Hayes v. Martin
Filing
29
MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 6/12/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
CURMILLER HAYES #M10616,
)
)
Petitioner,
)
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v.
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ALLAN MARTIN, Warden,
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Respondent.
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No. 13 C 2278
(USCA No. 13-1967)
MEMORANDUM ORDER
Because this Court had been given to understand that the
appeal by habeas petitioner Curmiller Hayes (“Hayes”) had been
dismissed voluntarily, it issued a brief May 24, 2013 minute
order that denied as moot Hayes’ motion to proceed on appeal in
forma pauperis (“IFP”).
That information has proved to be only
partially accurate, because it turns out that Hayes had in fact
filed two notices of appeal and only one of them had been
dismissed voluntarily, so that his motion to proceed IFP should
still be addressed by this Court.
This Court’s April 3, 2013 memorandum opinion and order and
its May 6, 2013 denial of a certificate of appealability (“COA”)
reflect this Court’s rejection of Hayes’ Petition for Writ of
Habeas Corpus (“Petition”) on the substantive basis that the
Illinois Appellate Court’s decision in his case had
carefully--and squarely-- demonstrated the groundlessness of
Hayes’ Petition.
After careful analysis, this Court held that
any ineffective assistance of counsel claim that Hayes could
advance via his Petition could not satisfy the prejudice prong of
Strickland v. Washington, 466 U.S. 668 (1984).
When this Court initially addressed Hayes’ In Forma Pauperis
Application (“Application”) in conjunction with his appeal, it
issued a May 9 memorandum order that noted:
1.
the failure of Hayes’ counsel to update an earlier
printout of transactions in Hayes’ trust account at Shawnee
Correctional Center (“Shawnee”) to cover the relevant sixmonth period immediately preceding the filing of the notice
of appeal (the printout that had been furnished with the
Application was the selfsame one that had been tendered at
the time Hayes’ Petition had originally been filed in this
District Court, when counsel was unaware of the minimal $5
filing fee required at this level) and
2.
as this Court had observed in connection with its
earlier consideration of other habeas cases at the appellate
level, the seemingly mixed signals that are conveyed by 28
U.S.C. §1915(a)(3)1 on the one hand and, on the other, the
curious portions of Section 1915 that call for the payment
of the full appellate filing and docketing fees in
installments.
Now, however, this Court has found it necessary to take a
1
Further citations to 28 U.S.C. §1915 will take the form
“Section --,” omitting the prefatory 28 U.S.C.
2
fresh look a the latter subject in connection with Hayes’ Amended
Motion To Proceed In Forma Pauperis, which has been accompanied
by an updated Application and an updated printout of Hayes’ trust
fund account at Shawnee.
This Court’s further research in that
respect has brought to the fore the per curiam opinion in Moran
v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000), which succinctly
stated two propositions that control the current situation:
Lee v. Clinton, 209 F.3d 1025 (7th Cir.2000), holds
that an appeal in a frivolous suit cannot be “in good
faith” under §1915(a)(3), because “good faith” must be
viewed objectively. Because the district judges
believed all five suits to be frivolous, all five
appeals should have been certified as not in good
faith, and prepayment of all appellate fees should have
been required.
*
*
*
Walker [v. O'Brien, 216 F.3d 626, 633-37 (and
particularly 636-37)(7th Cir. 2000)], issued
contemporaneously with this opinion, holds that state
prisoners who desire to protest actions by prison
administrators, and who are entitled to collateral
review (an important qualification), must meet
conditions laid down by §2254. Part III of Walker
holds that no petition for a writ of habeas corpus is a
“civil action” for purposes of §1915(b), overruling
Part III of Newlin. The fee-collection mechanism of
the PLRA therefore does not apply to any of these
cases.
As this Court’s substantive decision (including its
quotation of the on-all-fours language from the Illinois
Appellate Court) and its denial of a COA reflect, it has
determined that Hayes’ appeal does not satisfy the objective good
faith requirement as spelled out in Lee v. Clinton.
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In addition,
Moran v. Sondalle confirms that the “fee-collection mechanism of
the PLRA [Section 1915] therefore does not apply” here.
Consequently the Moran case requires Hayes’ prepayment of all
appellate fees.
In sum, Hayes’ Amended Motion To Proceed In Forma Pauperis
is denied, and he is obligated to pay the $455 in filing and
docketing fees on appeal.
As this Court has earlier noted in its
short ruling denying issuance of a COA, Hayes may of course
tender the issues dealt with here to the Court of Appeals for its
consideration.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
June 12, 2013
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