Gardner v. State of Nebraska

Filing 51

MEMORANDUM AND ORDER - Petitioner may not proceed on appeal in forma pauperis. This matter is closed, and Petitioner should refrain from filing any further frivolous appeals. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

8:17-cv-00255-RGK-PRSE Doc # 51 Filed: 02/25/22 Page 1 of 2 - Page ID # 324

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

8:17CV255

vs.
MEMORANDUM AND ORDER
STATE OF NEBRASKA,
Respondent.

This matter is before the court on the Notice of Appeal (filings 48 & 50)
filed by Petitioner on February 16, 2022, and a memorandum from the Clerk of the
Court requesting a ruling as to Petitioner’s authorization to proceed in forma
pauperis on appeal (filing 49). Petitioner seeks to appeal the court’s Memorandum
and Order (filing 21) and Judgment (filing 22) entered on March 1, 2018,
dismissing Petitioner’s habeas petition without prejudice for failure to amend his
petition as ordered by the court, and the Judgment (filing 46) and Mandate (filing
47) issued by the Eighth Circuit Court of Appeals on January 28, 2022, denying
Petitioner’s motion for authorization to file a successive habeas application.
This is the third appeal Petitioner has filed in this case. Petitioner’s first
appeal of the court’s March 1, 2018 judgment was dismissed by the Eighth Circuit
Court of Appeals for lack of jurisdiction on June 6, 2018. (See Filing 31.)
Petitioner then filed a second frivolous appeal on November 20, 2018, in which he
again sought to challenge the March 1, 2018 dismissal of his habeas petition.
(Filing 34.) That appeal was likewise unsuccessful. (See Filing 43.) Now,
Petitioner is back and trying to challenge this court’s judgment again as well as the
Eighth Circuit’s denial of his motion for authorization to file a successive habeas
application.

8:17-cv-00255-RGK-PRSE Doc # 51 Filed: 02/25/22 Page 2 of 2 - Page ID # 325

Petitioner’s appeal is clearly frivolous and not taken in good faith because
(1) he has already prosecuted an appeal of this court’s judgment dismissing his
habeas petition, (2) this matter has been closed for almost four years and his appeal
is grossly untimely, and (3) the Eighth Circuit Court of Appeals’ denial of his
motion for authorization to file a successive habeas application is not appealable.
See 28 U.S.C. § 2244(3)(E). Thus, Petitioner may not proceed in forma pauperis on
appeal. See Fed. R. App. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3).
IT IS THEREFORE ORDERED that: Petitioner may not proceed on appeal
in forma pauperis. This matter is closed, and Petitioner should refrain from filing
any further frivolous appeals.
Dated this 25th day of February, 2022.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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