Gardner v. State of Nebraska

Filing 27

MEMORANDUM AND ORDER - The court finds Petitioner did not file a timely notice of appeal. The court will not act on Petitioners notice of appeal. (Filing No. 24 ). The clerk of court is directed to send a copy of Petitioners notice of appeal and a copy of this Memorandum and Order to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN GARDNER,
Petitioner,

8:17CV255

vs.
STATE OF NEBRASKA,

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on the Notice of Appeal (filing no. 24) filed
by Petitioner Justin Gardner on May 7, 2018. Also before the court are two
memorandums from the Clerk of the Court requesting a ruling as to the timeliness
of Petitioner’s notice of appeal and Petitioner’s authorization to proceed in forma
pauperis on appeal. (Filing No. 25; Filing No. 26.)
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), the notice of
appeal in a civil case must be filed within 30 days of the entry of judgment. “A
timely notice of appeal is both mandatory and jurisdictional.” Burgs v. Johnson
Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). Moreover, an untimely notice of
appeal cannot serve as a motion for extension of time to file an appeal. Id. A
district court may extend the time to file a notice of appeal if a party moves for an
extension of time and shows excusable neglect or good cause, provided that the
party moves for the extension of time within 30 days of the expiration of the 30day period set out in Rule 4(a)(1)(A). Fed. R. App. P. 4(a)(5)(A). In addition, if a
party files one of the post-judgment motions listed in Rule (a)(4)(A), the time to
file the appeal runs from the entry of the order disposing of the motion. Fed. R.
App. P. 4(a)(4)(A).
Here, the court entered a final judgment dismissing the Petition for Writ of
Habeas Corpus on March 1, 2018. (Filing Nos. 21 and 22.) Therefore, the final

day for filing a timely notice of appeal was April 2, 2018. Petitioner’s Notice of
Appeal is dated May 2, 2018, and stamped as filed on May 7, 2018. (Filing No.
25.) Because the Notice of Appeal is dated May 2, 2018, it could not have been
deposited in the prison’s mail system within the prescribed time. See Fed. R. App.
P. 4(c)(1) (stating prisoner’s notice of appeal is timely filed if deposited in the
institution’s internal mail system on or before the last day for filing). In addition,
Petitioner did not file any post-judgment motions that would extend the time to file
a notice of appeal. See Fed. R. App. P. 4(a)(4)(A). Finally, Petitioner did not move
to extend the time to file a notice of appeal in this matter. See Fed. R. App. P.
4(a)(5)(A)(ii). Accordingly, the court finds that Petitioner did not file a timely
notice of appeal.
Additionally, Petitioner has failed to include the $505.00 appellate filing and
docket fees. Petitioner has not previously been granted leave to proceed in forma
pauperis in the district court in connection with his § 2254 petition. Thus, Fed. R.
App. P. 24(a)(3), which continues in forma pauperis status on appeal without
further authorization, does not apply. “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). The court hereby certifies that the appeal filed by Petitioner in
this case is frivolous and not taken in good faith for the reason that his habeas
petition was dismissed without prejudice for failure to file an amended petition as
directed by the court and his appeal is untimely. Since the appeal is not taken in
good faith, the petitioner cannot file an appeal in forma pauperis. See Fed. R. App.
P. 24(a)(3) and 28 U.S.C. § 1915(a)(3).
IT IS THEREFORE ORDERED that:
1.

The court finds Petitioner did not file a timely notice of appeal.

2.

The court will not act on Petitioner’s notice of appeal. (Filing No. 24.)

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3.
The clerk of court is directed to send a copy of Petitioner’s notice of
appeal and a copy of this Memorandum and Order to the Eighth Circuit Court of
Appeals.
Dated this 8th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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