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Mumin v. Frakes

Supreme Court of Nebraska

December 15, 2017

Dukhan Mumin, Appellant,
v.
Scott Frakes, director. Nebraska Department of Correctional Services. and Brian Gage, warden, Tecumseh State Correctional Institution, Appellees,

         1. Affidavits: Appeal and Error. A district court's denial of in forma pauperis status is reviewed de novo on the record based on the transcript of the hearing or written statement of the court.

         2. Statutes: Affidavits. Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) contemplates only two circumstances under which a court may deny leave to proceed in forma pauperis, assuming the application and affidavit is proper: (1) when the evidentiary hearing shows the applicant has sufficient funds to pay costs, fees, or security and (2) when the court concludes the applicant is asserting legal positions which are frivolous or malicious.

         3. Affidavits. If the basis for denial of in forma pauperis status is frivolousness, the court must provide a written statement of its reasons, findings, and conclusions.

         4. Constitutional Law: Statutes: Affidavits: Appeal and Error. The in forma pauperis statutes contemplate two circumstances under which a court has no authority to deny a proper application and affidavit to proceed in forma pauperis. The first circumstance is expressly laid out in statute: A court shall not deny an in forma pauperis application on the basis that the applicant's legal positions are frivolous or malicious if to do so would deny the applicant his or her constitutional right to appeal in a felony case. The second circumstance is one which this court has found to be implicit in the statutory scheme: Because an applicant has a statutory right to interlocutory appellate review of an order denying an in forma pauperis application, a court may not deny an application to proceed in forma pauperis when the applicant is seeking to appeal from an order denying an earlier in forma pauperis application.

         [298 Neb. 382] 5. Statutes: Affidavits: Appeal and Error. Although the in forma pauperis statutes give a trial court the authority to deny an application requested to commence, prosecute, defend, or appeal a case in forma pauperis if the court finds the applicant has sufficient funds or the legal positions being asserted therein are frivolous or malicious, a trial court does not have the same authority once an in forma pauperis application is denied and the applicant seeks interlocutory appellate review of that denial.

         6. Affidavits: Appeal and Error. When an application to proceed in forma pauperis is denied by the trial court and the applicant seeks leave to proceed in forma pauperis to obtain appellate review of that denial, a trial court does not have the authority to issue an order that would interfere with such appellate review.

         Petition for further review from the Court of Appeals. Riedmann, Bishop, and Arterburn, Judges, on appeal thereto from the District Court for Johnson County, Daniel E. Bryan, Jr., Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.

          Dukhan Mumin, pro se.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          STACY, J.

         Dukhan Mumin seeks further review of a Nebraska Court of Appeals opinion addressing his successive appeals from district court orders denying successive applications to proceed in forma pauperis (IFP). On further review, we clarify the procedure trial courts should follow in ruling on successive applications to proceed IFP, as well as the procedure appellate courts should follow in reviewing successive appeals from the denial of IFP applications. We ultimately reverse the decision of the Court of Appeals and remand the matter with specific directions.

         [298 Neb. 383] I. BACKGROUND

         In 2013, Mumin was convicted of possession of cocaine. He was found to be a habitual criminal and was sentenced to imprisonment for a term of 10 to 20 years. His conviction and sentence were affirmed on direct appeal to the Court of Appeals in an unpublished memorandum opinion in case No. A-13-783 filed on June 6, 2014.

         1. IFP Applications

         In March 2016, Mumin filed a pro se petition for writ of habeas corpus in the district court for Johnson County, Nebraska. Along with the petition, he filed an affidavit and application for leave to proceed IFP. The district court denied the IFP application, finding the legal positions Mumin advanced in his habeas petition were frivolous.

         Mumin filed a timely notice of appeal from the order denying his IFP application (first appeal). In lieu of the statutory docket fee on appeal, [1] he filed an application and affidavit to proceed IFP on appeal. The district court denied Mumin's application to proceed IFP on appeal, reasoning again that his habeas petition was frivolous.

         Mumin then timely appealed from the district court's order denying his application to proceed IFP on appeal (second appeal). The Clerk of the Supreme Court and Court of Appeals docketed both the first and second appeals under the same case number.

         2. Court of Appeals' Opinion

         In a memorandum opinion, [2] the Court of Appeals addressed Mumin's successive IFP appeals using the procedure we outlined in State v. Carter[3] First, the Court of Appeals addressed the second appeal and concluded it had jurisdiction over that [298 Neb. 384] appeal, because Mumin had filed a timely notice of appeal from the order denying IFP on appeal, accompanied by a proper poverty affidavit and IFP application. On the merits of the second appeal, the Court of Appeals analyzed, de novo on the record, whether the district court correctly concluded the underlying habeas petition was frivolous. It concluded Mumin was asserting a frivolous legal position in his habeas petition and, thus, affirmed the district court's order denying IFP on appeal.

         The Court of Appeals then held the first appeal under submission to give Mumin an opportunity to pay the statutory docket fee on appeal, reasoning that "pursuant to [Neb. Rev. Stat.] § 25-2301.02(1) [(Reissue 2016)], we will not have jurisdiction of the first appeal unless Mumin pays the statutory docket fee within 30 days of the date of release of this opinion."[4]

         Mumin timely filed a petition for further review, which we granted.

         II.ASSIGNMENT OF ERROR

         Mumin assigns it was error to conclude his habeas petition was frivolous.

         III. STANDARD OF REVIEW

         A district court's denial of IFP status is reviewed de novo on the record based on the transcript of the hearing or written statement of the court.[5]

         IV. ANALYSIS

         We granted further review to address the proper procedure for trial and appellate courts to follow when considering successive applications to proceed IFP and successive appeals from orders denying IFP. Mumin's appeal involves what has [298 Neb. 385] become a relatively common factual scenario: (1) Atrial court denies an IFP application to commence a case; (2) the applicant appeals the denial of IFP and, in lieu of the statutory docket fee on appeal, asks to proceed IFP on appeal; (3) the trial court denies the application to proceed IFP on appeal; and (4) the applicant then appeals the second IFP denial.[6] In this common example, the potential cycle of successive IFP denials and appeals is seemingly endless.

         Because successive IFP denials, and appeals therefrom, strain the limited resources of our judicial system and delay final resolution of matters brought before the court, we take this opportunity to clarify certain aspects of the IFP process which appear to have generated confusion in both the trial and appellate courts. We consider two questions on further review: (1) When does a trial court have authority to deny an application to proceed IFP on appeal? (2) When presented with successive IFP appeals, should an appellate court follow the procedure articulated in Glass v. Kenney[7] or the procedure articulated in State v. Carter[8]

         To answer these questions, we begin with an overview of the statutory IFP scheme. We then explain and contrast our holdings in Glass and Carter, after which we analyze Mumin's successive IFP appeals under the Glass procedure. Finally, we highlight an additional consideration for trial courts presented with IFP applications in cases such as Mumin's, where no prepayment of fees or costs was required.[9]

         1. IFP Statutes

         Nebraska's IFP statutes are codified at Neb. Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016). Those statutes define IFP as "the permission given by the court for a party to [298 Neb. 386] proceed without prepayment of fees and costs or security."[10]The IFP statutes authorize any county or state court, except the Workers' Compensation Court, to authorize "the commencement, prosecution, defense, or appeal therein, of a civil or criminal case in forma pauperis."[11] The IFP statutes define "[c]ase" to include "any suit, action, or proceeding."[12]

         The requirements of an IFP application are set out in statute. An application to proceed IFP "shall include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant's belief that he or she is entitled to redress."[13] We have not construed this language to mandate separate poverty affidavits and IFP applications; instead, we hold that as long as the poverty affidavit itself includes an indication that the party is applying for IFP status, § 25-2301.01 does not require that a separate IFP application be filed in addition to the poverty affidavit.[14]

         Assuming a proper IFP application and affidavit is filed, the IFP statutes mandate that leave to proceed IFP "shall be granted unless there is an objection that the party filing the application (a) has sufficient funds to pay costs, fees, or security or (b) is asserting legal positions which are frivolous or malicious."[15] An objection may be raised by "any interested person" or by the court on its own motion.[16] An objection claiming that an applicant has sufficient funds or is asserting frivolous or malicious legal positions must be made within 30 days after the IFP application is filed, but an objection claiming that the IFP application was fraudulent may be made at any [298 Neb. 387] time.[17] When an objection is filed, the court must conduct an evidentiary hearing on the objection, except when the objection is on the court's own motion on grounds the applicant is asserting legal positions which are frivolous or malicious.[18]

         Section 25-2301.02 contemplates only two circumstances under which a court may deny leave to proceed IFP, assuming the application and affidavit is proper: (1) when the evidentiary hearing shows the applicant has sufficient funds to pay costs, fees, or security and (2) when the court concludes the applicant is asserting legal positions which are frivolous or malicious.[19] If the basis for denying IFP is frivolousness, the court must provide a written statement of its reasons, findings, and conclusions.[20]

         Additionally, the IFP statutory scheme contemplates two circumstances under which a court has no authority to deny a proper application and affidavit to proceed IFP. The first circumstance is expressly laid out in § 25-2301.02(1): A court "shall not deny" an IFP application on the basis that the applicant's legal positions are frivolous or malicious if to do so would deny the applicant his or her constitutional right to appeal in a felony case. The second circumstance is one which this court has found to be implicit in the IFP statutory scheme: Because an applicant has a statutory right to interlocutory appellate review of an order denying an IFP application, [21] a court does not have authority to interfere with such appellate review by denying a request to proceed IFP in order to obtain appellate review of an order denying an earlier IFP application.[22]

         [298 Neb. 388] Finally, under the IFP statutory scheme, when an IFP application is denied, the applicant has two choices: (1) to proceed with the matter upon payment of fees, costs, or security[23] or (2) to appeal the order denying IFP.[24] If the applicant elects to appeal from the denial of IFP, he or she may ask the court for a transcript of the IFP hearing and the court is required by statute to "order the transcript to be prepared and the cost shall be paid by the county in the same manner as other claims are paid."[25]For the sake of completeness, we also note that IFP applications filed by prisoners seeking IFP status to file a civil action are subject to an additional statute, Neb. Rev. Stat. § 25-3401 (Reissue 2016), but that statute does not apply to habeas corpus relief[26] and is not relevant to the instant appeal.

         2. Successive IFP Appeals

         Our modern IFP jurisprudence has articulated two different procedures for appellate courts to follow when reviewing successive appeals involving the denial of IFP. Generally speaking, when the first appeal is from an order denying a request to proceed IFP, the procedure on appeal is set out in Glass v. Kenney.[27] But when the first appeal is not from an order denying IFP, but instead is from a judgment or final order, the proper appellate review procedure is set out in State v. Carter [28]We discuss both cases, and procedures, below.

         (a) Gl ...


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