Jones v. United States of America
Filing
11
ORDER signed by Judge J.P. Stadtmueller on 8/23/2017: DENYING 9 Petitioner's Motion to Waive Appellate Filing Fee and DENYING 10 Petitioner's Motion for Leave to Appeal Without Prepayment of the Filing Fee. (cc: all counsel, via mail to Marquise Jones at Oxford Federal Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARQUISE JONES,
Petitioner,
v.
Case No. 17-CV-933-JPS
7th Circuit Case No. 17-2612
UNITED STATES OF AMERICA,
Respondent.
ORDER
On July 14, 2017, the Court screened Petitioner’s motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket #2).
The Court determined that the motion was plainly without merit under
applicable Seventh Circuit precedent and therefore entered judgment
against Petitioner. (Docket #2, #3). Petitioner filed a notice of appeal on
August 9, 2017. (Docket #4). Two weeks later, he filed a motion to waive the
appellate filing fee and a motion for leave to appeal without prepayment of
that fee. (Docket #9, #10). For the reasons stated below, the Court will deny
both motions.
First, the Court cannot waive the appellate filing fee in its entirety.
28 U.S.C. § 1915(b)(1) mandates that even if a prisoner is granted leave to
appeal in forma pauperis, he must pay the full amount of the appellate filing
fee using the installment method prescribed in the statute. The Court cannot
absolve Petitioner of this requirement. See McDaniel v. Meisner, No. 14–cv–
53–pp, 2015 WL 4773135, at *5 (E.D. Wis. Aug. 12, 2015); Lee v Litscher, No.
01–cv–197–jcs, 2009 WL 2777695, at *1 (W.D. Wis. Aug. 27, 2009).
Second, the Court cannot grant Petitioner leave to proceed on appeal
without prepayment of the filing fee. Petitioner, a prisoner proceeding pro
se, may not proceed without prepayment of the filing fee on appeal if the
Court certifies in writing that the appeal is not taken in “good faith.” 28
U.S.C. § 1915(a)(3). To determine whether a prisoner takes an appeal in
“good faith,” the Court must determine whether “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). An
appeal is taken in “good faith” when it seeks review of an issue that is not
clearly frivolous. Lee, 209 F.3d at 1026.
The fact that the Court has already denied Petitioner a certificate of
appealability, see (Docket #2 at 5), is not fatal to a request to proceed in forma
pauperis on appeal, since the standard governing the issuance of a certificate
of appealability is more demanding than the standard for determining
whether an appeal is in good faith for purposes of proceeding in forma
pauperis on appeal. See Walker, 216 F.3d at 631–32. Thus, an unsuccessful
movant for relief under Section 2255 may proceed in forma pauperis on
appeal even after a district court has denied issuance of a certificate of
appealability. See id.
While it is possible for a habeas petitioner to warrant in forma pauperis
status on appeal despite being denied a certificate of appealability,
Petitioner has not threaded that needle. Nowhere in his notice of appeal or
in his two fee-related motions does Petitioner identify any alleged error this
Court committed. Moreover, the Court’s order denying his motion reveals
that well-settled principles of law foreclose Petitioner’s claims for relief. See
(Docket #2 at 3–4). As a result, the Court has no basis on which to conclude
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that his appeal is anything but frivolous, and the Court therefore finds that
Petitioner’s appeal is not taken in good faith.
Finally, because the Court certifies that the appeal is not taken in
good faith, the Court provides the following information to Petitioner
regarding proceeding before the Seventh Circuit. Petitioner will not be able
to proceed on appeal without prepayment of the filing fee unless the Court
of Appeals gives him permission to do so. Petitioner has thirty (30) days
from the date of this Order to request that the Seventh Circuit review the
Court’s denial of his request for leave to appeal without prepayment of the
filing fee on appeal. Fed. R. App. P. 24. If Petitioner requests review by the
Seventh Circuit, he must include an affidavit and statement of issues he
intends to present on appeal, pursuant to Fed. R. App. P. 24(a). He must
also provide a copy of this Order, in addition to the notice of appeal he
previously filed. If Petitioner does not request review of this order, the
Seventh Circuit may choose not to address the Court’s denial of Petitioner’s
motion; instead, it may require Petitioner to pay the full filing fee before it
considers his case. Failure to pay a required fee may result in dismissal of
the appeal.
Accordingly,
IT IS ORDERED that Petitioner’s motion to waive the appellate
filing fee (Docket #9) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Petitioner’s motion for leave to
appeal without prepayment of the filing fee (Docket #10) be and the same
is hereby DENIED.
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Dated at Milwaukee, Wisconsin, this 23rd day of August, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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