Opinion
11-cv-789-bbc
03-28-2012
JOHN JACQUES, Petitioner, v. MR. PUGH, Warden, Respondent.
ORDER
On April 4, 2011, I denied petitioner John Jacques's petition for a writ of habeas corpus under 28 U.S.C. § 2254 because he had not shown that his custody was in violation of federal law. In that order I denied petitioner's request for a certificate of appealability. Now, petitioner has filed a notice of appeal.
Because petitioner has not paid the $455 fee for filing an appeal, I construe his notice as a request for leave 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 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 the 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.
ORDER
IT IS ORDERED that a decision whether petitioner John Jacques may proceed in forma pauperis on appeal is STAYED. Petitioner may have until April 13, 2012 in which to submit a trust fund account statement for the six-month period beginning approximately September 13, 2011 and ending approximately March 13, 2012. If, by April 13, 2012, 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.
BY THE COURT:
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BARBARA B. CRABB
District Judge