Gardner v. State of Nebraska

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN GARDNER,
Petitioner,
vs.
STATE OF NEBRASKA,
Respondent.
8:17CV255
MEMORANDUM AND ORDER
This closed habeas case is before the Court on Petitioner Justin Gardner’s
(“Gardner”) “Motion to Consolidat[e] Federal Civil U.S. District Court Cases Together” (the
“Motion to Consolidate”), Filing No. 68, and motion requesting “Permission to Grant
CERTIFICATE OF APPEALABILITY C.O.A.” (the “Motion for COA”), Filing No. 70. Upon
review, the Court will deny both motions.
I. MOTION TO CONSOLIDATE
In his Motion to Consolidate, Gardner asks to consolidate various civil cases he
has filed together pursuant to “Rule 42. Consolidation; separate trials,” Filing No. 68,
which the Court understands to refer to Federal Rule of Civil Procedure 42, which allows
federal courts to consolidate actions where “actions before the court involve a common
question of law or fact,” Fed. R. Civ. P. 42(a). Specifically, Gardner asks that “8:17cv255[,]
8:18cv241[,] [and] 8:22cv119” be consolidated, “8:17cv390[,] 8:18cv115[,] [and]
8:22cv121” be consolidated, and “8:17cv389[,] 8:18cv46[,] 4:19cv3005[,] [and]
8:22cv120” be consolidated. Filing No. 68. All the cases Gardner references appear to
be closed habeas cases that he previously filed in this Court.1 There has been no activity
1 It appears Gardner mistakenly wrote the incorrect case numbers when he referred to cases 8:22cv119,
8:18cv115, 8:22cv121, and 8:22cv120, because Gardner is not a party to any of those cases. For purposes
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in these cases for over three years prior to Gardner filing the present motion, and,
because all the cases are closed, the Court finds Gardner’s request to consolidate the
matters unnecessary and frivolous. Accordingly, Gardner’s Motion to Consolidate is
denied.
II. MOTION FOR COA
Gardner next requests that the Court grant him a certificate of appealability
(“COA”) pursuant to Rule 22 of the Federal Rules of Appellate Procedure, which provides
that in habeas corpus proceedings where the detention complained of arises out of state
process, like Gardner’s, a petitioner “cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). This case was originally dismissed on March 1, 2018, because
Gardner failed to file an amended petition as ordered by the Court, see Filing No. 21;
Filing No. 22,2 and Gardner has already prosecuted four appeals in this case, which were
all dismissed, see Filing No. 31; Filing No. 43; Filing No. 58; Filing No. 66. The Court
sees absolutely no reason to issue a COA in this closed matter as any further attempt by
Gardner to file an appeal in this case would be utterly frivolous. Accordingly, the Court
will deny Gardner’s Motion for COA.
In addition, Gardner has been warned previously not to file any further frivolous
appeals in this case, see Filing No. 51; Filing No. 62, and the Court will reiterate that
warning here as well as admonish Gardner to refrain from filing any future documents or
of the Motion to Consolidate, the Court assumes Gardner intended to reference his closed habeas cases
at case numbers 8:21cv119, 8:18cv557, 8:21cv121, and 8:21cv120.
2 Gardner later filed another habeas action at case number 8:18cv241 challenging the same state-court
conviction that was the subject of this case, which was dismissed with prejudice on June 12, 2019. See
Gardner v. Nebraska, No. 8:18CV241, 2019 WL 13247450 (D. Neb. June 12, 2019).
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motions in this closed case as doing so unnecessarily expends the Court’s limited
resources. If Gardner fails to heed these warnings and file further frivolous motions in
this closed case, the Court will impose limitations on his right to file.
IT IS THEREFORE ORDERED that:
1. Gardner’s Motion to Consolidate, Filing No. 68, is denied.
2. Gardner’s Motion for COA, Filing No. 70, is denied.
3. Gardner is warned to refrain from filing any further frivolous appeals or
motions in this closed case. Failure to do so will result in the Court imposing filing
restrictions on Gardner.
Dated this 14th day of January, 2026.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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