Sengenberger v. Towsen ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN DAVID SENGENBERGER,  No. 04-35664
Petitioner-Appellant,
D.C. No.
v.
RALPH TOWNSEND, President, Idaho  CV-01-00578-MHW
District of Idaho,
Board of Corrections, State of Boise
Idaho,
ORDER
Respondent-Appellee.

Filed December 12, 2006
Before: Michael Daly Hawkins, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
ORDER
The State of Idaho, as the prevailing party, has filed a bill
of costs for $301. Sean Sengenberger objects to the cost bill,
primarily on the ground of his indigency.
We previously have noted that “courts should consider the
financial resources of the plaintiff and the amount of costs in
civil rights cases.” Stanley v. Univ. of So. Calif., 178 F.3d
1069, 1079 (9th Cir. 1999). “Indigency is a factor that the dis-
trict court may properly consider in deciding whether to
award costs.” Id. This same rationale applies with equal force
to habeas corpus petitioners. There is, however, a countervail-
ing consideration to be taken into account. The Antiterrorism
and Effective Death Penalty Act and the Prison Litigation
Reform Act were intended, in part, to ameliorate some of the
costs to the states in defending against the tide of habeas peti-
tions. We are concerned here, however, with costs on appeal.
19349
19350 SENGENBERGER v. TOWNSEND
In habeas cases, the petitioner cannot take an appeal without
obtaining a certificate of appealability (COA), which requires
that such a certification may issue only upon a “substantial
showing of the denial of the constitutional right” for each
issue to be appealed. 28 U.S.C. § 2253(c)(2),(3). Thus,
because there is a mechanism in place (the COA requirement)
to monitor and preclude the taking of frivolous appeals, the
award of costs is not required to discourage unmeritorious
appeals.
With these principles in mind, we turn to the circumstances
of this case, as we do not suggest that there is an absolute pro-
hibition on costs in all circumstances. Sengenberger, the peti-
tioner here, is indigent. The appeal presented substantial
constitutional questions. To award costs against Sengenber-
ger, given his financial status, would undermine the taking of
meritorious appeals. The State of Idaho’s bill of costs is
denied.
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