Opinion
Case No. 13-cv-4020
08-07-2013
ROBERTO LUIS MARQUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER & OPINION
This matter is before the Court on Petitioner's Motion for Leave to Appeal in forma pauperis. (Doc. 13). On June 6, 2013, the Court dismissed Petitioner's 28 U.S.C. § 2255 Motion as untimely, and declined to issue a Certificate of Appealability. (Doc. 7).
Though the Court denied Petitioner's Certificate of Appealability, it does not find that Petitioner brings his appeal in bad faith. "[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000) (citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)). The fact that the Court denied Petitioner's request for a Certificate of Appealability does not necessarily indicate that the appeal is not taken in good faith, as the standard for a Certificate is higher. See Walker, 216 F.3d at 631-32.
In the documents supporting his Motion for Leave to Appeal in forma pauperis, Petitioner indicates that he receives a monthly income of $45-50, and that he has no other sources of income. (Doc. 13 at 5). As of July 30, 2013, Petitioner had a balance of $12.27 in his trust fund account, and his average balance for the previous six months was $25.19. (Doc. 13 at 6-7). Petitioner had received deposits totaling $266.29 over the past six months, which works out to an average monthly deposit total of $44.38. (Doc. 13 at 8).
The form Petitioner completed states that he has no income or property, but this is belied both by Petitioner's later statement that he earns $45-50/month, and by the trust fund account statement from his institution, which shows monthly payroll deposits within that range. (Doc. 13).
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The Court finds that Petitioner is unable to pay the full $455 appellate filing fee, and thus grants his Motion to Proceed on Appeal in forma pauperis. The Court also finds, in its discretion, that Petitioner is able to pay a portion of the filing fee, and adopts the formula for calculating a partial payment found in 28 U.S.C. § 1915(b). Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir. 1999) (approving district court's discretionary use of § 1915(b) partial payment calculation in § 2255 cases). This formula provides that a petitioner must pay 20% of either his average balance or average monthly deposits, whichever is greater. The greater of these two figures is $44.38, which is his average monthly deposit, and so 20% of that, $8.88, is the partial filing fee the Court will assess.
IT IS THEREFORE ORDERED that Petitioner's Motion to Proceed on Appeal in forma pauperis (Doc. 13) is GRANTED. Petitioner is ASSESSED a partial filing fee of $8.88.
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JOE BILLY McDADE
United States Senior District Judge