USA v. Bailey

Filing 48

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 11/13/2012. Mailed notice(vcf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD BAILEY,
Defendant.

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No.

97 C 7665
94 CR 481

MEMORANDUM ORDER
This Court has received from the Clerk’s Office a copy of
the Application and Motion for Permission to Appeal In Forma
Pauperis (“Application”) filed by Richard Bailey in connection
with his appeal from this Court’s August 14, 2012 memorandum
opinion and order, which dismissed as untimely his most recent
effort to upset this Court’s November 26, 1997 dismissal of his
28 U.S.C. §2255 motion.

Although this Court has previously

issued an October 18, 2012 Statement as to Certificate of
Appealability (“Statement”) explaining this Court’s reasoning as
to why no COA should issue in conjunction with the current
appeal, Bailey’s Application still calls for this Court to
calculate the filing fee obligations imposed on Bailey under 28
U.S.C. §1915 (“Section 1915”).
Even though both Section 1915(a)(2) and the Application form
itself expressly call for Bailey to submit a certified copy of
the trust fund account statement at his custodial institution
covering the six-month period preceding the filing of his notice

of appeal, what Bailey has tendered covers a time frame of
something less than five months.

Instead of forcing Bailey to

return to the institution to cover the entire period, this Court
has used the printout to calculate the average monthly deposits
for the somewhat shorter period, and that calculation has
produced an average figure of $108.75.

Under Section 1915(b)(1)

that would require an initial partial filing fee of 20% of that
amount or $21.75, after which future installments would have to
be paid until the entire $455 in appellate filing fees had been
satisfied.
But in this Court’s view that calculation is purely
hypothetical, because such cases as Lee v. Clinton, 209 F.3d
1025, 1026 (7th Cir. 2000) require a showing of a nonfrivolous
claim in addition to an appellant’s inability to pay the filing
fee.

To that end the same considerations that this Court has

identified in its earlier Statement would call for denial of the
Application, and this Court does just that.

As indicated at the

end of the Statement, Bailey is free to re-tender the issue to
the Court of Appeals.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

November 13, 2012

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