Hamilton, Robert v. Douma, Tim

Filing 60

ORDER denying 43 , 59 Motion for Certificate of Appealability; granting 44 Motion for Leave to Proceed in forma pauperis on appeal. Initial partial appeal fee of $10.85 due 2/17/2017. Signed by Magistrate Judge Stephen L. Crocker on 1/13/2017. (jef),(ps)

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

ROBERT LEE HAMILTON,
Petitioner,

ORDER

v.

15-cv-510-bbc

TIM DOUMA, Warden for New Lisbon
Correctional Institution,
Respondent.

On September 20, 2016, the court denied Robert Lee Hamilton’s petition for a writ
of habeas corpus under 28 U.S.C. § 2254 because he failed to show that the challenged state
court decisions involved an unreasonable application of federal law or an unreasonable
determination of the facts. Petitioner was denied a certificate of appealability and judgment
was entered against him on the same day. Dkts. 39 & 40. Petitioner nonetheless filed a
Motion for Issuance of Certificate of Appealability on October 20, 2016, and the court
entered an order requesting clarification as to whether petitioner had intended to file a
notice of appeal. Dkts. 43 & 48. Petitioner has responded to that order and says that he
indeed intended to file a notice of appeal.

Dkt. 49.

His motion for a certificate of

appealability will therefore be denied without prejudice.
Petitioner also has filed another Motion for Certificate of Appealability, dkt. 59,
which I will deny on the same basis.

Petitioner should refer to the court’s order of

September 20, 2016, dkt. 39 at 7-8, for the reasons why a certificate of appealability was
denied in the first place.) Petitioner is reminded that he may challenge this decision by

seeking a certificate of appealability from the Court of Appeals, pursuant to Fed. R. App. P.
22.
Petitioner has now filed a notice of appeal. Dkt. 50. Also pending before the court
is his motion for leave to proceed in forma pauperis on appeal. Dkt. 44. I will grant that
request. Here’s why:
Petitioner’s appeal is not subject to the 1996 Prison Litigation Reform Act. Walker
v. O’Brien, 216 F.3d 626, 628-29 (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
$505 filing fee 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 to appeal in forma pauperis, the court applies
the formula set out in 28 U.S.C. § 1915(b)(1). From petitioner’s trust fund account
statement, I conclude that he qualifies for indigent status. I also assess petitioner an initial
partial payment of the $505 filing fee in the amount of $10.85.
Finally, petitioner has filed a motion for appointment of counsel. Dkt. 47. This
request is not properly raised in this court. Petitioner must make this request directly to the
Court of Appeals for the Seventh Circuit if he wishes to seek appointed counsel to represent
him there.

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ORDER
IT IS ORDERED that
1.

Petitioner Robert Lee Hamilton’s motion for leave to proceed in forma

pauperis on appeal, dkt. 44, is GRANTED. Petitioner may have until February 17, 2017,
to submit a check or money order made payable to the clerk of court in the amount of
$10.85. If by February 17, 2017, petitioner fails to pay the initial partial payment or explain
his failure to do so, then I will advise the court of appeals of his noncompliance in paying
the assessment so that it may take whatever steps it deems appropriate with respect to this
appeal.
2.

Petitioner’s two motions for a certificate of appealability, dkts. 43 & 59, and

his motion for appointment of counsel, dkt. 47, are DENIED without prejudice to
petitioner’s refiling the requests directly with the Court of Appeals for the Seventh Circuit.

Entered this 13th day of January, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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