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Greer v. Smith

United States District Court, E.D. Kentucky, Central Division, Lexington

May 9, 2019

SHARON DALE GREER, Petitioner,
v.
AARON SMITH, WARDEN, KENTUCKY STATE REFORMATORY, Respondent.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge.

         The consideration before this Court is whether a habeas petitioner who has means to pay some, but not all, of the $505 appellate court filing fee may be required to make a partial payment of the fee before taking an appeal. This question in the Section 2254 context appears to be a matter of first impression in this Court.

         Recently, the United States Court of Appeals for the Sixth Circuit affirmed the practice of requiring indigent individuals to pay partial appellate filing fees in cases filed under 28 U.S.C. § 2241. See Samarripa v. Ormond, 917 F.3d 515 (6th Cir. 2019). Even so, the Samarripa decision appears to have left the question of whether partial prepayment may be required of indigent individuals in the Section 2254 and Section 2255 context to another day.

         After reviewing the history of requiring partial payment for habeas appeals filed under Section 2241 in this Court and considering the reasoning in the Sixth Circuit's decision in Samarripa, this Court concludes that indigent habeas petitioners may be required to pay part of the appellate filing fee in appeals of cases filed pursuant to 28 U.S.C. § 2254. As such, petitioner Sharon Dale Greer's motion for leave to proceed in forma pauperis on appeal [DE 29] is GRANTED IN PART and DENIED IN PART. Greer must pay $37.95 to the Clerk of the Court in full satisfaction of the appellate filing fee within twenty-eight (28) days from the entry of this memorandum opinion and order.

         I. Procedural History

         Greer filed this action pursuant to 28 U.S.C. § 2254. Greer paid the $5.00 filing fee in this Court. On April 4, 2019, this Court denied Greer's motion for habeas relief and no certificate of appealability was issued. [DE 26; DE 27].

         Subsequently, Greer filed a timely notice of appeal. [DE 28]. Simultaneously, Greer filed a motion for leave to appeal in forma pauperis. [DE 29]. A certification of the funds deposited into Greer's institutional account was attached as an exhibit to his motion to appeal in forma pauperis. [DE 29-1]. Currently, the motion for leave to appeal in forma pauperis is ripe for review.

         II. Analysis

         Consideration of whether Greer may be required to make a partial payment of the appellate filing fees requires the Court to consider two interrelated questions. First, may the Court impose a partial filing fee on indigent petitioners in cases filed under 28 U.S.C. § 2254? Second, if so, what is the proper metric or standard for calculating the appropriate partial filing fee?

         A. Partial Appellate Filing Fees in Section 2254 Cases

         The issue here, as in the Samarripa case, is whether the law allows partial prepayment of appellate filing fees or requires an all-or-nothing-at-all approach. Federal Rule of Appellate Procedure 24(a)(1) requires a party who desires to appeal in forma pauperis to file a motion with the district court. Still, the rule is silent on whether a district court has discretion to require partial payment of fees for indigent petitioners.

         The text of 28 U.S.C. § 1915(a)(1) says: “[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor” after reviewing the person's assets and claim. (Emphasis added). Still, the text of the statute does not prohibit courts from requiring indigent petitioners to pay part of the appellate filing fee because a court that excuses some fees still allows a filing without prepayment of fees. Samarripa, 917 F.3d at 517.

         Analogy to the Section 2241 context is instructive. In habeas cases brought under 28 U.S.C. § 2241, the Eastern District of Kentucky established a practice of requiring partial prepayment of appellate filing fees for indigent petitioners. See, e.g., Cole v. Ormond, No. 6:17-cv-150-GFVT (E.D. Ky. Dec. 13, 2017) (At docket entry 12); Hernandez v. Ormond, No. 6:17-cv-081-DLB (E.D. Ky. Nov. 16, 2017) (At docket entry 21); Perez v. Ormond, No. 6:17-cv-072-KKC (E.D. Ky. Nov. 3, 2017) (At docket entry 28).

         This practice of imposing partial appellate filing fees in the Section 2241 context was challenged and affirmed on appeal by the Sixth Circuit. Samarripa, 917 F.3d at 517-20. In so holding, the Sixth Circuit considered the text of Section 1915(a), the pre-1996 history of courts requiring parties to ...


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