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Mumin v. Hansen

United States District Court, D. Nebraska

November 20, 2018

DUKHAN MUMIN, Petitioner,
v.
BRAD HANSEN, 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 under Rule 60(b)(4) of the Federal Rules of Civil Procedure (filing no. 18), Amended Motion for Relief from Judgment (filing no. 22), Supplemental Motion for Relief under Rule 60 (filing no. 23), Request for Preliminary Injunction/Restraining Order (filing no. 19), and Request for Evidentiary Hearing and Appointment of Counsel (filing no. 20). 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 requests for a preliminary injunction, evidentiary hearing, and appointment of counsel also will be denied as moot.

         I. BACKGROUND

         On March 30, 2018, the court dismissed Mumin's Petition for Writ of Habeas Corpus (filing no. 1) which challenged the habitual offender enhancement he received as part of his 2013 conviction in Case Number CR11-954 in the District Court of Lancaster County, Nebraska. The court determined that Mumin's petition was a second or successive habeas petition that had not been authorized by the Eighth Circuit Court of Appeals pursuant to 28 U.S.C. § 2244(b). In making this determination, the court noted that Mumin had unsuccessfully challenged his 2013 judgment of conviction in earlier federal habeas corpus litigation in Mumin v. Frakes, No. 4:16CV3033 (D. Neb.). Additionally, Mumin had filed three other habeas petitions in 4:17CV3169, 4:18CV3015, and 8:18CV102 challenging the same conviction, all of which have been dismissed as second or successive petitions. The Eighth Circuit Court of Appeals denied Mumin's petition for authorization to file a successive habeas application in this case. (Filing No. 16.)

         On June 4, 2018, Mumin filed a motion seeking relief from the judgment entered by the Lancaster County District Court in Case Number CR11-954 pursuant to Fed.R.Civ.P. 60(b)(4). (Filing No. 18.) Mumin raises the same arguments raised in his habeas petition. Liberally construed, summarized, and condensed, Mumin asserts that his state conviction is void because the habitual offender enhancement he received pursuant to Neb. Rev. Stat. § 29-2221 violates equal protection, due process, the right to trial by jury, and the ex post facto clause. Mumin bases his constitutional claims on the alleged lack of notice in the Information or the statutory language of Neb. Rev. Stat. § 29-2221 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 and on the trial court's finding of a fact essential to the punishment sought to be inflicted under Neb. Rev. Stat. § 29-2221. (Filing No. 18 at CM/ECF pp. 3-5.)

         Subsequently on July 20, 2018, Mumin filed an Amended Motion for Relief from Judgment (filing no. 22) challenging the jurisdiction of this court to adjudicate his rights under the prior habeas action in this case. 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 later filed a supplement to his Rule 60 Motion alleging that the “[a]ttorneys from the Attorney General's Office, who represented the State of Nebraska against Mumin in the above captioned case, engaged in the intentional fraud of not informing the Court that there was never a valid conviction of Mumin.” (Filing No. 23.) Mumin claims no valid judgment of conviction was ever signed by the trial judge and entered into the record. (SeeFiling No. 20; Filing No. 21.) 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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