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Maxie v. Superintendent

United States District Court, N.D. Indiana

May 1, 2014

MICHAEL A. MAXIE, Petitioner,
v.
SUPERINTENDENT, Respondent.

OPINION AND ORDER

RESA L. SPRINGMANN, District Judge.

Michael A. Maxie, a prisoner proceeding pro se, has filed several documents in this closed case. (ECF Nos. 18, 19, 21, 22, 23, 24, 25, 26.) The Court dismissed Maxie's habeas petition without prejudice on March 20, 2013, after he failed to pay the filing fee as ordered by the Court. (ECF No. 16.) On April 21, 2013, he filed several documents evincing a desire to appeal the court's judgment, including a motion for leave to appeal in forma pauperis, a docketing statement, and a motion for release pending appeal. ( See ECF Nos. 22, 24, 25.) As a procedural matter, Maxie did not file a formal notice of appeal. However, given his pro se status, the Court will construe his docketing statement, which contains all the necessary information, as his notice of appeal. See Smith v. Grams, 565 F.3d 1037, 1041-43 (7th Cir. 2009); Wells v. Ryker, 591 F.3d 562, 564-65 (7th Cir. 2010). Accordingly, the Clerk will be directed to separately docket the docketing statement as a notice of appeal, and to process it accordingly.

MOTION FOR RECONSIDERATION

Maxie also filed a document which the court construes as a request for reconsideration of the final judgment. (ECF No 21.) Ordinarily, a notice of appeal divests the court of jurisdiction over the case. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). However, if a party files a timely motion for relief from judgment pursuant to Federal Rule of Civil Procedure 59 or 60, the time for appealing does not begin to run until the court disposes of that motion. Fed. R. App. P. 4(a)(4)(A). When a party files a notice of appeal after the judgment but before the court rules on the motion, the notice of appeal becomes effective when the order disposing of the motion is entered. Fed. R. App. P. 4(a)(4)(B). Here, Maxie tendered his motion to reconsider for mailing within 28 days of the judgment, and before he filed his appeal documents. ( See ECF Nos. 17, 21.) Accordingly, the Court has jurisdiction to entertain the motion. See Fed. R. App. P. 4(a)(4)(B)(i).

Turning to the merits, the Court finds no basis to alter or otherwise disturb the judgment. Maxie appears to argue that the Court should have granted him in forma pauperis status because he does not have sufficient funds to pay the $5.00 filing fee.[1] The record demonstrates otherwise. In his original motion for leave to proceed in forma pauperis, Maxie attached inmate trust fund ledgers showing that his average monthly deposits for the period May 2013 to November 2013 were $43.26. (ECF No. 5.) In his present filing, he submits ledgers from a slightly different period, and they reflect that his average monthly deposits for the period June 2013 to December 2013 were $27.59. (ECF No. 21 at 7-9.) In either case, these filings reflect that Maxie had sufficient funds available to pay the $5.00 filing fee.

Maxie asserts that he no longer has sufficient funds in his account, but a review of his ledgers indicates that he spent money on phone calls, copying costs, and commissary purchases during this period. ( See ECF Nos. 5, 21.) Furthermore, court records reflect that he filed five civil rights lawsuits in this court between September 2013 and January 2014.[2] See Maxie v. Levenhagen, et al., No. 2:14-CV-008 (N.D. Ind. filed Jan. 9, 2014); Maxie v. Wilson, et al., No. 3:13-CV-1277 (N.D. Ind. filed Nov. 29, 2013); Maxie v. Levenhagen, et al., No. 3:13-CV-1279 (N.D. Ind. filed Nov. 29, 2013); Maxie v. Bruemmer, et al., No. 3:13-CV-1280 (N.D. Ind. filed Nov. 29, 2013); Maxie v. Wilson, et al., No. 3:13-CV-1021 (N.D. Ind. filed Sept. 20, 2013.) He made various payments of the initial partial filing fees assessed in those cases (totaling approximately $40.22) between February 2014 and April 2014. See Maxie, No. 3:13-CV-1277 (payment of $6.40 on Apr. 7, 2014); Maxie No. 3:13-CV-1279 (payment of $8.14 on Feb. 24, 2014); Maxie, No. 3:13-CV-1280 (payment of $8.14 on Feb. 24, 2014); Maxie, No. 3:13-CV-1021 (payment of $2.94 on Mar. 24, 2014, and payment of $6.40 on Apr. 7, 2014).

Furthermore, Maxie opted to refile his petition under a new cause number on April 24, 2014, and he tendered payment of the $5.00 fee along with the petition. See Maxie v. Superintendent, No. 3:14-CV-1444 (N.D. Ind. filed Apr. 24, 2014). For these reasons, the Court concludes that Maxie had sufficient funds available to pay the $5.00 filing fee while this case was pending. The fact that he chose to deplete his account with other expenditures does not mean this Court's ruling was in error. Accordingly, the Motion for Reconsideration will be denied. Maxie also filed an amended habeas petition (ECF No. 18) and a motion seeking immediate judgment in his favor (ECF No. 19), but the Court has no authority to act on these filings, since the case has been closed and is presently on appeal. Griggs, 459 U.S. at 58.

MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

Maxie has filed various motions pertaining to his appeal. He first moves for leave to proceed in forma pauperis on appeal. (ECF No. 22.) "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). In identifying his issues on appeal, Maxie asserts the merits of his claims raised in his habeas petition. (ECF No. 23 at 1.) However, the Court did not reach the merits of Maxie's petition. Instead, his Petition was dismissed without prejudice for failure to pay the filing fee. He does not present any arguable basis for overturning the Court's resolution of the Petition. As outlined above, Maxie's filings in this case demonstrate that he was capable of paying the $5.00 filing fee. If he had done so, he could have obtained review of his case on the merits. Indeed, Maxie has now refiled his Petition, and tendered payment of the $5.00 filing fee. Maxie, No. 3:14-CV-1444. In light of the record, the Court declines to permit him to proceed in forma pauperis on appeal. See Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000) (appeal is not taken in good faith where "no reasonable person could suppose that the appeal has some merit.").

As a related matter, because Maxie is appealing the Court's judgment, the Court must consider whether to grant him a certificate of appealability. 28 U.S.C. § 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. To obtain a certificate of appealability, the petitioner must make a substantial showing of the denial of a constitutional right by establishing "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the petition is resolved on procedural grounds, to obtain a certificate of appealability the petitioner must establish two components: that reasonable jurists would find it debatable whether the court was correct in its procedural ruling, and that the petition states a valid claim for denial of a constitutional right. Id. Each is a threshold inquiry, and therefore, the court need only address one prong if it is dispositive. Id. For the reasons fully explained above, Maxie's Petition was properly dismissed for failure to pay the filing fee. The Court finds no basis to conclude that reasonable jurists would debate this outcome or find a reason to encourage Maxie to proceed further. Accordingly, the Court declines to issue him a certificate of appealability.

MOTION FOR RELEASE FROM CUSTODY

Finally, Maxie filed a motion requesting that the court release him "on a personal recognizance bond" while his appeal is pending.[3] (ECF No. 24.) In habeas cases, federal district judges have "inherent power to admit applicants to bail pending the decision of their cases, " but it is a power to be exercised "very sparingly." Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985). The U.S. Court of Appeals for the Seventh Circuit explained:

The reasons for parsimonious exercise of the power should be obvious. A defendant whose conviction has been affirmed on appeal (or who waived his right of appeal, as by pleading guilty, or by foregoing appeal after being convicted following a trial) is unlikely to have been convicted unjustly; hence the case for bail pending resolution of his postconviction proceeding is even weaker than the case for bail pending appeal. And the interest in the finality of criminal proceedings is poorly served by deferring execution of sentence till long after the defendant has been convicted.

Id. Thus, in order to obtain release pending a decision on a habeas petition, the petitioner must show "not only a substantial federal claim that presents not merely a clear case on the law, but a clear, and readily evident, case on the facts." ...


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