Eviglo v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JACQUES EVIGLO,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:21-CV-04069-KES
ORDER DENYING MOVANT’S
MOTION TO APPEAL WITHOUT
PREPAYMENT OF FEES
Movant, Jacques Eviglo, filed a motion under 28 U.S.C. ' 2255 to vacate,
set aside, or correct his sentence. Docket 1. Judgment was entered against
Eviglo, and he filed a notice of appeal. Dockets 25, 26. The court denied Eviglo
a certificate of appealability. Docket 24 at 6-7. Eviglo now files a motion to
appeal without prepayment of fees and included a prisoner trust account
report. Dockets 27, 28.
The Eighth Circuit historically has looked to district courts to rule on in
forma pauperis motions for appeal and has held that the filing-fee provisions of
the PLRA do not apply to habeas corpus actions. Malave v. Hedrick, 271 F.3d
1139, 1140 (8th Cir. 2001). To determine whether a habeas petitioner qualifies
for in forma pauperis status, the court need only assess (1) whether the
petitioner can afford to pay the full filing fee, and (2) whether the petitioner’s
appeal is taken in “good faith.” 28 U.S. C. § 1915(a)(1), (3).
Eviglo’s prisoner trust account report indicates that he has average
monthly deposits to his prisoner trust account of $1,281.77 and an average
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monthly balance of $49.07. Docket 28 at 1. Because Eviglo appears to have
sufficient monthly deposits to pay the $505 appellate filing fee, his motion to
appeal without prepayment of fees (Docket 27) is denied. Eviglo must pay the
filing fee of $505 by March 2, 2022.
IT IS ORDERED:
1. That Eviglo’s motion to appeal without prepayment of fees (Docket 27)
is denied.
2. Eviglo shall pay the $505 appellate filing fee to the Clerk of the United
States District Court for the District of South Dakota. Eviglo must pay
the fee by March 2, 2022.
Dated January 31, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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