United States District Court, E.D. Wisconsin
AMENDED ORDER GRANTING THE PETITIONER’S MOTION
FOR LEAVE TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE
(DKT. NO. 38)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Standard For Allowing Appellant To Proceed Without Prepaying
the Appellate Filing Fee
determining whether a litigant is eligible to proceed on
appeal without prepaying the filing fee, the court must first
determine whether he is indigent, then determine whether he
has taken the appeal in good faith for purposes of Fed. R.
Prison Litigation Reform Act does not apply to
habeas cases. Walker v. O’Brien, 216
F.3d 626, 634 (7th Cir. 2000) (“We therefore hold that
if a case is properly filed as an action under 28 U.S.C.
§§2241, 2254, or 2255, it is not a “civil
action” to which the PLRA applies.”). The court
decides whether a petitioner is indigent by relying solely on
the information the petitioner provides in his affidavit of
indigence. See Martin v. United States, 96 F.3d 853,
855-56 (7th Cir. 1996); see also United States v.
McNair, No.1:02-CR-12, 2008 WL 4776561, at *2 (N.D. Ind.
Oct. 27, 2008) (“[U]nder Martin, there is no
need for a prisoner to submit a prisoner trust account
statement to proceed IFP in a habeas corpus or section 2255
petitioner’s affidavit indicates that he has no income,
no bank accounts and no expenses of any kind. Dkt. No. 38 at
2-7. He indicated that he is unemployed, that he has lost
nearly all of his family members, and that he recently had a
heart attack (and died) and that his health doesn’t
allow him to work. Id. at 7. Based on this
information, the court finds that the petitioner is indigent.
prior order dated May 14, 2018, the court erroneously applied
the PLRA standard to the petitioner’s case, and
required the petitioner to file his certified trust account
statement. See Dkt. No. 39. The petitioner complied
with that order, and filed his trust account statement. Dkt.
No. 40. The court then issued another erroneous order, dated
June 8, 2018, requiring the petitioner to pay an initial
partial filing fee of $20.71. Dkt. No. 41.
court has vacated those two orders, see Text-Only
Order of June 11, 2018, because the PLRA does not apply to
properly filed habeas petitions. The court
apologizes to the petitioner for this error, and advises him
that he does not need to pay an initial partial filing fee.
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.
end of the court’s order dismissing the
appellant’s habeas petition, it declined to
issue a certificate of appealability. The court found:
Here, the court declines to issue a certificate of
appealability because the petitioner has not made a
substantial showing that the grounds in his petition are
timely; has not made a substantial showing that the court
should equitable toll the statute of limitations; and has not
made a substantial showing of his actual innocence. In a case
challenging a thirty-nine-year-old conviction that has been
considered multiple times by each level of the state courts,
the court finds that reasonable jurists would not debate that
the petition should have been resolved in a different manner.
Dkt. No. 26 at 46.
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