Gardner v. State of Nebraska

Filing 36

MEMORANDUM AND ORDER - Petitioner's motion for relief in all of the above cases (Filing 55, Case No. 8:17CV255; Filing 35 , Case No. 8:17CV389; Filing 47, Case No. 8:17CV390; Filing 49, Case No. 8:18CV241; Filing 30, Case No. 8:18CV557) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

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

8:17CV255

vs.
MEMORANDUM AND ORDER
STATE OF NEBRASKA,
Respondent.

JUSTIN GARDNER,
8:17CV389
Petitioner,
vs.

MEMORANDUM AND ORDER

STATE OF NEBRASKA,
Respondent.

JUSTIN GARDNER,
8:17CV390
Petitioner,
vs.

MEMORANDUM AND ORDER

STATE OF NEBRASKA,
Respondent.

JUSTIN GARDNER,
8:18CV241
Petitioner,
vs.

MEMORANDUM AND ORDER

STATE OF NEBRASKA,
Respondent.

JUSTIN GARDNER,
8:18CV557
Petitioner,
vs.

MEMORANDUM AND ORDER

STATE OF NEBRASKA,
Respondent.

The above closed habeas cases are before the court on correspondence from
Petitioner Justin Gardner filed on March 23, 2022, which the court construes as a
motion. Petitioner states he has been unable to file Notices of Appeal in these cases
regarding “some proceed In Forma Pauperis (I.F.P.) orders [that were] denied . . .
due to out of the Petitioner [sic] control by the Nebraska Department of
Correctional Services” and asks the court to grant him “some relief due to this
situation that is out of the petitioner [sic] control.”
On February 25, 2022, the court denied Petitioner leave to proceed IFP on
appeal in all of the above cases. All of these cases are currently pending on appeal
in the Eighth Circuit Court of Appeals and Petitioner has been ordered to either
pay the appellate filing fee or file a motion to proceed IFP in the Eighth Circuit.
Because these cases are on appeal, the court does not have jurisdiction to grant
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Petitioner any relief, nor would the court grant Petitioner any relief as Petitioner
cannot appeal this court’s denial of leave to proceed IFP on appeal. Such orders are
not appealable, and any purported appeal of those orders would be frivolous. See
Fed. R. App. P. 24(a)(5) (“A party may file a motion to proceed on appeal in forma
pauperis in the court of appeals within 30 days after service of the notice [of the
district court’s denial].”). Accordingly,
IT IS ORDERED that: Petitioner’s motion for relief in all of the above cases
(Filing 55, Case No. 8:17CV255; Filing 35, Case No. 8:17CV389; Filing 47, Case
No. 8:17CV390; Filing 49, Case No. 8:18CV241; Filing 30, Case No. 8:18CV557)
is denied.
Dated this 31st day of March, 2022.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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