Brown, John v. Clements, Marc
Filing
27
ORDER Construing 20 Notice of Appeal as Request to Proceed ifp. Trust Fund Account Statement due 8/9/2013. Signed by District Judge Barbara B. Crabb on 7/22/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - JOHN F. BROWN,
ORDER
Petitioner,
12-cv-861-bbc
v.
MARC CLEMENTS, Warden,
Fox Lake Correctional Institution,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - On June 6, 2013, I denied John F. Brown’s petition for a writ of habeas corpus under
28 U.S.C. § 2254 because he had not shown that he is entitled to a writ of habeas corpus.
Also in the June 6 order, I denied petitioner’s request for a certificate of appealability. Now
before the court is a document from petitioner that was forwarded from the Seventh Circuit
Court of Appeals, titled “Application for Certificate of Appealability from District Court.”
Petitioner followed up by filing a separate notice of appeal. To the extent that petitioner
seeks reconsideration of the earlier decision to deny him a certificate of appealability, he has
raised no new argument persuading me that the earlier decision was incorrect.
Turning to petitioner’s appeal, because he has not paid the $455 filing fee for the
appeal, I also construe his notice as a request to proceed in forma pauperis on appeal.
Petitioner'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
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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).
I do 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 a petitioner’s
trust fund account statement for the six-month period immediately preceding the filing of
his appeal, I add the deposits made to petitioner’s account and calculate 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.
I 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, I will stay a decision on petitioner’s
request for leave to proceed in forma pauperis pending his submission of the necessary trust
fund account statement.
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ORDER
IT IS ORDERED that a decision whether petitioner John F. Brown may proceed in
forma pauperis on appeal is STAYED. Petitioner may have until August 9, 2013 in which
to submit a trust fund account statement for the six-month period beginning approximately
December 27, 2012 and ending approximately June 27, 2013. If, by August 9, 2013,
petitioner fails to submit the necessary trust fund account statement, I will deny his request
for leave to proceed in forma pauperis on appeal for his failure to show that he is entitled to
indigent status on appeal.
Entered this 22d day of July, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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