United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
closed federal habeas matter under 28 U.S.C. § 2254 is
before the court on Petitioner Dukhan Mumin's
(“Petitioner” or “Mumin”) request for
post-judgment relief under Rule 60(b) of the Federal Rules of
Civil Procedure (filing no. 73), supplemental
request for relief under Rule 60(b) (filing no. 74),
amended motion for relief from judgment (filing no.
76), and request for a preliminary injunction
(filing no. 75). The requests for Rule 60(b) relief
will be denied and dismissed for failure to obtain
authorization from the Eighth Circuit Court of Appeals to
file a second or successive petition under § 2254. The
request for a preliminary injunction also will be denied.
March 24, 2017, the court dismissed Mumin's Petition for
Writ of Habeas Corpus (filing no. 1) and
Supplemental Writ of Habeas Corpus (filing no. 14)
which challenged his 2013 conviction for possession of a
controlled substance (crack cocaine) with a habitual criminal
enhancement. (Filing No. 52.) The court determined
that several of Mumin's claims were procedurally
defaulted and Mumin failed to show cause and prejudice for
the default of his claims or that the court's failure to
consider his claims would result in a fundamental miscarriage
of justice. (Id. at CM/ECF pp.14-22.) For those
claims that were properly exhausted, the court determined
either that the claims were not cognizable in a federal
habeas action or that Mumin was not entitled to relief on the
merits. (Id.) The court declined to issue a
certificate of appealability, and Mumin prosecuted an appeal
to the Eighth Circuit Court of Appeals which was dismissed.
(SeeFiling No. 68.)
April 5, 2018, Mumin filed a request for relief under Rule
60(b) followed by a supplemental request on May 25, 2018.
(Filing No. 73; Filing No. 74.) Liberally
construed, summarized and condensed, Mumin alleges that his
sentence is void because the habitual offender enhancement he
received pursuant to Neb. Rev. Stat. § 29-2221 violates
due process and the ex post facto clause. Mumin argues that
he was not given notice that he would not receive good time
under Neb. Rev. Stat. §§ 83-1, 107 and 83-1, 110
towards his mandatory minimum habitual offender sentence
until the time of sentencing and the failure to include such
facts in the information voids the judgment against him for
lack of jurisdiction. (See Filing No. 75.)
later filed an amended motion for relief from judgment on
July 20, 2018, challenging the jurisdiction of this court to
adjudicate his rights under the prior habeas action in this
case. (Filing No. 76.) Mumin argues that his state
court judgment was void ab initio for lack of jurisdiction
and, therefore, this court lacked jurisdiction to consider
Mumin's habeas action. Mumin asks the court to reopen his
habeas case and determine the jurisdictional questions
Standard for Review of 60(b) Motion in Closed Habeas
prisoner may file a second or successive petition under
§ 2254 only after obtaining authorization to do so from
the appropriate United States Court of Appeals. 28 U.S.C.
§ 2244(b)(3). The Eighth Circuit has directed that where
a prisoner files a Rule 60(b) motion following the dismissal
of a habeas petition, the district court should file the
motion and then conduct a brief initial inquiry to determine
whether the allegations in the Rule 60(b) motion in fact
amount to a second or successive collateral attack under 28
U.S.C. § 2254. Boyd v. United States, 304 F.3d
813, 814 (8th Cir. 2002). If the district court determines
the Rule 60(b) motion is actually a second or successive
habeas petition, it should dismiss the motion for failure to
obtain authorization from the Court of Appeals or, in its
discretion, transfer the purported Rule 60(b) motion to the
Court of Appeals. Boyd, 304 F.3d at 814.
Eighth Circuit has explained,
A Rule 60(b) motion is a second or successive habeas corpus
application if it contains a claim. For the purpose of
determining whether the motion is a habeas corpus
application, claim is defined as an “asserted federal
basis for relief from a state court's judgment of
conviction” or as an attack on the “federal
court's previous resolution of the claim on the
merits.” Gonzalez [v. Crosby], 545 U.S.
[524, ] 530, 532 [(2005)]. “On the merits” refers
“to a determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief under
28 U.S.C. §§ 2254(a) and (d).” Id.
at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b) motion
presents a claim, it must be treated as a second or
successive habeas petition under AEDPA [Antiterrorism and
Effective Death Penalty Act].
No claim is presented if the motion attacks “some
defect in the integrity of the federal habeas
proceedings.” Id. at 532, 125 S.Ct. 2641.
Likewise, a motion does not attack a federal court's
determination on the merits if it “merely asserts that
a previous ruling which precluded a merits determination was
in error-for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations
bar.” Id. at n.4.
Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009)
(emphasis in original).