Ul Mahbub v. Warden, Rush City Prison et al

Filing 48

ORDER: Petitioner shall not be granted a certificate of appealability; denying as moot 42 Petitioner's Motion to Appoint Counsel; denying as moot 43 Petitioner's Application on Proceed In Forma Pauperis on Appeal. (Written Opinion) Signed by Chief Judge John R. Tunheim on 6/27/2018. (JMK)

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, for respondents.
Peter R. Marker, RAMSEY COUNTY ATTORNEY’S OFFICE, 345
Wabasha Street North, Suite 120, St. Paul, MN 55102, for State of
Minnesota.

Petitioner Maksud Ul Mahbub (“Mahbub”), an inmate at the Minnesota
Correctional Facility – Rush City, filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. The Court dismissed Mahbub’s petition without prejudice because Mahbub
has not received authorization from the Eighth Circuit to bring a second or successive
habeas petition. (Order at 3-5, May 17, 2018, Docket No. 39.) Mahbub now moves to
extend time to file his application for a Certificate of Appealability (“COA”), to appoint

appellate counsel, and to proceed in forma pauperis. (Mot. to Extend Time, May 31, 2018,
Docket No. 42; IFP Application, May 31, 2018, Docket No. 43.) The Court will deny
Mahbub’s motions as moot because Mahbub is not entitled to a COA.
A petitioner cannot appeal a final order on a habeas petition arising out of a state
conviction unless issued a COA. 28 U.S.C. § 2253(c)(1)(A). A district court judge
possesses the authority to issue COAs. Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.
1997); Fed. R. App. P. 22. A court may issue a COA only where a petitioner has made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2);
Copeland v. Washington, 232 F.3d 969, 977 (8th Cir. 2000). To make such a showing, the
issues must be “debatable among reasonable jurists,” a court must be able to “resolve the
issues differently,” or the case must “deserve further proceedings.” Flieger v. Delo, 16
F.3d 878, 882-83 (8th Cir. 1994). “Determining whether a COA should issue where the
petition was dismissed on procedural grounds has two components, one directed at the
underlying constitutional claims and one directed at the district court’s procedural
holding.” Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The petitioner must satisfy
both elements. Id.
Mahbub is not entitled to a COA because there is no debate that Mahbub failed to
receive approval from the Eighth Circuit before filing his second habeas petition. 28
U.S.C. § 2244(b)(3); see also Mahbub v. Warden, No. 14-4825, 2016 WL 75053 , at *3
(D. Minn. Jan. 6, 2016) (dismissing Mahbub’s first petition with prejudice). As the Court
informed Mahbub in its initial order, if he wishes to present his claims in federal court, he
must first seek authorization from the Eighth Circuit. The Court concludes that Mahbub
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cannot show the Court’s procedural ruling is debatable among reasonable jurists or worthy
of further proceedings. Slack, 529 U.S. at 484-85. As such, the Court need not consider
his constitutional claims. Accordingly, the Court will not issue a COA and will deny
Mahbub’s motions.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1.

Petitioner shall NOT be granted a Certificate of Appealability;

2.

Petitioner’s Motion to Extend Time to File Application for COA and to

Appoint Counsel [Docket No. 42] is DENIED as moot; and
3.

Petitioner’s Application to Proceed In Forma Pauperis on Appeal [Docket

No. 43] is DENIED as moot.

DATED: June 27, 2018
at Minneapolis, Minnesota.

________s/John R. Tunheim______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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