Green 578098 v. Burgess

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

MICHAEL GREEN,

Petitioner, Case No. 1:21-cv-652

v. Honorable Robert J. Jonker

MICHAEL BURGESS,

Respondent. ____________________________/ ORDER DENYING IN FORMA PAUPERIS STATUS Petitioner has filed a notice of appeal from a decision by the district court denying habeas relief. Federal Rule of Appellate Procedure 3(e) provides that the appellant must pay all required fees at the time a notice of appeal is filed with the district court. Under Sixth Circuit Internal Operating Procedure 3, the docketing fee for a case on appeal is $500.00. In addition, under 28 U.S.C. § 1917, a $5.00 filing fee must be paid to the district court. Petitioner has failed to pay the fees; instead, he has moved to proceed on appeal in forma pauperis (ECF No. 11). The Sixth Circuit has determined that “a prisoner who is unable to pay the required filing fees may seek leave to file an appeal in a Section 2254 or Section 2255 action pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure.” Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). But, under Rule 24(a)(3) and 28 U.S.C. § 1915(a)(3), where the Court has certified that an appeal would not be taken in good faith, Petitioner is not authorized to proceed on appeal in forma pauperis. The Court has already certified that an appeal would not be taken in good faith. (ECF No. 6.) Therefore, if Petitioner wishes to proceed with his appeal, Petitioner is informed that within 28 days from the date of this notice he must pay the $505.00 appellate fee to the Clerk of this Court within 28 days of this order. See 28 U.S.C. §§ 1913, 1917; 6 Cir. I.O.P. 3; Court of Appeals Miscellaneous Fee Schedule § 1 (Dec. 1, 2013). Alternatively, Petitioner may file a motion for leave to proceed in forma pauperis in the Court of Appeals pursuant to the requirements set forth in Fed. R. App. P. 24(a)(5). Petitioner is also notified that if he fails to pay the filing fee

or to file the required documents, the Court of Appeals may dismiss Petitioner’s appeal for want of prosecution. Accordingly, IT IS ORDERED that Petitioner is DENIED leave to proceed on appeal in forma pauperis.

Dated: September 21, 2021 /s/ Ray Kent Ray Kent United States Magistrate Judge

SEND REMITTANCES TO:

Clerk, U.S. District Court 399 Federal Bldg. 110 Michigan St., N.W. Grand Rapids, MI 49503

All checks or other forms of payment shall be payable to “Clerk, U.S. District Court” and must indicate the case number in which the payment is made.