Boyce v. Lemke et al

Filing 16

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 5/30/2013.(pcs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
ANTOINE BOYCE #R-51888,
)
)
Petitioner,
)
)
v.
)
)
MICHAEL LEMKE, Warden,
)
)
Respondent.
)

No. 13 C 1923
USCA No. 13-1873

MEMORANDUM ORDER
On April 22, 2013 this Court issued a brief memorandum order
(“Order”) that was prompted by the notice of appeal that Antoine
Boyce (“Boyce”) had filed from this Court’s March 14, 2013
memorandum order that dismissed his attempted 42 U.S.C. §2254
Petition for Writ of Habeas Corpus (“Petition”).

As the Order

reflected, Boyce had accompanied his notice of appeal with a
handprinted Motion for Leave To Proceed In Forma Pauperis
(“Motion”) and a handprinted Application for a Certificate of
Appealability (“Application”).
Because the latter request could be dealt with simply on the
basis of this Court’s dismissal of the Petition, the Order was
able to rule on the Application promptly:

It concluded by

denying a certificate of appealability (“COA”) and by apprising
Boyce that he could tender that issue to the Court of Appeals
pursuant to Fed. R. App. P. 22(b)(1).

But because the Motion

lacked the accompanying statement of transactions in Boyce’s
prison trust account (which contained the information needed for

this Court to make the 28 U.S.C. §1915 (“Section 1915”)
calculation as to Boyce’s in forma pauperis posture, the Order
included this directive:
Accordingly Boyce is ordered to obtain and to submit to
this Court as quickly as possible the required
statement of all transactions in his trust fund account
at Stateville Correctional Center, where he is now
incarcerated) for the period from October 1, 2012
through March 31, 2013.
As far as this Court knew, silence descended at that
point--no trust fund account statement was sent to this Court’s
chambers.

After a month’s wait, this Court was therefore about

to dictate a further memorandum order denying the Motion because
of Boyce’s apparent noncompliance, but it first had its courtroom
deputy inquire of the Court of Appeals’ personnel as to whether
Boyce had sought a COA from that court (if that had been done and
if the COA had then been denied, that would of course moot the
Motion).

That inquiry produced the response that Boyce had in

fact transmitted his trust fund account statement to the Court of
Appeals back on May 8, but the staff people there simply let it
sit without apprising this Court or its staff that Boyce had
indeed complied with the Order.
In any event, this Court now has a copy of the trust fund
account statement.

Although the accountant at Stateville

Correctional Center, where Boyce is in custody, has certified
that the average monthly deposits to Boyce’s account during the
relevant six-month period amounted to $162.73, nothing more than
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eyeballing the document was needed to see that the average
balance in the account (see Section 1915(b)(1)(B)) far exceeded
the average monthly deposit (the alternative set out in Section
1915(b)(1)(A)).

This Court has engaged in the laborious task of

calculating the weighted average balance in the account and has
determined that it amounted to $386.26, 20% of which (see Section
1915(b)(1)) comes to $77.25.
As this Court has remarked in other like cases, however,
Section 1915(a)(3) precludes the taking of an appeal in forma
pauperis “if the trial court certifies in writing that it is not
taken in good faith,” and such cases as Lee v. Clinton, 209 F.3d
1025, 1026 (7th Cir. 2000) teach that the absence of good faith
equates to a prisoner-appellant’s submission of nothing more than
legally frivolous contentions.

In this Court’s view Boyce fails

that test because his three claims of asserted constitutional
deprivation were solely matters of state criminal law, which
therefore failed to meet either standard set out in Section
2254(d).
Accordingly this Court finds that Boyce is disentitled to
proceed on appeal in forma pauperis, so that his Motion should be
denied.

If however the Court of Appeals differs with that

evaluation, this Court will proceed with the Section 1915
analysis as to payment of the $455 in appellate fees on an

3

installment basis.

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

May 30, 2013

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