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
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.
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.
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.)
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.
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).