Wilborn v. Gaetz

Filing 56

ORDER granting 50 Motion for Leave to Appeal in forma pauperis and denying as as moot 51 Motion for Certificate of Appealability. Signed by Chief Judge David R. Herndon on 3/25/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LERON WILBORN
Petitioner,
v.

10-0423-DRH

RANDY PFISTER,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Pending before the Court is petitioner’s motion for leave to proceed in
forma pauperis (“IFP”) on appeal (Doc. 50). Based on the following, the Court
grants the motion to proceed IFP.
In evaluating petitioner’s motion to appeal IFP, the Court must determine
whether the appeal is taken in good faith. As to the good faith requirement, the
Court must “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); Lee v.

Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). “[A]n appeal in a frivolous suit
cannot be ‘in good faith’ under § 1915(a)(3), because ‘good faith’ must be viewed
objectively.” Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000). See also
Lee, 209 F.3d at 1026; Tolefree v. Cudahy, 49 F.3d 1243, 1244 (7th Cir. 1995)
(“[T]he granting of leave to appeal in forma pauperis from the dismissal of a

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frivolous suit is presumptively erroneous and indeed self-contradictory.”) That
said, a district court is under an obligation “not to apply an inappropriately high
standard when making good faith determinations.” Pate v. Stevens, 163 F.3d
437, 438 (7th Cir. 1998).
In the case at bar, the Court denied and dismissed with prejudice the 28
U.S.C. § 2254 petition finding that petitioner is not entitled to relief. However, the
Court is unable to certify that this appeal is not taken in good faith.

See 28

U.S.C. § 1915 (a)(3).
Full payment of the $505.00 appellate filing and docketing fee is not
required in a habeas action under 28 U.S.C. § 2254. See Walker v. O’Brien, 216
F.3d 626, 638 n.5 (7th Cir. 2000) (courts cannot use the installment payment
procedure established by the Prisoner Litigation Reform Act (PLRA) in 28 U.S.C. §
1915(b)(2) to collect filing fees in habeas appeals). However, the Walker court
noted that “[a] court has it within its discretion to insist that litigants proceeding
IFP in non-PLRA cases must nonetheless pay a fee commensurate with their
ability to do so.” Id.
In regard to the district court’s discretion in ruling on an IFP request, the
Walker court references Longbehn v. United States, 169 F.3d 1082, 1083 (7th
Cir. 1999). In Longbehn, the district court, after recognizing that the PLRA did
not apply to a habeas proceeding, nevertheless exercised its discretion to adopt
the PLRA formula in § 1915(b)(1) in order to calculate a reasonable partial
payment of an appellate filing fee where the petitioner had requested to proceed

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IFP. Longbehn, 169 F.3d at 1083 (affirming Longbehn v. Reno, 27 F. Supp. 2d
1162, 1164 (W.D. Wis. 1998)). The Seventh Circuit stated that this exercise of
discretion was sound, and further “commend[ed] [the Judge’s] approach to other
district judges.” Id.
Under the approach recommended in Longbehn, this Court may
appropriately adopt the PLRA formula to calculate a partial payment of the
appellate fee. The undersigned Judge is persuaded that this use of § 1915(b)(1) is
a proper exercise of the Court’s discretion in arriving at a fair, sliding-scale
formula for an appropriate partial fee payment.
The Court finds that petitioner is indigent. Therefore, the instant motion
(Doc. 50) is GRANTED.

Based on petitioner’s six month deposit account

balance, IT IS HEREBY ORDERED that petitioner shall make a payment of
$16.15 toward the appellate docketing fee, and is granted leave to proceed IFP
with respect to the remainder of the fee. A litigant who proceeds IFP still owes the
fees. If he wins, the fees are shifted to the adversary as part of costs; if he loses,
the fees are payable like any other debt. Thomas v. Zatecky, 712 F.3d 1004,
1005 (7th Cir. 2013).

Petitioner is DIRECTED to pay the $16.15 to the Clerk of

Court upon receipt of this Memorandum and Order. Payment shall be mailed to:
Clerk of the Court, United States District Court for the Southern District of
Illinois, P.O. Box 249, East St. Louis, Illinois 62202.
Petitioner is ADVISED that at the time application was made under 28
U.S.C. § 1915 for leave to appeal this action without being required to prepay fees

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and costs or give security for the same, the applicant and his or her attorney were
deemed to have entered into a stipulation that the recovery, if any, secured in the
action shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid
costs taxed against plaintiff and remit the balance to plaintiff. SDIL-LR 3.1(c)(1).
Finally, petitioner is ADVISED that he is under a continuing obligation to
keep the Clerk of this Court informed of any change in his whereabouts. This
shall be done in writing and not later than seven (7) days after a transfer or other
change in address occurs.
Lastly, the Court DENIES as moot Wilborn’s motion for certificate of
appealability (Doc. 51). The Court previously declined to issue a certificate of
appealability in its January 15, 2014 Memorandum and Order denying and
dismissing with prejudice Wilborn’s habeas corpus petition (Doc. 43). .
IT IS SO ORDERED.
Signed this 25th day of March, 2014.

Digitally signed by
David R. Herndon
Date: 2014.03.25
14:18:33 -05'00'
Chief Judge
United States District Court

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