Opinion
Case No. 1:19-cv-11715
2023-03-07
Tory Reshawn HOPKINS, Petitioner, v. UNITED STATES of America, Respondent.
Tory Reshawn Hopkins, Welch, WV, Pro Se.
Tory Reshawn Hopkins, Welch, WV, Pro Se.
ORDER DENYING PETITIONER'S MOTION FOR REIMBURSEMENT
THOMAS L. LUDINGTON, United States District Judge
Before this court is Petitioner Tory Reshawn Hopkins's Motion for Reimbursement of $505 Filing Fee. ECF No. 1. As explained hereafter, it will be denied.
On March 10, 2020, Petitioner's first § 2255 Motion was denied. United States v. Hopkins, No. 1:18-CR-20166, 2020 WL 1149954, at *4 (E.D. Mich. Mar. 10, 2020). That same Order denied him a certificate of appealability and leave to appeal in forma pauperis. Id. Indeed, he retained counsel for the underlying criminal case. United States v. Hopkins, No. 1:18-CR-20166 (E.D. Mich. Apr. 10, 2018), ECF No. 10.
On December 28, 2020, Petitioner filed a notice of appeal. Hopkins, No. 1:18-CR-20166 (E.D. Mich. Dec. 28, 2020), ECF No. 37. Two days later, the Sixth Circuit gave Petitioner "until January 13, 2021 to either pay the $505.00 appellate filing fee (or the amount stated by the district court) or file a motion for pauper status on appeal [with the Sixth Circuit]." Hopkins v. United States, No. 20-2293 (6th Cir. Dec. 30, 2020), ECF No. 1-1 at PageID.1 (emphasis omitted). As suggested, Petitioner timely filed a motion to proceed in forma pauperis on appeal and a motion for a certificate of appealability. Hopkins, No. 20-2293 (6th Cir. Jan. 15, 2021), ECF Nos. 4; 7.
Then Petitioner seems to have become confused. What he should have done is waited for the Sixth Circuit to determine whether he was entitled to proceed in forma pauperis on appeal. Instead, on February 20, 2021, he unnecessarily filed a second notice of appeal in this Court, along with an application to appeal in forma pauperis and a motion for a certificate of appealability. Hopkins, No. 1:18-CR-20166, (E.D. Mich. Feb. 10, 2020), ECF Nos. 44; 44; 45. This Court denied those requests because he "had not demonstrated anything in his application or Motion that would change this earlier determination." Hopkins, No. 1:18-CR-20166, (E.D. Mich. Mar. 12, 2021), ECF No. 47 at PageID.245. Two weeks later, rather than waiting for the Sixth Circuit's determination of his still-pending motions for in forma pauperis status and a certificate of appealability, Petitioner paid a $505.00 filing fee for his first notice of appeal. Hopkins, No. 1:18-CR-20166, (E.D. Mich. Mar. 26, 2021), ECF No. 50. Notably, Petitioner was not required to pay that filing fee—at least not by this Court or the Sixth Circuit.
On March 29, 2021, three days after paying his $505 filing fee, the Sixth Circuit dismissed his appeal for lack of jurisdiction. Hopkins, No. 20-2293 (6th Cir. Mar. 29, 2021), ECF No. 8.
Twenty-three months later, Petitioner filed a motion here for reimbursement of the $505.00 filing fee. He correctly explains that he "filed a notice of appeal and paid the $505.00 filing fees," and that "[t]he filing fee requirements of the Prison Litigation Reform Act of 1996, pursuant to 28 U.S.C. § 1915(b) do not apply to cases or appeals brought under 28 U.S.C. § 2255." ECF No. 1 at PageID.1-2 (cleaned up) (citing Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997)).
But he is incorrect that the district court "require[d] him to pay" $505.00. Id. at PageID.2. "The 'good faith' 'requirements of the Prison Litigation Reform Act are inapplicable to [appeals under] § 2254 and § 2255.' " Nelson v. Trierweiler, No. 2:17-CV-10564, 2019 WL 11031732, at *1 (E.D. Mich. June 26, 2019) (quoting Kincade, 117 F.3d at 952). "Rather, to appeal in forma pauperis in a § 2255 case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status pursuant to Fed. R. App. P. 24(a)." Taylor v. United States, No. 2:18-CV-02582, 2021 WL 2371352, at *3 (W.D. Tenn. June 9, 2021) (citing Kincade, 117 F.3d at 952). Rule 24(a) requires the district court to determine whether "the party may proceed on appeal without prepaying or giving security for fees and costs." FED. R. APP. P. 24(a)(2). And that is what this Court did, twice. Within 30 days of service of the district court's denial, the "party may file a motion to proceed on appeal in forma pauperis in the court of appeals." FED. R. APP. P. 24(a)(5). That is exactly what Petitioner did at the Sixth Circuit. But then he paid the filing fee instead of waiting for the Sixth Circuit's determination. And, because the Sixth Circuit no longer needed to wait to determine whether Petitioner could proceed in forma pauperis, it resolved his pending appeal within three days of the payment. Hopkins v. United States, No. 20-2293 (6th Cir. Mar. 29, 2021), ECF No. 8 (dismissing appeal for lack of jurisdiction because it was untimely).
In sum, Petitioner did not have to pay the $505.00 filing fee until the Sixth Circuit either directed him to do so or resolved his pending application to proceed in forma pauperis. Instead of waiting, he decided to pay $505.00, which belies his claim that he was unable to pay the fees. And this Court cannot locate any law that authorizes refund of a properly paid filing fee.
Accordingly, it is ORDERED that Petitioner's Motion for Reimbursement of $505 Filing Fee, ECF No. 1, is DENIED.
This is a final order and closes the above-captioned case.