United States District Court, E.D. Wisconsin
ORDER GRANTING THE PETITIONER'S MOTION FOR LEAVE
TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
14, 2018, the court issued an order, informing the
petitioner/appellant that before it could determine whether
to grant the petitioner's motion to appeal without
prepaying the filing fee, the petitioner needed to file his
trust account statement covering the sixth-month period
preceding January 9, 2018. Dkt. No. 32. On May 18, 2018, the
petitioner filed his trust account statement with the court
of appeals, and on May 22, 2018, this court received the
statement. Dkt. No. 33. The court has reviewed that
statement, and finds that the petitioner has established that
he is indigent.
Standard for Allowing Appellant To Proceed Without Prepaying
the Appellate Filing Fee
the court has found the petitioner indigent, it also must
consider whether he filed his appeal in bad faith or whether
the petitioner has three strikes. See 28 U.S.C.
petitioner/appellant has not had three prior cases dismissed
because they were frivolous or did not state a claim. He has
not accrued three strikes.
Appeal Taken in Good Faith
district court should not apply an inappropriately high
standard when making a good faith determination. Pate v.
Stevens, 163 F.3d 437, 439 (7th Cir. 1998). An appeal
taken in “good faith” is one that seeks review of
any issue that is not frivolous, meaning that it involves
“legal points arguable on their merits.”
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983)
(quoting Anders v. California, 386 U.S. 738 (1967));
see also, Coppedge v. United States, 369
U.S. 438, 445 (1962)). Put another way, a litigant takes an
appeal in good faith if “a reasonable person could
suppose that the appeal has some merit.” Walker
v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000)). On
the other hand, an appeal taken in bad faith is one that is
based on a frivolous claim-that is, a claim that no
reasonable person could suppose has any merit. Lee v.
Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)).
end of the court's order dismissing the appellant's
habeas petition, the court declined to issue a
certificate of appealability, stating:
court concludes that its decision to deny the writ is neither
incorrect nor debatable among jurists of reason. The
petitioner received a full and fair opportunity to litigate
his Fourth and Fifth Amendment claims, and the Wisconsin
Supreme Court did not unreasonably apply federal law or
Supreme Court precedent.
Dkt. No. 22 at 16-17.
might conclude under these circumstances that the appellant
has not filed this appeal in good faith. But the good-faith
standard for allowing a party to appeal without prepaying the
filing fee is a lower standard that the standard that a
habeas petitioner must meet to obtain a certificate
of appealability. O'Brien, 626 F.3d at 631-32.
“[T]o determine that an appeal is in good faith, a
court need only find that a reasonable person could suppose
that the appeal has some merit.” Id. (citation
court cannot conclude that the petitioner/appellant will not
be able to point the appellate court to a single issue that a
reasonable person would not suppose had some merit. The court
concludes that the appellant filed this appeal in good faith.