and United States v. Frady, 456 U.S. 152, 168
(1982)) (internal quotation marks omitted); accord United
States v. Kleinbart, 27 F.3d 586, 592-93 (D.C. Cir. 1994).
__________
1 Section 2255 provides in part:
A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sen-
tence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. s 2255 (1988).
Under AEDPA, a "prisoner" may file a second or successive
s 2255 motion only if the appropriate court of appeals first
certifies that the motion meets a new set of standards. See
18 U.S.C.A. ss 2244(b)(3)(A), 2255. Thus, the "prisoner"
must show that there is either:
(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 rea-
sonable 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.
28 U.S.C.A. s 2255.
Ortiz filed a timely appeal from his convictions of conspira-
cy to distribute cocaine base,2 distribution of cocaine base,3
possession with intent to distribute cocaine base,4 and at-
tempted distribution of cocaine base.5 See Ortiz, 82 F.3d at
1068-69. During the pendency of this appeal, he filed his
first s 2255 motion to set aside or correct his sentence on the
grounds of ineffective assistance of trial counsel. See id. at
1069 n.7. In his motion, he asserted that trial counsel had
been incompetent in five ways: (1) by not pursuing introduc-
tion of the testimony of a potential defense witness (Andrea
Balbuena) under the exception to the hearsay rule for admis-
sions against penal interest, see Fed. R. Evid. 804(b)(3); (2) by
not limiting cross-examination of Ortiz's co-defendants when
they testified in the government's rebuttal case and thus
opening the door to further damaging testimony; (3) by
improperly advising him not to testify and informing the
district court, without his consent, that he would not; (4) by
failing to provide him with an interpreter so that he could
__________
2 See 21 U.S.C. s 846 (1988).
3 See id. s 841(a) & (b)(1)(A)(iii).
4 See id.
5 See id. s 846.
communicate with his counsel; and (5) by failing to object to
the manner in which a witness was escorted out of the court
room. On May 2, 1995, the district court denied the motion
without a hearing, finding that, given the "extensive evidence
against him," Ortiz would still have been found guilty even
had Balbuena's testimony been admitted at trial, had the
government's redirect examination of the co-defendants dur-
ing its rebuttal case not elicited damaging testimony, and had
the other alleged errors not occurred. Ortiz did not appeal
from the denial of the motion.
Fourteen months later, on April 24, 1996, Congress enacted
AEDPA. Six days thereafter, on April 30, 1996, the court
affirmed Ortiz's convictions; the court did not reach his
ineffective assistance of trial counsel claim because he had
waived it by not appealing the denial of his first s 2255
motion. See Ortiz, 82 F.3d at 1068, 1069 n.7. On September
25, 1996, Ortiz filed the instant motion seeking authorization
from this court to file a second s 2255 motion in the district
court.6 Ortiz and amicus 7 contend that both trial and appel-
late counsel were incompetent in his criminal trial and that
because application of AEDPA standards to his case would be
impermissibly retroactive, he should be given leave to file a
second s 2255 motion under the pre-AEDPA McCleskey stan-
dards. Alternatively, amicus contends that Ortiz satisfies
AEDPA's standards for a second s 2255 motion because of
newly discovered exculpatory evidence. Amicus further con-
tends that if the court declines to certify Ortiz's second
s 2255 motion to the district court, he should be allowed to
make a collateral attack on his sentence under 28 U.S.C.
__________
6 After the Supreme Court granted certiorari in Lindh v.
Murphy, this court held the instant appeal in abeyance until that
decision was released on June 23, 1997. See Lindh v. Murphy, 117
S. Ct. 2059 (1997).
7 The court appointed as amicus counsel, to present arguments
in support of Ortiz, Steven H. Goldblatt of the Georgetown Univer-
sity Law Center Appellate Litigation Program. See United States
v. Ortiz, No. 96-8030 (D.C. Cir. Oct. 30, 1996) (order appointing
amicus counsel). The court expresses its appreciation to amicus
counsel, who did an excellent job in arguing a difficult case.
s 2241. Ortiz further challenges the constitutionality of
AEDPA on the grounds that it violates his right to due
process by limiting the writ of habeas corpus and violates the
Ex Post Facto Clause of the Constitution.8 The government
responds that: applying AEDPA is not unconstitutionally
retroactive because Ortiz filed his second motion after the
statute took effect; his petition fails to satisfy either criterion
for a successive petition under AEDPA; his s 2241 conten-
tions are not properly before the court; and his constitutional
arguments are foreclosed by Supreme Court precedent.
We turn first to the retroactivity claim, and upon finding it
unpersuasive, we apply AEDPA to Ortiz's motion and then
briefly address his remaining contentions.
II.
In general, "congressional enactments ... will not be con-
strued to have retroactive effect unless their language re-
quires this result." Landgraf v. USI Film Prods., 511 U.S.
244, 272 (1994) (quoting Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988)) (internal quotation marks omitted).
In many situations, however, courts can apply statutes enact-
ed after the events that form the basis of the litigation
without violating retroactivity rules, including when the new
enactment authorizes prospective relief, alters jurisdictional
rules, or alters procedural rules. See id. at 273-75. But
these exceptions are not bright line rules, see id. at 275 n.29,
and a court must determine, where Congress has not express-
ly prescribed a statute's proper reach, whether the statute
would "impair rights a party possessed when he acted, in-
crease a party's liability for past conduct, or impose new
duties with respect to transactions already completed," id. at
__________
8 In his motion for leave to file a second s 2255 motion, Ortiz
also challenged the constitutionality of the crack-cocaine drug stat-
ute and the government's authority to prosecute him for a drug that
is not fully on the controlled drug schedule, but he abandoned these
arguments after the court ordered rebriefing in light of Lindh v.
Murphy, 117 S. Ct. 2059 (1997). See United States v. Ortiz, No.
96-3123 (D.C. Cir. Sept. 10, 1997).
280. The analysis must be case-specific, for "if the applica-
tion of a term [of a statute] would be retroactive as to [the
particular defendant], the term will not be applied." Lindh v.
Murphy, 117 S. Ct. 2059, 2063 (1997).
Congress did not expressly indicate whether the AEDPA
amendments to the procedures and standards for filing sec-
ond s 2255 motions are to be applied in cases where the first
s 2255 motion was filed before the enactment of AEDPA.
See id. at 2063-64; In re Hanserd, 123 F.3d 922, 924 (6th Cir.
1997); Burris v. Parke, 95 F.3d 465, 468 (7th Cir. 1996) (en
banc). Whether the amendments would be impermissibly
retroactive in such cases is a question of first impression for
this court, and other circuits have developed different ap-
proaches. Only the Sixth Circuit adopts the approach that
amicus advocates, under which a prisoner who filed a s 2255
motion before the enactment of AEDPA would be allowed to
file a successive motion under the "abuse of the writ" cause-
and-prejudice standard of McCleskey. See Hanserd, 123
F.3d at 933-34. Taking a different tack from the Sixth
Circuit, the Seventh and Eleventh Circuits require a showing
of detrimental reliance, namely, that the defendant would not
have filed the first s 2255 motion had he foreseen the tight-
ening of the standards under AEDPA for filing a second
s 2255 motion. See Alexander v. United States, 121 F.3d
312, 314 (7th Cir. 1997); In re Magwood, 113 F.3d 1544,
1552-53 (11th Cir. 1997); In re Medina, 109 F.3d 1556, 1562
(11th Cir. 1997); Burris, 95 F.3d at 468-69; cf. Pratt v.
United States, 129 F.3d 54, 58-59 (1st Cir. 1997) (discussing
detrimental reliance but denying motion on other grounds).
Still other circuits, in considering application of the new
s 2255 rules to defendants whose first s 2255 motions were
filed before AEDPA's enactment, have either declined to
discuss retroactivity, see Galtieri v. United States, 128 F.3d
33, 37-38 (2d Cir. 1997); Triestman v. United States, 124
F.3d 361, 370 n.11 (2d Cir. 1997); In re Dorsainvil, 119 F.3d
245, 247 n.1 (3d Cir. 1997); In re Vial, 115 F.3d 1192, 1198
n.13 (4th Cir. 1997), or have assumed that the new rules could
not, by definition, be retroactive when applied to motions filed
after AEDPA's enactment, see Hatch v. Oklahoma, 92 F.3d
1012, 1014 (10th Cir. 1996).
While taking different tacks, what the circuits share in
their approaches is the requirement dictated by the Supreme
Court that the new enactment be retroactive as applied to the
particular claim before the court. See Lindh, 117 S. Ct. at
2063. Thus, the new standards and procedures under
AEDPA for filing s 2255 motions could only be improperly
retroactive as applied to Ortiz if he would have met the
former cause-and-prejudice standard under McCleskey and
previously would have been allowed to file a second s 2255
motion, but could not file a second motion under AEDPA.
Although we agree with the parties that Ortiz can show cause,
we conclude that he cannot show prejudice and, consequently,
that he cannot demonstrate that applying the new AEDPA
standards to his claims would be impermissibly retroactive.
At the time Ortiz filed his first s 2255 motion, this court
encouraged defendants to file such motions when necessary to
make records in the district court for use in support of
appeals based on ineffectiveness of trial counsel claims. In
United States v. Cyrus, 890 F.2d 1245 (D.C. Cir. 1989), for
example, the court stated that, because "equity and judicial
economy require that a criminal defendant build an evidentia-
ry record on his ineffective-assistance claims before appealing
his conviction on this basis," the defendant must raise such
claims in a motion for a new trial, s 2255 motion, or other
collateral attack or face a remand by the court of appeals for
an evidentiary hearing, unless an evidentiary hearing has
already been held. Id. at 1247; see United States v. Fennell,
53 F.3d 1296, 1303-04 (D.C. Cir. 1995). Where a defendant
filed such a motion while a direct appeal was pending, the
court generally stayed the appeal until the record was com-
pleted in the district court.9 See Cyrus, 890 F.2d at 1247.
Second s 2255 motions were then subject to the McCleskey
standards. See, e.g., Kleinbart, 27 F.3d at 592-93. The crux
__________
9 The court no longer holds direct appeals in abeyance pending
resolution of postconviction proceedings in the district court absent
extraordinary circumstances. See D.C. Cir. R. 47.5.
of Ortiz's second s 2255 motion, were we to certify it, is that
his allegedly ineffective appellate counsel forfeited his claim
of ineffective assistance of trial counsel by failing to appeal
the denial of his first s 2255 motion and otherwise represent-
ed him incompetently on direct appeal. Because appellate
counsel's alleged errors had not yet occurred at the time
Ortiz filed his first s 2255 motion, a claim of ineffective
assistance of appellate counsel was unavailable to him at that
time and, thus, Ortiz has shown cause for his failure to raise
the claim earlier.10
Ortiz fails, however, to demonstrate prejudice from his
inability to raise his ineffectiveness of appellate counsel
claims because he has not stated a viable claim of ineffective
assistance of appellate counsel. To demonstrate ineffective
assistance of counsel, Ortiz must show that the performance
of his counsel was deficient and that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strick-
land v. Washington, 466 U.S. 668, 687, 694 (1984). Assuming
counsel was deficient, Ortiz has not demonstrated that there
is a reasonable probability that the result of his trial would
have been different but for appellate counsel's errors. Had
appellate counsel appealed the denial of the first s 2255
motion, or otherwise properly raised the claim of ineffective
assistance of trial counsel on direct appeal, this court's review
could not have resulted in relief for Ortiz.
The evidence at trial of Ortiz's complicity was devastating.
An undercover Drug Enforcement Agency ("DEA") agent
met with Ortiz (introduced to the agent as "Carlos") on four
different days and arranged narcotics sales with him on three
of those occasions. See Ortiz, 82 F.3d at 1068-69. On the
__________
10 For purposes of this appeal, the court assumes that Ortiz
relied on pre-AEDPA law in filing his first s 2255 motion. The
government appears to concede that Ortiz thought when he filed his
first motion that he would be able to file a second motion under the
McCleskey standard, and not under the more stringent gatekeeper
provision in the AEDPA, which was enacted subsequent to his first
motion.
fourth day, when the agent signaled for the arrest of "Car-
los," Ortiz was arrested carrying 125 grams of crack. See id.
at 1069. All of the meetings were observed and photo-
graphed, and the undercover agent and the surveillance
agents identified Ortiz as "Carlos." See id. In response,
Ortiz presented, weakly, the defense of misidentification,
based on challenges to taped telephone conversations and a
handwriting exemplar 11 and on employment records showing
that he was working on the dates of the drug transactions.
See id. To corroborate this defense, Ortiz's trial counsel
attempted to call as a witness Andrea Balbuena,12 but she
refused to testify without full immunity, which the govern-
ment declined to give and the district court declined to
order.13 While Balbuena's testimony might have damaged
the credibility of one of the government's rebuttal witnesses,
it would not have affected the evidentiary force of the DEA
agents' testimony, the photographs, or Ortiz's arrest while
carrying drugs that he had arranged to sell to a DEA agent.
Similarly, even if the damaging redirect examination of the
__________
11 A foreign language interpreter testified that Ortiz probably
was not the person whose voice was recorded on the telephone
tapes because Ortiz's English was not good enough. A forensic
document examiner testified that Ortiz's writing samples did not
match "Carlos's" writing style.
12 Balbuena had indicated that, during the relevant period, she
was the girlfriend of one of Ortiz's co-defendants, Hilario Sanchez-
Reyes and was prepared to testify that she had introduced Ortiz to
Sanchez-Reyes, that they did not know each other well, that she
had spoken with "Carlos" by telephone and knew that Ortiz was not
"Carlos" and was not involved in Sanchez-Reyes's drug activities,
and that Sanchez-Reyes had told her he would lie in testimony
against Ortiz in order to help himself.
13 Trial counsel abandoned any further effort to place Balbue-
na's testimony before the jury. Amicus contends that trial counsel
should have challenged her blanket assertion of privilege and asked
the court to order her to testify as to matters that would not
implicate her Fifth Amendment rights. See United States v.
Thornton, 733 F.2d 121, 125-26 (D.C. Cir. 1984); United States v.
Reese, 561 F.2d 894, 900 (D.C. Cir. 1977).
co-defendants had not occurred, Ortiz had been allowed to
testify, and trial counsel had not done the other things of
which Ortiz now complains, there is virtually no likelihood
that the outcome of the trial would have been different. It
follows that there can be no prejudice from appellate coun-
sel's failure to appeal the denial of the first s 2255 motion
alleging ineffective assistance of trial counsel.14
Accordingly, because Ortiz could not have made out a
viable claim of ineffective assistance of appellate counsel
under Strickland, and the denial of his second s 2255 motion
would, therefore, not prejudice him, Ortiz fails to meet the
requirements of the former "abuse of the writ" standard of
McCleskey, and the new AEDPA standards cannot be im-
properly retroactive as applied to him.
III.
Ortiz contends in the alternative that he can satisfy the new
AEDPA standards for filing a second s 2255 motion, but this
too is unpersuasive. Ortiz does not contend that a new,
retroactive rule of constitutional law governs his case, see 28
U.S.C.A. s 2255, but rather that, because it has never been
heard and evaluated by a factfinder, Balbuena's testimony is
"newly discovered evidence that, viewed in light of the evi-
dence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have
__________
14 Ortiz's second s 2255 motion is based on the argument that
absent appellate counsel error, trial counsel's alleged errors would
have been examined by this court. Ortiz also contends that, absent
appellate counsel's error, this court would have considered his claim
that the district court abused its discretion in not holding an
evidentiary hearing on his first s 2255 motion. When a s 2255
motion involves ineffective assistance of counsel claims, a hearing is
unnecessary if the alleged deficiencies of counsel did not prejudice
the defendant. See United States v. Sayan, 968 F.2d 55, 66 (D.C.
Cir. 1992) (citing United States v. Patterson, 652 F.2d 1046, 1048
(D.C. Cir. 1981)). Hence, because Ortiz cannot show prejudice as a
result of his trial counsel's conduct, appellate counsel's failure to
appeal the denial of the first s 2255 motion did not prejudice Ortiz.
found" Ortiz guilty. 28 U.S.C.A. s 2255. The traditional
definition of newly discovered evidence is evidence "discover-
ed since the trial," at least with respect to motions for a new
trial, United States v. Lafayette, 983 F.2d 1102, 1105 (D.C.
Cir. 1993) (quoting Thompson v. United States, 188 F.2d 652,
653 (D.C. Cir. 1951)) (internal quotation marks omitted), and
Balbuena's evidence was known to Ortiz at the time of trial.
Ortiz cites no authority for his newly minted definition of
"newly discovered" evidence, much less for the proposition
that a different definition of "newly discovered" evidence
applies under AEDPA. But, regardless of whether Balbue-
na's testimony is considered "newly discovered" evidence,
there is no basis to conclude that this court would have
concluded that her testimony would have had any significant
impact on the outcome of the trial given the nature of the
government's other evidence. Hence, the "newly discovered"
evidence would not "establish by clear and convincing evi-
dence that no reasonable factfinder would have found" Ortiz
guilty. 28 U.S.C.A. s 2255. Because he meets neither
AEDPA standard for filing a second s 2255 motion, we deny
Ortiz's motion for leave to file such motion.
IV.
Ortiz's other contentions merit only brief discussion.
First, Ortiz contends that if he is denied leave to file a
second s 2255 motion, he should be permitted to raise his
ineffective assistance of appellate counsel claim through a
petition for a writ of habeas corpus under 28 U.S.C. s 2241.
Section 2255 provides that when the s 2255 remedy is "inade-
quate or ineffective to test the legality of [the defendant's]
detention," the defendant may seek relief under s 2241. 28
U.S.C. s 2255. Ortiz maintains that if he cannot file a second
s 2255 motion, he will be unable to test his claim of ineffec-
tive assistance of appellate counsel, and thus the s 2255
motion is "inadequate or ineffective." Because there is no
petition under s 2241 before us, we decline to address this
contention. See Fed. R. App. P. 22(a); D.C. Cir. R. 22, 47.2;
cf. United States v. Lorentsen, 106 F.3d 278, 279 (9th Cir.
1997).
Second, Ortiz challenges the constitutionality of AEDPA on
two grounds. He contends that, in enacting AEDPA, Con-
gress violated his right to due process and the Suspension
Clause of the Constitution 15 by limiting the writ of habeas
corpus through the AEDPA amendments to the procedures
for filing second motions under 28 U.S.C. s 2255.16 To the
contrary, in Felker v. Turpin, 116 S. Ct. 2333 (1996), the
Supreme Court held that the new procedures and new stan-
dards for second motions created by the AEDPA are a
constitutionally permissible restraint on "abuse of the writ."
See id. at 2339-40. Ortiz also contends that AEDPA violates
the Ex Post Facto Clause 17 by retroactively altering the
standards of proof in place at the time of his crimes and by
curtailing the writ of habeas corpus. In Collins v. Young-
blood, 497 U.S. 37 (1990), however, the Supreme Court made
clear that the Ex Post Facto Clause is concerned with
retroactive changes to the definition of crimes, defenses, or
punishments, and is not violated if a statute "does not punish
as a crime an act previously committed, which was innocent
when done; nor make more burdensome the punishment for a
crime, after its commission; nor deprive one charged with
__________
15 "The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it." U.S. Const. art. I, s 9, cl. 2.
16 Ortiz also raises various non-constitutional arguments as to
the inability of Congress to limit the writ of habeas corpus in
general and in particular by linking it to the remedy available under
s 2255. The Supreme Court's discussion of the historic expansion
of the writ, coupled with its acceptance of AEDPA's amendments,
refute Ortiz's contentions. See Felker v. Turpin, 116 S. Ct. 2333,
2340 (1996); see also Lindh v. Murphy, 96 F.3d 856, 868-69 (7th
Cir. 1996) (en banc), rev'd on other grounds, 117 S. Ct. 2059 (1997).
Further, the Supreme Court has made clear that, for finality's sake,
Congress may treat first habeas petitions differently than succes-
sive ones. See Lonchar v. Thomas, 116 S. Ct. 1293, 1299 (1996).
17 "No Bill of Attainder of ex post facto Law shall be passed."
U.S. Const. art. I, s 9, cl. 3.
crime of any defense available according to law at the time
when the act was committed." Id. at 51-52. Ortiz makes no
plausible claim that AEDPA implicates any of these changes.
Further, the constitutional prohibition on ex post facto laws
applies only to statutes that disadvantage the offender affect-
ed by them. See id. at 41. Because Ortiz does not satisfy
the standards for successive s 2255 motions in place prior to
the enactment of AEDPA, applying AEDPA to his motion
cannot make him any worse off than he was prior to its
enactment.
V.
Finally, we agree with the parties that the fee provisions of
the Prison Litigation Reform Act ("PLRA"), Title VIII of the
Omnibus Consolidated Rescissions and Appropriations Act of
1996, Pub.L. No. 104-134, 110 Stat. 1321, do not apply.
Under 28 U.S.C. s 1915(b), as amended by the PLRA, a
prisoner proceeding in forma pauperis who files a "civil
action" must pay all filing fees. 28 U.S.C.A. s 1915(b) (West
Supp. 1997). Although the statute does not define the term
"civil action," every circuit to reach the issue has concluded
that the filing fee provisions do not apply to habeas corpus
petitions.18 The government joins amicus in observing that,
while a s 2255 motion is in some ways, like a petition under
s 2254, a civil action, a motion to the court of appeals seeking
leave to file a successive s 2255 motion does not constitute a
"civil action" within the meaning of PLRA. See United
States v. Levi, 111 F.3d 995, 996 (D.C. Cir. 1997).
Congress enacted the PLRA to limit frivolous prisoner civil
rights and prison condition cases, not habeas corpus or
__________
18 See Smith v. Angelone, 111 F.3d 1126, 1129-31 (4th Cir.),
cert. denied, 118 S. Ct. 2 (1997); Anderson v. Singletary, 111 F.3d
801, 803-06 (11th Cir. 1997); United States v. Simmonds, 111 F.3d
737, 741-44 (10th Cir. 1997); Naddi v. Hill, 106 F.3d 275, 277 (9th
Cir. 1997); United States v. Cole, 101 F.3d 1076, 1077 (5th Cir.
1996); Santana v. United States, 98 F.3d 752, 754-56 (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).
s 2255 actions based on claims such as those in Ortiz's instant
motion. See, e.g., 141 Cong. Rec. S7524-25 (daily ed. May 25,
1995) (statement of Sen. Dole). That Congress enacted
AEDPA just two days prior to enacting the PLRA suggests
that its intended amendments to habeas corpus law, including
the s 2255 remedy, were contained in AEDPA, rather than in
the PLRA. See Smith v. Angelone, 111 F.3d 1126, 1130-31
(4th Cir.), cert. denied, 118 S. Ct. 2 (1997); Naddi v. Hill, 106
F.3d 275, 277 (9th Cir. 1997). For these reasons, articulated
by our sister circuits, we hold that the in forma pauperis
filing fee provisions of the PLRA do not apply to proceedings
under s 2255.
Accordingly, we deny Ortiz's motion for authorization to file
a second s 2255 motion, we do not reach his s 2241 conten-
tion, we reject his constitutional challenges to AEDPA, and
we hold that the fee provisions of PLRA are inapplicable.