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Judges deny prisoner’s request to appeal without paying fees

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The 7th Circuit Court of Appeals rejected a man’s argument that he and other prisoners do not need to pay appellate filing and docketing fees, and so a District Court’s certification of appeal is irrelevant.

In Kelly S. Thomas v. Dushan Zatecky, superintendent, Pendleton Correctional Facility, 13-1136, Kelly Thomas sought to appeal the denial of his petition for a writ of habeas corpus in the Southern District of Indiana. He filed the petition after the state court affirmed his murder conviction on appeal. Judge Sarah Evans Barker declined to issue a certificate of appealability and certified that the appeal had been taken in bad faith. Because of that, Thomas has to pay the $455 in appellate fees to appeal or convince the 7th Circuit that he should be allowed to proceed in forma pauperis.

Thomas believed, based on the Prison Litigation Reform Act of 1996, he doesn’t have to pay the appellate fees. But his argument rests on “the mistaken premise that the appellate fees have their genesis in the PLRA,” Chief Judge Frank Easterbrook wrote. “They do not. They are authorized by 28 U.S.C. Section 1913, which long predates the PLRA.”

The judges also pointed out the portions of Section 1915 and 1915A applicable exclusively to prisoners’ civil actions do not apply to collateral attacks on criminal judgments.

“When a district court grants permission under §1915(a)(1) to litigate in forma pauperis, that permission carries over to the appeal unless the district court itself revokes the permission after deciding the merits,” he wrote. “Section 1915(a)(3) says: ‘An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.’ We do not see any reason why that provision should not apply to collateral proceedings, in common with all of the other litigation to which §1915(a)(1) refers.”

They denied his request to file his appeal without paying the fee, but he is entitled to contest the propriety of Barker’s declaration that the appeal was taken in bad faith. He has 21 days to file in the 7th Circuit a motion for permission to proceed in forma pauperis and a certificate of appealability. Failure to meet this schedule will result in a dismissal.

 

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  1. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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