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Habeas Petitioner Cannot Avoid Payment of Appellate Filing Fees

Habeas Petitioner Cannot Avoid Payment of Appellate Filing Fees

by Michael Brodheim

The Seventh Circuit Court of Appeals has held that a prisoner seeking collateral relief cannot avoid paying appellate filing fees.

Following a murder conviction, Indiana prisoner Kelly S. Thomas was sentenced to 65 years in prison. After his appeal and collateral attack were rejected in the state courts, he filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254. When that was denied he filed a notice of appeal. The district court judge declined to issue a certificate of appealability, instead certifying that the appeal was not taken in good faith.

Based on that certification, Thomas was required to pay appellate fees of $455 before the Seventh Circuit would consider entertaining his appeal, unless he could persuade the appellate court to allow him to proceed in forma pauperis. Even then he would still owe the fees – if he won, they would be shifted to the state as part of the appeal costs; if he lost, the fees would be “payable like any other debt.”

Thomas filed a motion requesting that the Court of Appeals disregard the district court’s certification of bad faith. He contended that prisoners are simply not required to pay appellate fees assessed under the Prison Litigation Reform Act (PLRA).

The Seventh Circuit rejected his argument, noting that appellate fees are authorized by 28 U.S.C. § 1913, which long predates the PLRA. The Court of Appeals gave Thomas 21 days to file a motion for permission to proceed in forma pauperis (which depends on demonstrating that he cannot pay the fees and his appeal is not frivolous) and a certificate of appealability (which is dependant on a “substantial showing of the denial of a constitutional right”).

The Seventh Circuit noted that an appeal can be non-frivolous and still fail to meet the standard for a certificate of appealability. Thomas filed a petition for writ of certiorari, which was denied on November 18, 2013. See: Thomas v. Zatecky, 712 F.3d 1004 (7th Cir. 2013), cert. denied.


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Related legal case

Thomas v. Zatecky