Wednesday, March 13, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today
In Thomas v. Zatecky (SD Ind., Barker), a 6-page opinion, Chief Judge Easterbrook writes:
Kelly Thomas was sentenced to 65 years’ imprisonment for murder. Indiana’s judiciary affirmed his conviction on appeal and rejected his collateral attack. Thomas v. State, 965 N.E.2d 70 (Ind. App. 2012). A federal district judge denied Thomas’s petition for a writ of habeas corpus under 28 U.S.C. §2254, and he filed a notice of appeal. The judge declined to issue a certificate of appealability, see 28 U.S.C. §2253(c), and certified that the appeal had been taken in bad faith. See 28 U.S.C. §1915(a)(3). Thus Thomas must pay the $455 appellate fees, before any substantive step can be taken on appeal, unless he persuades this court to permit him to proceed in forma pauperis.
Thomas has filed a motion asking us to disregard the district court’s certification of bad faith. He contends that prisoners simply need not pay appellate filing and docketing fees. * * *
To sum up: The portions of §1915 and §1915A applicable exclusively to prisoners’ civil actions do not apply to collateral attacks on criminal judgments. But the portions of §1915 that apply generally are as relevant to collateral litigation as to other suits and appeals. Section 1915(a)(3) is one of those generally applicable provisions.
We therefore deny Thomas’s request that we permit him, and all other applicants for collateral relief, to file appeals without regard to the fees required by §1913 and the resolutions of the Judicial Conference. Thomas is, however, entitled to contest in this court the propriety of the district judge’s declaration that the appeal has been taken in bad faith—a phrase that despite lay usage has been understood to mean objective frivolousness. See Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000). A frivolous appeal never meets the standard for a certificate of appealability. But an appeal can be nonfrivolous and still flunk the standard established by §2253(c)(2), which conditions a certificate of appealability on “a substantial showing of the denial of a constitutional right.”
Thomas has filed a document captioned “Petition for Leave to File and Proceed on Appeal In Forma Pauperis”, but it does not attempt to demonstrate that the appeal is non-frivolous, let alone that a constitutional issue is “substantial.” We give him 21 days to file in this court a motion for permission to proceed in forma pauperis (which depends on demonstrating that he cannot pay the fees and that the appeal is not frivolous) and a certificate of appealability (which depends on “a substantial showing of the denial of a constitutional right”). Failure to meet this schedule will lead us to dismiss the appeal for failure to prosecute.
Posted by Marcia Oddi on March 13, 2013 11:13 AM
Posted to Ind. (7th Cir.) Decisions