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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. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  2. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  3. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  4. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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