Kelly S. Thomas v. DUSHAN ZATECKY, Superintendent, Pendleton Correctional Facility

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1136
KELLY S. THOMAS,
Petitioner-Appellant,
v.
DUSHAN ZATECKY, Superintendent,
Pendleton Correctional Facility,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-807-SEB-DML—Sarah Evans Barker, Judge.
SUBMITTED FEBRUARY 19, 2013—DECIDED MARCH 13, 2013
Before EASTERBROOK, Chief Judge, and BAUER and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. Kelly Thomas was sen-
tenced 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

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2 No. 13-1136
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 per-
suades 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. Many appellate courts—including this
one—have held that the Prison Litigation Reform Act of
1996 (PLRA), which substantially revised §1915 and
other sections, does not apply to collateral proceedings
under 28 U.S.C. §§ 2241, 2254, or 2255. See Martin v.
United States, 96 F.3d 853, 855–56 (7th Cir. 1996); Walker
v. O’Brien, 216 F.3d 626, 634 (7th Cir. 2000). It fol-
lows, Thomas contends, that payment of appellate fees
is unnecessary, making the district court’s certification
irrelevant.
This argument rests on the mistaken premise that
appellate fees have their genesis in the PLRA. They do not.
They are authorized by 28 U.S.C. §1913, which long
predates the PLRA. Section 1913, which was enacted in
1891, provides: “The fees and costs to be charged and
collected in each court of appeals shall be prescribed
from time to time by the Judicial Conference of the
United States. Such fees and costs shall be reasonable
and uniform in all the circuits.” The schedule currently in

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No. 13-1136 3
force sets filing and docketing fees aggregating $455 for
all civil suits, including proceedings under §§ 2241, 2254,
and 2255. Every appellant owes these fees and must
prepay them or obtain permission to litigate without
prepayment—that is to say, in forma pauperis. A litigant
who proceeds in forma pauperis still owes the fees. If he
wins, the fees are shifted to the adversary as part of costs;
if he loses, the fees are payable like any other debt.
Section 1915, like §1913, predates the PLRA. If we were
to deem all of §1915 inapplicable to collateral attacks
on criminal judgments, just because several of its subsec-
tions were rewritten by the PLRA, then there would be
no basis for excusing prepayment of the fees and
prisoners would be worse off. For it is §1915(a)(1) that
supplies judges’ authority to allow litigation to proceed
without prepayment of the fees required by §1913 and
other statutes, such as 28 U.S.C. §§ 1912, 1914, 1917,
1920, and 1921. When saying in Martin that the PLRA
does not apply to collateral attacks on criminal judg-
ments, we meant that the features added to §1915 by
the PLRA do not apply. There are two of note.
First, §1915(a)(2) and (b) require courts to assess partial
filing fees payable from prison trust accounts, and to
ensure that the entire fees eventually are collected from
those trust accounts. (The fee for filing a collateral attack
in district court is only $5, which Thomas paid. This
appeal does not present the question whether a district
court has discretion to order collection of the $5 fee, or
a portion of the appellate fees, in installments from a
prison trust account. See Longbehn v. United States, 169

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4 No. 13-1136
F.3d 1082, 1083 (7th Cir. 1999) (“under §1915 as it stood
before the PLRA, district judges often concluded that
some litigants were able to pay part, though not all, of
the filing fee”).)
Second, §1915(g) provides that a person who has
brought three or more frivolous suits or appeals loses the
privilege of litigating in forma pauperis unless he can
establish that he is in physical danger. Martin observed
that §1915(g) is a mismatch for collateral proceedings.
Continued imprisonment differs from physical hazard.
Nothing in the text or background of the PLRA suggests
that it is designed to prevent prisoners who have filed
frivolous civil suits for damages from pursuing serious
challenges to the judgments holding them in confinement.
Walker was a bit more precise than Martin. What
Walker holds (among other things) is that a collateral
attack under §2241 or §2254 is not a “civil action” for
the purpose of §1915. Some subsections of that statute
establish special rules for “civil actions.” Sections
1915(a)(2), (b), and (g) deal with “civil actions.” But
§1915 as a whole covers many additional categories
of litigation. Section 1915(a)(1) begins by announcing
that the statute—and hence the possibility of litigating
in forma pauperis—applies to “any suit, action or proceed-
ing, civil or criminal, or appeal therein”. Section 1915(a)(3)
speaks to this broader category, not just to “civil ac-
tions.” When a district court grants permission under
§1915(a)(1) to litigate in forma pauperis, that permission
carries over to the appeal unless the district court
itself revokes the permission after deciding the merits.

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No. 13-1136 5
Section 1915(a)(3) says: “An appeal may not be taken in
forma pauperis if the trial court certifies in writing that it
is not taken in good faith.” We do not see any reason
why that provision should not apply to collateral pro-
ceedings, in common with all of the other litigation
to which §1915(a)(1) refers.
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 pro-
priety 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 friv-
olousness. 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 non-
frivolous and still flunk the standard established by
§2253(c)(2), which conditions a certificate of appeal-
ability on “a substantial showing of the denial of a con-
stitutional right.”
Thomas has filed a document captioned “Petition
for Leave to File and Proceed on Appeal In Forma

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6 No. 13-1136
Pauperis”, but it does not attempt to demonstrate that
the appeal is non-frivolous, let alone that a constitu-
tional 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.
3-13-13

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