Jackson, Kellis v. Holinka, C.

Filing 34

ORDER Construing Notice of Appeal as Request to Proceed ifp. Trust Fund Account Statement due 5/4/2011. Signed by District Judge William M. Conley on 4/14/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN

KELLIS DJON JACKSON,
Petitioner,

ORDER

v.
10-cv-193-wmc
W ARDEN C. HOLINKA,
Defendant.

On M arch 4, 2011, this court dismissed petitioner Kellis Jackson’s petition for a writ

of habeas corpus under 28 U.S.C. § 2241 because the Parole Commission properly applied
the correct guidelines to Jackson’s case and did not abuse its discretion in setting the date
for his hearing. Jackson’s motion to alter or amend judgment was also denied. Now before
the court is Jackson’s notice of appeal. Because Jackson has not paid the $450 filing fee, the
court concludes that he is requesting to proceed in forma pauperis on appeal.
Jackson’s appeal is not subject to the 1996 Prison Litigation Reform Act. Walker v.
O'Brien, 216 F.3d 626, 628-629 (7th Cir. 2000) ("the PLRA does not apply to any requests
for collateral relief under 28 U.S.C. §§ 2241, 2254, or 2255"). Nevertheless, in determining
whether a petitioner is eligible for indigent status on appeal under 28 U.S.C. § 1915, the
court must find both that the petitioner does not have the means to pay the $455 fee for
filing his appeal and that the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1) and (3).
The court does not intend to certify that petitioner’s appeal is not taken in good faith.
In determining whether a habeas corpus petitioner is eligible for pauper status, the
court applies the formula set out in 28 U.S.C. § 1915(b)(1).

Specifically, from the

petitioner’s trust fund account statement for the six-month period immediately preceding

the filing of his appeal, the court adds the deposits made to petitioner’s account and
calculates 20% of the greater of the average monthly deposits or the average monthly balance
in the account. If the 20% figure is more than the fee petitioner owes for filing his appeal,
he may not proceed in forma pauperis. If the 20% figure is less than $455, he must prepay
whatever portion of the fee the calculation yields.
The court cannot tell whether petitioner qualifies for indigent status on appeal
because he has not submitted a trust fund account statement for the six-month period
immediately preceding the filing of his notice of appeal. Therefore, a decision on Jackson’s
request for leave to proceed in forma pauperis will be stayed pending his submission of the
necessary trust fund account statement.

ORDER
IT IS ORDERED that a decision whether Jackson may proceed in forma pauperis on
appeal is STAYED. Jackson may have until May 4, 2011 in which to submit a trust fund
account statement for the six-month period beginning approximately September 30, 2010
and ending approximately March 30, 2011. If Jackson fails to submit the necessary trust
fund account statement by May 4, 2011, the court will deny his request for leave to

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proceed in forma pauperis on appeal for his failure to show that he is entitled to indigent
status on appeal.
Entered this 14th day of April, 2011.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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