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Mumin v. Clarke

United States District Court, D. Nebraska

November 20, 2018

DUKHAN IQRAA JIHAD MUMIN, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         This closed federal habeas matter under 28 U.S.C. § 2254 is before the court on Petitioner Dukhan Mumin's (“Petitioner” or “Mumin”) Request for Relief from Judgment Pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure (filing no. 27) and Request for Recusal (filing no. 28). For the reasons explained below, both motions will be denied.

         I. BACKGROUND

         The court, in a decision by Judge Joseph F. Bataillon, denied Mumin habeas relief on July 12, 2004. (Filing No. 11; Filing No. 12.) In that ruling, the court determined that Mumin's habeas petition was barred by the one-year statute of limitations in 28 U.S.C. § 2244(d). (Filing No. 11.) Mumin appealed to the Eighth Circuit Court of Appeals which denied his application for a certificate of appealability and dismissed his appeal. (Filing No. 23.)

         On June 14, 2018, Mumin filed a “Request for Relief of Judgment Under Rule 60(b)(4)” which was docketed as a new petition for writ of habeas corpus in Case Number 8:18CV271. (Filing No. 1, No. 8:18CV271.) In this pleading, Mumin alleged his November 13, 1998 conviction for criminal conspiracy to commit forgery in the second degree, a Class III felony, was void and sought to have his conviction set aside pursuant to Fed.R.Civ.P. 60(b)(4). Mumin acknowledged that he had previously unsuccessfully challenged his 1998 conviction in the present case, but, as the court noted, Mumin sought “relief pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure as a standalone request and ha[d] not sought to raise his present request for relief in his closed federal habeas case, 4:04CV3058, which challenged the same judgment of conviction.” (Filing No. 6 at CM/ECF p. 2, No. 8:18CV271.) The court denied Mumin relief on the grounds that Rule 60(b)(4) could not be used to challenge criminal judgments or state judgments of any sort in federal court. (Id.) In addition, even if Mumin's Rule 60(b)(4) motion was construed as a § 2254 habeas petition, it would be barred as an unauthorized successive petition. (Id. at CM/ECF p. 3.) Mumin appealed this decision to the Eighth Circuit which denied his application for a certificate of appealability and dismissed his appeal. (Filing No. 13, No. 8:18CV271.)

         Shortly after the court rendered its decision in 8:18CV271, Mumin filed the present motion for post-judgment relief pursuant to Rule 60(b)(4) in this case on July 30, 2018. (Filing No. 27.) Mumin asks the court to reopen his habeas case for the following reasons:

1. The ruling by this Court in the above mentioned case was void, lacked jurisdiction, and acted in a manner inconsistent with due process.
2. Petitioner alleged in the original action that the judgment rendered by the state court was void. That would automatically equate to no court thereafter having jurisdiction.
3. This Court in that action lacked jurisdiction to adjudicate the rights of Mumin, and acted in a manner inconsistent with due process by doing so.
4. Additionally, there is no time limit on the filing of a Rule 60(b) motion if the judgment was void.

(Id.) Mumin also filed a Request for Recusal (filing no. 28) seeking to have the undersigned removed from his pending cases.[1]

         II. DISCUSSION

         A. Motion for Relief from Judgment Under Rule 60(b)(4)

         Pursuant to Rule 60(b)(4), [2] Mumin seeks to reopen the court's judgment on Mumin's habeas petition on the grounds that this court lacked jurisdiction and its prior ruling was void because the state court criminal judgment is void. Liberally construed, Mumin claims the state judgment is void for lack of jurisdiction because the Information charging Mumin failed to set out facts establishing value as required ...


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