In Re Howard Phillips, Page True, Warden United States Bd. of Parole, Real Parties in Interest, 133 F.3d 770 (10th Cir. 1998). · Go Syfert
In Re Howard Phillips, Page True, Warden United States Bd. of Parole, Real Parties in Interest, 133 F.3d 770 (10th Cir. 1998). Cases Citing This Book View Copy Cite
9 citation events (5 in the last 25 years) across 3 distinct courts.
Strongest positive: York v. Terrell (ca10, 2009-07-27)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) York v. Terrell
10th Cir. · 2009 · signal: cf. · confidence medium
Cf. In re Phillips, 133 F.3d 770, 771 (10th Cir.1998) (noting filing fees not required for habeas matters and holding “this circuit will no longer require mandatory fees under the PLRA for filing petitions for writs of mandamus seeking to compel district courts to hear and decide actions brought solely under 28 U.S.C. §§ 2241 , 2254, 2255”).
discussed Cited as authority (rule) Risdal v. Iowa
S.D. Iowa · 2003 · confidence medium
See Malave v. Hedrick, 271 F.3d 1139, 1140 (8th Cir.2001) (per curiam)(unpublished), cert. denied — U.S. -, 123 S.Ct. 186 , 154 L.Ed.2d 74 (2002) (“Focusing on the unique nature of habeas corpus and on Congress’s intent when it enacted the PLRA, we now join our sister circuits in holding that the PLRA’s filing-fee provisions are inapplicable to habeas corpus actions.”); see also Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2nd Cir.2001)(same); Walker v. *974 O’Brien, 216 F.3d 626, 633-34 , (7th Cir.) cert. denied in Hanks v. Finfrock, 531 U.S. 1029 , 121 S.Ct. 606…
discussed Cited "see" Buhl v. Berkebile
10th Cir. · 2014 · signal: see · confidence high
And he contends that he should not have been required to submit his pleadings on a form for prisoner complaints rather than a habeas form because we have acknowledged “that § 2241 proceedings, and appeals of those proceedings, are not ‘civil actions’ for purposes of 28 U.S.C. §§ 1915 (a)(2) and (b).” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997); see In re Phillips, 133 F.3d 770, 771 (10th Cir.1998).
cited Cited "see" Couse v. Flowers
10th Cir. · 1998 · signal: see · confidence high
See In Re Phillips, 133 F.3d 770, 771 (10th Cir. 1998); McIntosh v. United States Parole Comm., 115 F.3d 809, 811-12 (10th Cir. 1997).
cited Cited "see" Edwin W. Couse v. Arnett M. Flowers
10th Cir. · 1998 · signal: see · confidence high
See In Re Phillips, 133 F.3d 770, 771 (10th Cir.1998); McIntosh v. United States Parole Comm., 115 F.3d 809, 811-12 (10th Cir.1997).
discussed Cited "see" Gee v. Shillinger
10th Cir. · 1998 · signal: see · confidence high
See In re Phillips, No. 97-646, 1998 WL 3362, at *1 (10th Cir. Jan. 6, 1998) (holding § 1915 filing fees do not apply to “petitions for writs of mandamus seeking to compel district courts to hear and decide actions brought solely under 28 U.S.C. §§ 2241 , 2254 and 2255").
discussed Cited "see" Donald Gee v. Duane Shillinger, Warden of the Wyoming State Penitentiary James Ferguson, Donald Gee v. Wyoming Department of Corrections State Penitentiary Maximum Security Unit Manager, in His Official Capacity, AKA Ronald G. Ruettgers, Individually, and Wyoming Department of Corrections State Penitentiary Security Manager, in His Official Capacity AKA Captain Stan James, Individually
10th Cir. · 1998 · signal: see · confidence high
See In re Phillips, No. 97-646, 1998 WL 3362, at * 1 (10th Cir. Jan. 6, 1998) (holding § 1915 filing fees do not apply to "petitions for writs of mandamus seeking to compel district courts to hear and decide actions brought solely under 28 U.S.C. §§ 2241 , 2254 and 2255").
discussed Cited "see, e.g." Simmons v. Zavaras
10th Cir. · 2009 · signal: see also · confidence low
United States v. Simmonds, 111 F.3d 737, 743 (10th Cir.1997), overruled on other grounds by United States v. Hurst, 322 F.3d 1256 , 1261 n. 4 (10th Cir.2003); see also In re Phillips, 133 F.3d 770 (10th Cir.1998) (extending Simmonds to mandamus proceedings related to habeas corpus).
Retrieving the full opinion text from the archive…
In Re Howard PHILLIPS, Petitioner. Page True, Warden; United States Board of Parole, Real Parties in Interest
97-646.
Court of Appeals for the Tenth Circuit.
Jan 6, 1998.
133 F.3d 770
1998 U.S. App. LEXIS 69
1998 WL 3362
Anderson, Baldock, Henry.
Cited by 9 opinions  |  Published

ORDER

This is an original proceeding in the nature of mandamus. Petitioner seeks: 1) leave to proceed in this court without prepayment of costs or fees and 2) an order compelling the district court to hear and decide his pending petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2241, case No. 95-CV-3465.

I.

We consider first the application for leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), prisoners proceeding in forma pau-peris who bring a “civil action” or appeal a judgment from a civil action must pay all filing fees. United States v. Simmonds, 111 F.3d 737, 741 (10th Cir.1997). We decided in Simmonds, id. at 744, consistent with other circuits that have addressed the issue, that “neither habeas corpus or 28 U.S.C. § 2255 proceedings, nor appeals of those proceedings are ‘civil actions’ for purposes of 28 U.S.C. § 1915.” Shortly thereafter, we added to the category of proceedings not covered[*771] by the PLRA mandatory fee requirements those petitions for writs of habeas corpus brought under 28 U.S.C. § 2241. McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (§ 2241 proceedings and appeals of those proceedings not “civil actions” for purposes of 28 U.S.C. § 1915(a)(2) and (b)).

Upon further consideration of the matter, we now conclude that this circuit will no longer require mandatory fees under the PLRA for filing petitions for writs of mandamus seeking to compel district courts to hear and decide actions brought solely under 28 U.S.C. §§ 2241, 2254 and 2255. To the limited extent that any of our earlier cases could be interpreted to the contrary, they are overruled. [1]

We have examined the motion for leave to proceed in forma pauperis under the appropriate standards, see McIntosh, 115 F.3d at 812-13, and conclude petitioner has met the requisite criteria. Accordingly, the motion for leave to proceed in forma pauperis is granted.

II.

Moving to the merits of the mandamus petition, we note that the district court’s docket sheet reflects the underlying habeas corpus petition was filed in November of 1995. It further appears that the cause has been pending, at issue, since the filing of the government’s answer in April of 1996. We have previously held that without more, this is too long for a habeas corpus petition to remain unresolved.

Accordingly, the real parties in interest, other than petitioner, are directed to respond to the petition. The district court judge to whom the ease is assigned may also respond, if he is so inclined. The responses shall be filed within twenty days of the date of this order.

1

. We have circulated this opinion to the en banc court, which has concurred with this ruling.