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Subdiaz-Osorio v. Clements

United States District Court, E.D. Wisconsin

June 8, 2018

NICOLAS SUBDIAZ-OSORIO, Petitioner/Appellant
v.
MARC CLEMENTS, Respondent/Appellee.

          ORDER GRANTING THE PETITIONER'S MOTION FOR LEAVE TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 31)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On May 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.

         I. Standard for Allowing Appellant To Proceed Without Prepaying the Appellate Filing Fee

         While 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. §§1915(a)(2)-(3), (g).

         A. Three Strikes

         The 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.

         B. Appeal Taken in Good Faith

         A 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)).

         At the end of the court's order dismissing the appellant's habeas petition, the court declined to issue a certificate of appealability, stating:

         The 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.

         One 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 omitted).

         The 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.

         II. ...


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