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Mumin v. Frakes

United States District Court, D. Nebraska

November 20, 2018

DUKHAN MUMIN, Petitioner,
v.
SCOTT FRAKES, 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 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.

         I. BACKGROUND

         On 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.)

         On 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.)

         Mumin 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 involved.

         II. DISCUSSION

         A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding

         A 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.

         As the 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).

         B. ...


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