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Mumin v. Frakes

United States District Court, D. Nebraska

March 24, 2017

DUKHAN MUMIN, Petitioner,
v.
SCOTT FRAKES, Respondent.

          MEMORANDUM AND ORDER [*]

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Petitioner Dukhan Mumin's (“Mumin”) Petition for Writ of Habeas Corpus (Filing No. 1) and Supplemental Writ of Habeas Corpus (Filing No. 14). For the reasons that follow, the court will dismiss Mumin's initial and supplemental habeas petitions with prejudice.

         Liberally construed, Mumin argues in his initial and supplemental habeas petitions that he is entitled to a writ of habeas corpus based on the following claims:

Claim One: His right to confrontation was violated because (1) he was prevented from questioning a lab analyst whose report was admitted into evidence at trial; (2) the trial court allowed the testimony of a confidential informant; (3) the trial court admitted hearsay evidence; and (4) the trial court prevented him from questioning “Mrs Harris.”
Claim Two: He was denied effective assistance of trial counsel because his attorney (1) did not file a motion to dismiss or motion for new trial based on insufficiency of evidence, the prosecutor's failure to produce the lab analyst to testify, the prosecutor's failure to notify defense counsel that the lab analyst's report would be offered at trial, and the prosecutor's failure to demonstrate that non-testifying witnesses were unavailable for trial; (2) did not discover the identity of the confidential informant; (3) failed to object to the habitual criminal enhancement; (4) failed to object based on hearsay and the violation of his right to confront witnesses; (5) failed to move to exclude police officer testimony regarding statements made by non-testifying witnesses; and (6) failed to move to exclude the lab analyst's report.
Claim Three: He was denied effective assistance of appellate counsel because counsel (1) failed to raise the issue of vindictive prosecution, and (2) failed to raise all arguments regarding trial counsel's deficient performance as set forth in Claim Two herein.
Claim Four: He was denied the right to a fair trial and an impartial judge.
Claim Five: He was subjected to an illegal search and seizure by police.
Claim Six: He was vindictively prosecuted.
Claim Seven: His sentence is void and unconstitutional because the State failed to show that he had counsel or waived counsel for each of his prior convictions.

(See filing No. 1; filing No. 14.)

         I. BACKGROUND

         A. Conviction and Sentence

         The court states the facts as they were recited by the Nebraska Court of Appeals in State v. Mumin, Case No. A-13-783 (Memorandum Opinion) (affirming Mumin's convictions and sentences on direct appeal); (Filing No. 28-4.). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006).

         On August 19, 2011, the State filed an information charging Mumin with possession of a controlled substance with the intent to deliver, and a habitual criminal enhancement. Neb. Rev. Stat. §§ 28-416 (1) (A) and 29-2221 (Reissue 2008). The information alleged that Mumin was previously convicted of two felonies. The information was later amended to possession of a controlled substance with a habitual criminal enhancement. § 28-416(3).

         On June 22, 2012, Mumin filed a motion to suppress evidence seized from his person, his living quarters, his motor vehicle, or any other place as a result of the search that occurred on June 16, 2011. A second motion was filed by Mumin to include the suppression of any visual or auditory observations made by Lincoln police officers.

         At the suppression hearings, Jason Mayo, an investigator with the Lincoln/Lancaster County Narcotics Task Force, a division of the Lancaster County sheriff's department, testified that his duties are to investigate the purchase, sale, and distribution of controlled substances. On June 16, 2011, Mayo was on duty as a plainclothes investigator in an unmarked cruiser with investigator Timothy Cronin, also with the Lincoln police department. Mayo observed a 1994 tan Lexus with Iowa plates in an area of Lincoln, Lancaster County, Nebraska which Mayo explained was a known active area for narcotics dealings and crack cocaine seizures. In the 4 to 5 weeks prior to June 16, Mayo had become familiar with the tan Lexus which he observed had frequently visited the area. Mayo testified that the Luxury Inn was a very active establishment for the sale of any type of drugs at that time and that he frequently conducted surveillance at that location, where he also observed the tan Lexus. Mayo also received information from a confidential informant throughout that time that the owner of the tan Lexus, a black male referred to as “Unc, ” was staying at the Luxury Inn and selling crack cocaine from that establishment.

         Mayo testified that he ran the Lexus' license plates which returned information that the vehicle was registered to Mumin. During those several weeks of observation of the area, on several occasions, Mayo observed the tan Lexus in the area pull over to the side of the road, pick up a female and drive around the block. Mayo fo1lowed the vehicle around the block, at which point the Lexus stopped and let the female out of the car. Mayo testified that he believed a narcotics exchange had occurred, although he did not directly observe any item in the female's hand upon her exit of the vehicle or any actual exchange of narcotics. Mayo testified that in the weeks prior to June 16, he observed several similar events involving Mumin and his Lexus in areas known for high drug activities.

         On June 16, 2011, Mayo and Cronin followed Mumin's Lexus to a parking lot in a commercial business area that Mayo described as “random” for narcotics activities. Mayo testified that no other vehicles were parked in the parking lot, that it was still light outside, and he could clearly observe that Mumin was driving the Lexus. Approximately 30 seconds after Mumin's arrival in the parking lot, a minivan driven by an black female pulled into the empty parking lot next to Mumin's Lexus. Mumin immediately got out of his Lexus and approached the minivan on the passenger side. Mumin entered the minivan, at which time Mayo believed that the individuals were involved in a narcotics exchange. Mayo drove his vehicle, the unmarked police vehicle, directly behind the minivan and approached the vehicle. As he approached, Mayo observed Mumin immediately clench his hand and put it behind his back. Mayo then observed Mumin open his hands and drop a small and shiny object from his hands as Mumin exited the vehicle with Mayo. Mayo testified that it was common for individuals in similar situations to try and get rid of the drugs by doing such things as throwing drugs between the seats, putting drugs down their pants, or swallowing them. As Mumin reached behind his back, Mayo testified that he was concerned that Mumin was reaching for a weapon or attempting to destroy drugs. However, on cross-examination, Mayo testified that in his experience as an investigator, he had not previously seen crack cocaine packaged in tinfoil. Mayo observed a piece of shiny tinfoil on the front passenger seat and, after opening the tinfoil, found what appeared to be a small rock of crack cocaine, which Mayo testified was substantiated by testing at the Nebraska State Patrol Crime Lab.

         The female driver of the vehicle reported to Mayo that she was at that location in order to purchase $20 of crack cocaine from “Unc” who was seated in the vehicle with her when Mayo approached. The driver indicated that she had purchased crack cocaine from Mumin on several occasions in the weeks prior to June 16, 2011. Thereafter, a marked cruiser arrived and Mayo and Cronin conducted a probable cause search of Mumin's Lexus. Mayo testified that based upon his education, training, and experience, including information and investigations conducted beforehand regarding Mumin's involvement in a narcotics sa1e, that there were narcotics in the Lexus. In the Lexus, Mayo found more tinfoil containing 18 individually wrapped pieces of crack cocaine. Additionally, Mayo testified that he also found cash and several cell phones in Mumin's vehicle.

         On cross-examination, Mayo admitted that in the surveillance conducted prior to June 16, 2011, he had not actually observed Mumin at the Luxury Inn or in the Lexus. Similarly, Mayo testified that he had not directly observed anything that occurred in Mumin's vehicle on the occasions that people were observed getting into the vehicle with him and driving around the b1ock. Mayo testified that on June 16, he did not see Mumin commit any traffic violation on the way to the parking lot, but once Mumin exited his vehicle and entered the passenger side of the minivan, Mayo believed that a narcotics transaction was occurring in the minivan. Mayo testified that he did not ask or receive any consent to search either vehicle.

         Cronin testified as to much of the same information as Mayo explained above, including that as Cronin approached the car, in plain clothing, but with his sidearm on his hip and badge around a lanyard on his neck, he observed Mumin move his hand and quickly shove it behind his back. Cronin testified that he was concerned for his safety as he believed that Mumin could either have had a weapon behind his back or was trying to hide or destroy narcotics. As Cronin reached for Mumin, he observed his hand relax and open from the previously clenched position and three balls of tinfoil fall on the seat where Mumin's hand had been. Cronin also testified that the female driver of the minivan reported that she had, on several occasions in the preceding 2 months, purchased crack cocaine from Mumin.

         Thereafter, the district court overruled both of Mumin's motions to suppress. The district court found that Mayo and Cronin had reasonable suspicion that criminal activity was occurring, specifically, the delivery of narcotics, when the officers parked behind the minivan in the parking lot. The district court found that Mumin's behavior of reaching behind his back did not dispel the suspicion and Cronin was justified in grabbing Mumin and removing him from the minivan to protect himself or to prevent the destruction of evidence. The court further determined that the officers did not have to get a warrant before reaching into the minivan to retrieve and open the tinfoil packets, that Mumin had no right to privacy in the minivan and had abandoned the foil packets. The district court found that even if Mumin's circumstances did not apply to the right to privacy or abandonment arguments, under the automobile exception, no warrant was required.

         Thereafter, a bench trial was held on stipulated facts. Mumin objected to the submission of the testimony by Mayo and Cronin, and all related exhibits, as the exhibits related to his motions to suppress, which objections were all overruled by the district court. The facts stipulated to were the following: that three rocks of crack cocaine were found in the minivan, 18 rocks of crack cocaine were found in Mumin's vehicle, the chain of custody was maintained for those 21 items, and that the events occurred in Lancaster County, Nebraska. The district court found beyond a reasonable doubt that Mumin did knowingly or intentionally possess a controlled substance, specifically, crack cocaine, on the date alleged in the information in Lancaster County, Nebraska.

         Once the presentence investigation report was completed, at an enhancement and sentencing hearing, the district court received evidence of several prior felony convictions of Mumin and determined that Mumin was a habitual criminal. The district court sentenced Mumin to 10 years' to 20 years' imprisonment.

         B. Direct Appeal

         Mumin appealed his conviction and sentence to the Nebraska Court of Appeals. (Filing No. 1.) In a brief prepared by counsel, Mumin argued that the trial court erred when it (1) overruled Mumin's motions to suppress and admitted the evidence obtained therefrom, and (2) imposed an excessive sentence. (Filing No. 28-7.) In his pro se brief, Mumin argued that the trial court erred when it (1) allowed “the police to testify concerning out-of-court statements made by witnesses, without establishing on the record as to whether [Mumin] waived his confrontation rights”; (2) found that he did not have standing to challenge the stop and seizure; (3) prosecuted him in violation of due process; and (4) found facts that increased his sentence, in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013). (Filing No. 28-8.) Mumin argued, in both briefs, that his trial counsel was ineffective on multiple grounds. (Filing No. 28-7; Filing No. 28-8.)

         The Nebraska Court of Appeals rejected Mumin's claims of trial court error and determined that the record was insufficient to review his claims of ineffective assistance of trial counsel. (Filing No. 28-4.) Because there was no Fourth Amendment violation, the court concluded that the trial court properly overruled Mumin's motions to suppress. (Id. at CM/ECF pp. 8-18.) The court also determined that Mumin's right to confrontation had not been violated and that there was nothing in the record to support his claim that the State prosecuted him in violation of due process. (Id. at CM/ECF pp. 18-21.) The court concluded that Mumin's sentence was not excessive and that there was no Alleyne violation. (Id. at CM/ECF pp. 21-26.) The court affirmed Mumin's conviction and sentence. (Id. at CM/ECF p. 28.) Thereafter, Mumin and his counsel filed petitions for further review. (Filing No. 28-11; Filing No. 28-12.) The Nebraska Supreme Court denied both petitions. (Filing No. 28-1.)

         C. Postconviction Action

         Mumin filed a motion for postconviction relief and supplemental pleadings to his motion in the state district court. (Filing No. 28-20 at CM/ECF pp. 2-17,23-27,40-42.) Mumin alleged numerous claims of trial court error, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. (Id.) The state district court ...


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