Marquez v. United States of America
Filing
15
ORDER AND OPINION Entered by Judge Joe Billy McDade on 8/7/2013. IT IS THEREFORE ORDERED that the Petitioner's Motion to Proceed on Appeal in forma pauperis 13 is granted. Petitioner is assessed a partial filing fee of $8.88. (cc: Petitioner) (KB, ilcd)
E-FILED
Wednesday, 07 August, 2013 05:36:32 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
ROBERTO LUIS MARQUEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 13-cv-4020
ORDER & OPINION
This matter is before the Court on Petitioner’s Motion for Leave to Appeal in
forma pauperis. (Doc. 13). On June 6, 2013, the Court dismissed Petitioner’s 28
U.S.C. § 2255 Motion as untimely, and declined to issue a Certificate of
Appealability.1 (Doc. 7).
In the documents supporting his Motion for Leave to Appeal in forma
pauperis, Petitioner indicates that he receives a monthly income of $45-50, and that
he has no other sources of income.2 (Doc. 13 at 5). As of July 30, 2013, Petitioner
had a balance of $12.27 in his trust fund account, and his average balance for the
Though the Court denied Petitioner’s Certificate of Appealability, it does not
find that Petitioner brings his appeal in bad faith. “[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.” Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000) (citing
Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)). The fact that the Court denied
Petitioner’s request for a Certificate of Appealability does not necessarily indicate
that the appeal is not taken in good faith, as the standard for a Certificate is higher.
See Walker, 216 F.3d at 631-32.
1
The form Petitioner completed states that he has no income or property, but
this is belied both by Petitioner’s later statement that he earns $45-50/month, and
by the trust fund account statement from his institution, which shows monthly
payroll deposits within that range. (Doc. 13).
2
previous six months was $25.19. (Doc. 13 at 6-7). Petitioner had received deposits
totaling $266.29 over the past six months, which works out to an average monthly
deposit total of $44.38. (Doc. 13 at 8).
The Court finds that Petitioner is unable to pay the full $455 appellate filing
fee, and thus grants his Motion to Proceed on Appeal in forma pauperis. The Court
also finds, in its discretion, that Petitioner is able to pay a portion of the filing fee,
and adopts the formula for calculating a partial payment found in 28 U.S.C. §
1915(b). Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir. 1999) (approving
district court’s discretionary use of § 1915(b) partial payment calculation in § 2255
cases). This formula provides that a petitioner must pay 20% of either his average
balance or average monthly deposits, whichever is greater. The greater of these two
figures is $44.38, which is his average monthly deposit, and so 20% of that, $8.88, is
the partial filing fee the Court will assess.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Proceed on
Appeal in forma pauperis (Doc. 13) is GRANTED. Petitioner is ASSESSED a partial
filing fee of $8.88.
Entered this 7th day of August, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
2
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