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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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