Harris v. Smith

Filing 43

ORDER signed by Judge Pamela Pepper on 6/12/2018. 30 Petitioner's request for leave to appeal without prepayment of the filing fee GRANTED. (cc: all counsel, via mail to Warden and Jeffrey Harris at Oshkosh Correctional Institution; 7th Circuit PLRA Attorney)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY HARRIS,
Petitioner/Appellant,
v.

Case No. 17-cv-663-pp
Appeal No. 18-1754

JUDY SMITH, Warden,
Oshkosh Correctional Institution
Respondent/Appellee.
AMENDED ORDER GRANTING THE PETITIONER’S MOTION FOR LEAVE
TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 38)
I.

Standard For Allowing Appellant To Proceed Without Prepaying the
Appellate Filing Fee
In determining whether a litigant is eligible to proceed on appeal without

prepaying the filing fee, the court must first determine whether he is indigent,
then determine whether he has taken the appeal in good faith for purposes of
Fed. R. App. 24(a)(3).
A.

Indigence

The Prison Litigation Reform Act does not apply to habeas cases. Walker
v. O’Brien, 216 F.3d 626, 634 (7th Cir. 2000) (“We therefore hold that if a case
is properly filed as an action under 28 U.S.C. §§2241, 2254, or 2255, it is not a
“civil action” to which the PLRA applies.”). The court decides whether a
petitioner is indigent by relying solely on the information the petitioner
provides in his affidavit of indigence. See Martin v. United States, 96 F.3d 853,
855-56 (7th Cir. 1996); see also United States v. McNair, No.1:02-CR-12, 2008

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WL 4776561, at *2 (N.D. Ind. Oct. 27, 2008) (“[U]nder Martin, there is no need
for a prisoner to submit a prisoner trust account statement to proceed IFP in a
habeas corpus or section 2255 appeal.”).
The petitioner’s affidavit indicates that he has no income, no bank
accounts and no expenses of any kind. Dkt. No. 38 at 2-7. He indicated that he
is unemployed, that he has lost nearly all of his family members, and that he
recently had a heart attack (and died) and that his health doesn’t allow him to
work. Id. at 7. Based on this information, the court finds that the petitioner is
indigent.
In a prior order dated May 14, 2018, the court erroneously applied the
PLRA standard to the petitioner’s case, and required the petitioner to file his
certified trust account statement. See Dkt. No. 39. The petitioner complied with
that order, and filed his trust account statement. Dkt. No. 40. The court then
issued another erroneous order, dated June 8, 2018, requiring the petitioner to
pay an initial partial filing fee of $20.71. Dkt. No. 41.
The court has vacated those two orders, see Text-Only Order of June 11,
2018, because the PLRA does not apply to properly filed habeas petitions. The
court apologizes to the petitioner for this error, and advises him that he does
not need to pay an initial partial filing fee.
B.

Appeal Taken in Good Faith

A district court should not apply an inappropriately high standard when
making a good faith determination. Pate v. Stevens, 163 F.3d 437, 439 (7th Cir.
1998). An appeal taken in “good faith” is one that seeks review of any issue
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that is not frivolous, meaning that it involves “legal points arguable on their
merits.” Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983) (quoting Anders
v. California, 386 U.S. 738 (1967)); see also, Coppedge v. United States, 369
U.S. 438, 445 (1962)). Put another way, a litigant takes an appeal in good faith
if “a reasonable person could suppose that the appeal has some merit.” Walker
v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)). On the other hand, an appeal
taken in bad faith is one that is based on a frivolous claim—that is, a claim
that no reasonable person could suppose has any merit. Lee v. Clinton, 209
F.3d 1025, 1026 (7th Cir. 2000)).
At the end of the court’s order dismissing the appellant’s habeas petition,
it declined to issue a certificate of appealability. The court found:
Here, the court declines to issue a certificate of
appealability because the petitioner has not made a substantial
showing that the grounds in his petition are timely; has not
made a substantial showing that the court should equitable toll
the statute of limitations; and has not made a substantial
showing of his actual innocence. In a case challenging a thirtynine-year-old conviction that has been considered multiple times
by each level of the state courts, the court finds that reasonable
jurists would not debate that the petition should have been
resolved in a different manner.
Dkt. No. 26 at 46.
One might conclude under these circumstances that the appellant has
not filed this appeal in good faith. But the good-faith standard for allowing a
party to appeal without prepaying the filing fee is a lower standard that the
standard that a habeas petitioner must meet to obtain a certificate of
appealability. O’Brien, 626 F.3d at 631-32. “[T]o determine that an appeal is in

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good faith, a court need only find that a reasonable person could suppose that
the appeal has some merit.” Id. (citation omitted).
While it is a close call, the court cannot conclude that the appellant will
not be able to point the appellate court to a single issue that a reasonable
person would not suppose had some merit. The court will conclude, therefore,
that the appellant filed this appeal in good faith.
II.

Conclusion
The court GRANTS the petitioner’s motion for leave to appeal without

prepayment of the filing fee. Dkt. No. 38.
Dated in Milwaukee, Wisconsin this 12th day of June, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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