Ul Mahbub v. Warden, Rush City Prison et al
Filing
39
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS denying 1 Petition for a Writ of Habeas Corpus, denying 20 Motion to Stay and Abeyance filed by Maksud Ul Mahbub, denying 24 Motion to Allow Petitioner to Present an Ans wer to a Consolidated Report and Recommendation filed by Maksud Ul Mahbub, denying 9 Motion to Accept Current Petition as a First Habeas Petition filed by Maksud Ul Mahbub, and denying 2 Motion for an Order of Stay and Abeyance filed by Maksud Ul Mahbub (Written Opinion). Signed by Chief Judge John R. Tunheim on 5/17/2018. (HAZ)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MAKSUD UL MAHBUB,
Petitioner,
Civil No. 17-4908 (JRT/LIB)
v.
WARDEN, RUSH CITY PRISON;JOHN
CHOI, Ramsey County Attorney; LORI
SWANSON, Attorney General; STATE
OF MINNESOTA,
ORDER
Respondents.
Maksud Ul Mahbub, 23498, Freeborn County Detention Center, P.O. Box
170, Albert Lea, MN 56007, pro se petitioner.
Edwin W. Stockmeyer, III, and Matthew Frank, MINNESOTA
ATTORNEY GENERAL’S OFFICE, 445 Minnesota Street, Suite 1800,
St. Paul, MN
55101; Peter R. Marker, RAMSEY COUNTY
ATTORNEY’S OFFICE, 345 Wabasha Street North, Suite 120, St. Paul,
MN 55102, for respondents.
Petitioner Maksud Ul Mahbub (“Mahbub”), an inmate at the Minnesota
Correctional Facility – Rush City, has filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
On December 11, 2017, Magistrate Judge Leo I. Brisbois
recommended that Mahbub’s petition be denied and the action dismissed. After an
independent review of the files, records, and proceedings, the Court will conclude that
Mahbub’s petition is barred by 28 U.S.C. § 2244(b) and will dismiss the action without
prejudice for lack of jurisdiction.
BACKGROUND
Mahbub was convicted in state court of one count of third-degree criminal sexual
conduct and three counts of fourth-degree criminal sexual conduct. State v. Mahbub, No.
A11-1284, 2013 WL 4779009, at *3 (Minn. Ct. App. Sept. 9, 2013), review denied
(Minn. Nov. 26, 2013). Mahbub appealed the verdict on a number of grounds. Id. at *47. He also brought a postconviction petition, arguing that his trial counsel was ineffective
because he failed to request a suppression motion. Id. at *7-9. The Minnesota Court of
Appeals affirmed both the conviction and denial of Mahbub’s postconviction petition. Id.
at *9. The Minnesota Supreme Court denied review on November 26, 2013.
Following the denial of his postconviction petition in state court, Mahbub filed a
habeas petition under 28 U.S.C. § 2254. Mahbub v. Warden, No. 14-4825, 2016 WL
75053, at *1 (D. Minn. Jan. 6, 2016). The petition was dismissed with prejudice because
Mahbub had procedurally defaulted on the claims raised in that petition. Id. at *2-3.
The present petition is Mahbub’s second habeas petition (“the present petition”).
(Pet., Oct. 30, 2017, Docket No. 1.) The Magistrate Judge recommended that the Court
dismiss the present petition because Mahbub has not received permission from the Eighth
Circuit Court of Appeals to file a second habeas petition as required by 28 U.S.C. §
2244(b)(3). (R&R at 2-3, Dec. 11, 2017, Docket No. 16.)
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DISCUSSION
I.
STANDARD OF REVIEW
Upon the filing of a report and recommendation by a magistrate judge, a party
may “serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3).
While Mahbub has not formally filed objections, the Court construes his pro se filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II.
PROCEDURAL BAR
State prisoners are prohibited from bringing a second or successive habeas
petition, unless the claims presented in the petition fall within one of three narrow
exceptions. 28 U.S.C. § 2244(b)(2). Even when such an exception applies, the petitioner
must move the Eighth Circuit for an order authorizing the Court to consider the second or
successive application. See id. § 2244(b)(3).
The present petition is Mahbub’s second habeas petition. See Mahbub, 2016 WL
75053, at *1. Mahbub needed approval from the Eighth Circuit before filing this second
petition. 28 U.S.C. § 2244(b)(2). The Eighth Circuit has not authorized the Court to
review Mahbub’s present petition and, therefore, the Court will dismiss it without
prejudice.
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Nevertheless, Mahbub moves for the Court to consider the present petition as a
first habeas petition because he argues that it falls within one of the exceptions
enumerated in 28 U.S.C. § 2244(b)(2). (Mot. to Accept Current Petition as First Habeas
Pet., Mem. of L. at 1, Nov. 8, 2017, Docket No. 10.) The Court need not decide whether
the present petition falls within one of these exceptions because, even if it did, the Court
cannot consider it without the Eighth Circuit’s authorization. 28 U.S.C. § 2244(b)(3)(A).
Accordingly, the Court will deny Mahbub’s motion and dismiss his petition without
prejudice for lack of jurisdiction.
III.
MOTIONS TO STAY
Mahbub has also filed three motions to stay, requesting that the Court stay the
present petition until he has filed subsequent actions in various courts. 1 The Court does
not have jurisdiction over the present petition and, therefore, cannot stay the action. Even
if the Court stayed the action pending Mahbub’s other lawsuits, the Court would not
obtain jurisdiction following these other lawsuits. 28 U.S.C. § 2244(b)(3)(A) (requiring
that the petitioner obtain permission from the Eighth Circuit to file a second habeas
petition before the petition is filed with the Court). Accordingly, the Court will deny
Mahbub’s motions.
1
(Mot. for Order of Stay and Abeyance, Oct. 30, 2017, Docket No. 2; Mot. to Stay and
Abeyance, Feb. 9, 2018, Docket No. 20; Mot. to Allow Pet’r to Present Answer, Feb. 21, 2018,
Docket No. 24 (requesting deadline to file objections be stayed until other actions have been
resolved).)
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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No.
16].
Accordingly, IT IS HEREBY ORDERED that:
1.
Mahbub’s Petition for a Writ of Habeas Corpus [Docket No. 1] is
DENIED.
2.
The action is DISMSSED WITHOUT PREJUDICE for lack of
jurisdiction.
3.
Mahbub’s Motion to Accept Current Petition as a First Habeas Petition
[Docket No. 9] is DENIED.
4.
Mahbub’s Motion for an Order of Stay and Abeyance [Docket No. 2] is
DENIED.
5.
Mahbub’s Motion to Stay and Abeyance [Docket No. 20] is DENIED.
6.
Mahbub’s Motion to Allow Petitioner to Present an Answer to a
Consolidated Report and Recommendation [Docket No. 24] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: May 17, 2018
at Minneapolis, Minnesota.
_______
______
JOHN R. TUNHEIM
Chief Judge
United States District Court
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