United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
Dukhan Mumin has filed a “Request for Relief of
Judgment Under Rule 60(b)(4)” (filing no. 1),
which has been docketed as a petition for writ of habeas
corpus, and motions to proceed in forma pauperis (filing nos.
4, 5). I will grant Mumin leave to proceed
in forma pauperis, but I will dismiss Mumin's petition
for relief upon initial review.
November 13, 1998, Mumin entered a plea of no contest to the
charge of criminal conspiracy to commit forgery in the second
degree, a Class III felony, and was convicted and sentenced
to ten to fifteen years imprisonment, of which he served
nearly eight years. (Filing No. 1 at CM/ECF pp.1,
3, 9.) Mumin alleges he unsuccessfully
challenged his conviction through a state postconviction
motion and a previous federal habeas petition. (Id. at
CM/ECF p.1); (see Mumin v. Clarke, Case No.
4:04CV3058 (D. Neb.) (dismissing petition for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254 as barred by
the statute of limitations)).
has filed the present action against the Respondents, Douglas
County, Nebraska, and the State of Nebraska, asking this
court to declare his 1998 conviction void and to set aside
his conviction. Mumin claims the District Court of Douglas
County, Nebraska, the judgment-rendering court, lacked
subject matter and personal jurisdiction to enter the guilty
verdict and sentence because the Information charging Mumin
failed to set out facts establishing value as required for a
charge of forgery in the second degree.
judgment from which Mumin seeks relief is his 1998
state-court judgment of conviction. It is clear from the form
of the petition that Mumin seeks relief pursuant to Rule
60(b)(4) of the Federal Rules of Civil
Procedure as a standalone request and has not sought
to raise his present request for relief in his closed federal
habeas case, 4:04CV3058, which challenged the same judgment
is well established that a Rule 60(b) motion may not be used
to ‘relieve a party from operation of a judgment of
conviction or sentence in a criminal case.'”
United States v. Shenett, No. CRIM.A. 05-431 MJD,
2015 WL 3887184, at *2 (D. Minn. June 24, 2015) (quoting
United States v. Hunt, No. 4:07-CR-121, 2008 WL
4186258, at *1 (E.D.Mo. Sept. 5, 2008) (holding that a
defendant's Rule 60(b)(4) motion to vacate criminal
judgment “is frivolous because a prisoner may not
attack the legality of his conviction through Rule
60(b)”)). Rule 60(b)(4) “is a rule of civil
procedure and thus not available to challenge criminal
judgments, nor may it be used to challenge state judgments of
any sort in federal court.” Sherratt v. Friel,
275 Fed.Appx. 763, 767 n.1 (10th Cir. 2008). “At best,
in its discretion a district court may choose to interpret a
60(b)(4) motion attacking a state criminal judgment as a
§ 2254 petition, but all the strictures of AEDPA will
apply.” Id.(citing Gonzalez v.
Crosby, 545 U.S. 524, 531-35 (2005) (explaining proper
role of Rule 60(b) in habeas cases)).
Mumin's 60(b)(4) motion as a § 2254 habeas petition,
likewise, affords him no relief. As stated, Mumin
unsuccessfully challenged this same judgment of conviction in
earlier federal habeas corpus litigation. (See Mumin v.
Clarke, Case No. 4:04CV3058 (D. Neb.) (dismissing
petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 with prejudice)). Thus, Mumin would be
required to seek the permission of the Court of Appeals to
commence this second action. 28 U.S.C. § 2444(b)(2)
& (3)(A). He has not done so, and this matter must be
dismissed. Burton v. Stewart, 549 U.S. 147, 152
(2007) (the district court lacked jurisdiction to entertain
habeas petition since prisoner did not obtain an order
authorizing him to file second petition).
a petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the
district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). I have applied
the appropriate standard and determined that Petitioner is
not entitled to a certificate of appealability.
THEREFORE ORDERED that:
Petitioner's motion to proceed in forma pauperis (filing
nos. 4, 5) is granted and Petitioner is
relieved from paying the filing fee.
Petitioner's habeas corpus petition (filing no.
1) is denied and dismissed with prejudice. The court
will not issue a certificate of appealability in this matter.
A separate ...