Gardner v. State of Nebraska

Filing 31

MEMORANDUM AND ORDER - 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. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)

8:17-cv-00389-RGK-PRSE Doc # 31 Filed: 02/25/22 Page 1 of 2 - Page ID # 88

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

8:17CV389

vs.
MEMORANDUM AND ORDER
STATE OF NEBRASKA,
Respondent.

This matter is before the court on the Notice of Appeal (filing 28) 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 29). Petitioner seeks to appeal the court’s Order (filing 4) and
Judgment (filing 5) entered on November 29, 2017, dismissing Petitioner’s habeas
petition without prejudice for failing to pay the filing fee or submit a motion to
proceed in forma pauperis, and the Judgment (filing 26) and Mandate (filing 27)
issued by the Eighth Circuit Court of Appeals on January 28, 2022, denying
Petitioner’s motion for authorization to file a successive habeas application.
A litigant seeking to appeal a judgment must either pay the required filing
fees, see Fed. R. App. P. 3(e), or proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a). “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 because (1) Petitioner has already prosecuted an appeal to the
Eighth Circuit Court of Appeals in which the Court dismissed the appeal for lack
of jurisdiction on July 31, 2018, (filing 24; see also filing 25), (2) this matter has
been closed for over 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). Since

8:17-cv-00389-RGK-PRSE Doc # 31 Filed: 02/25/22 Page 2 of 2 - Page ID # 89

the appeal is not taken in good faith, 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: 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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