The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
In response to this Court's attached July 31, 2007 Memorandum Order and Statement, pro se litigant Michael Black ("Black") has filed an In Forma Pauperis Declaration and a printout covering transactions in his trust fund account at FMC Devins ("Devins"), where he is now in custody.*fn1 That printout shows that the average deposits to the trust fund account during the relevant six-month period (see 28 U.S.C. §1915(a)(2)*fn2 ) came to $105, 20% of which (see Section 1915(b)(1)) is $21.
As the July 31 Order and Statement reflects (as did this Court's earlier June 19 and July 9, 2007 orders), this Court's view is that Black is not entitled to a certificate of appealability because he has presented no non-frivolous issue for consideration. In the case of a civil appeal by a nonprisoner, our Court of Appeals' doctrine is that in forma pauperis status should be denied unless an applicant not only makes the appropriate showing of poverty but also demonstrates the existence of a non-frivolous ground for appeal.
Although this Court views Black's present appeal as posing an equivalent situation, it is uncertain whether the Court of Appeals would treat Black's current appeal in the same way (in which event the provisions of Section 1915 might not come into play at all) or whether Section 1915 is indeed applicable (in which event this Court would be called upon to enter an appropriate order dealing with the required initial payment of $21 on account of fees and providing for future installments). To that end this memorandum order has been transmitted to the Court of Appeals so that it may rule on which of those courses of action is appropriate here.
MEMORANDUM ORDER AND STATEMENT
Michael Black ("Black"), acting pro se, has filed a notice of appeal from this Court's orders of June 19 and July 9, 2007*fn3 that rejected his most recent effort to attack the sentence that had been imposed on him and that he is now serving--this time via a petition for a writ of audita querela. Although it is unclear whether such an effort requires compliance with the certificate of appealability ("COA") provisions that apply to appeals from the denial of motions under 28 U.S.C. §2255,*fn4 this Court will address that subject out of what may be an abundance of caution.
But before it does so, this Court turns to Black's required compliance with Section 1915. Although an effort to obtain a writ of audita querela regarding a federal sentence may perhaps, like a Section 2255 motion, be treated as a continuing part of the underlying criminal case so that no filing fee is required, an appeal carries its own independent filing fee requirement, thus obligating Black to pay the $455 aggregate of such fees. Hence Black is ordered either to pay the $455 in fees or, alternatively, to submit pursuant to Section 1915:
1. a completed In Forma Pauperis Application (copies of the form for that purpose are being sent to him together with a copy of this order) and
2. a printout covering all transactions in his prisoner trust fund account for the six-month period preceding his notice of appeal.
If Black pursues the latter course, this Court will promptly determine his eligibility for in forma pauperis status and, if he is so eligible, the initial partial payment required pursuant to Section 1915(b)(1).
As for Black's possible need for a COA, this Court's June 19 and July 9 orders explain the lack of merit in Black's most recent attempt to challenge his conviction and sentence. It therefore declines to issue such a COA.
If a COA is indeed required before Black may proceed with his appeal, Black is of course entitled to apply to the Court of Appeals for that COA pursuant to Section 2253(c)(1). In the meantime, however, he is required to comply with the Section 1915 requirements set out at the outset of this order on or before August 20, 2007 (unless in that instance he advises this Court that he has requested a printout of his trust fund account transactions but its production has been delayed). If he fails to conform to the provisions in this paragraph, this Court would expect to recommend to our ...