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 sentenced 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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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 persuades 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 follows, 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
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 subsections 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 judgments, 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
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 proceeding, civil or criminal, or appeal therein”. Section 1915(a)(3)

speaks to this broader category, not just to “civil actions.” 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.
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 proceedings, 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 propriety 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 frivolousness. 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 nonfrivolous and still flunk the standard established by

§2253(c)(2), which conditions a certificate of appealability on “a substantial showing of the denial of a constitutional right.”

Thomas has filed a document captioned “Petition

for Leave to File and Proceed on Appeal In Forma
6 No. 13-1136

Pauperis”, but it does not attempt to demonstrate that

the appeal is non-frivolous, let alone that a constitutional 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