United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
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.
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.
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.
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].
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.
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
Partial Appellate Filing Fees in Section 2254 Cases
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
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
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).
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