Roberts, Kenneth v. McCulloch, Deb

Filing 28

ORDER on Appeal ifp request: Petitioner may have until October 2, 2014 to submit a six-month resident account statement for the period beginning approximately February 27, 2014 and ending approximately August 27, 2014. Signed by District Judge James D. Peterson on 9/18/2014. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

KENNETH A. ROBERTS,
ORDER
Petitioner,
13-cv-446-jdp
v.
DEB McCULLOCH,
Respondent.

On August 13, 2014, I denied petitioner Kenneth Roberts’s petition for a writ of
habeas corpus under 28 U.S.C. § 2254 after determining that he failed to show that his due
process rights were violated by the state courts. Petitioner has filed a notice of appeal and he
requests leave to proceed in forma pauperis. Because it does not appear that petitioner has filed
his appeal in bad faith or that leave to proceed is otherwise precluded by Federal Rule of
Appellate Procedure 24(a), the court certifies that he is eligible for indigent status.
Having found that petitioner is eligible to proceed in forma pauperis, the court must
determine whether he has the ability to pay some portion of the $505 appellate filing fee.
Although appeals taken in federal habeas corpus proceedings are not subject to filing-fee
requirements found in the Prison Litigation Reform Act (the “PLRA”), 28 U.S.C. § 1915(b),
a court may nonetheless require an indigent appellant in a non-PLRA case to “pay a fee
commensurate with their ability to do so.” Walker v. O’Brien, 216 F.3d 626, 638 n.5 (7th Cir.
2000) (citing Longbehn v. United States, 169 F.3d 1082, 1083-84 (7th Cir. 1999)). In other
words, a habeas petitioner may be required to make an initial payment in order to have his
appeal filed. See Webb v. Anderson, 224 F.3d 649, 653 (7th Cir. 2000). To arrive at an initial

partial payment, this court applies the same income and balance calculations as it does in
PLRA cases. See Longbehn, 169 F.3d at 1083-84 (approving calculation of initial partial filing
fee of appeal in non-prisoner cases).
I cannot determine what portion of the appellate filing fee petitioner will be required
to pay because he has not provided a resident account statement in support of his request for
leave to proceed in forma pauperis. Because petitioner’s appeal was filed on August 27, 2014,
his resident account statement should cover the period beginning approximately February 27,
2014 and ending approximately August 27, 2014. For his appeal to proceed, petitioner must
submit his resident account no later than October 2, 2014.

ORDER
IT IS ORDERED that:
1.

Petitioner Kenneth Roberts’s notice of appeal is not taken in bad faith for
purposes of Fed. R. App. P. 24(a)(3).

2.

Petitioner may have until October 2, 2014 to submit a six-month resident
account statement for the period beginning approximately February 27, 2014
and ending approximately August 27, 2014.

3.

If by October 2, 2014 petitioner fails to submit the necessary resident account
statement or show cause for his failure to do so, I will deny his request for
leave to proceed in forma pauperis on appeal for petitioner’s failure to show that
he is entitled to indigent status on appeal.

Entered this 18th day of September, 2014.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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