Mumin v. Gage

Filing 10

MEMORANDUM AND ORDER - Upon initial review of the Petition (Filing No. 1 ), the court preliminarily determines that Petitioner's claims are potentially cognizable in federal court. By June 30, 2016, Respondent must file a motion for summary judgment or state court records in support of an answer. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: June 30, 2016: deadline for Respondent to file state court records in support of answer or motion for summary judgment. If Respondent elects to file an answer, the procedures must be followed by Respondent and Petitioner. The clerk of the court is directed to set a pro se case management deadline in this case using the follow ing text: August 1, 2016: check for Respondent's answer and separate brief. Petitioner's Motion to Appoint Counsel (Filing No. 7 is denied without prejudice to reassertion. In light of the rulings in this Memorandum and Order, Petitioner's Motion for Summary Judgment (Filing No. 8 ) is denied without prejudice. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DUKHAN MUMIN,
Petitioner,
V.
BRIAN GAGE,
Respondent.

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4:16CV3033

MEMORANDUM
AND ORDER

The court has conducted an initial review of the Petition for Writ of Habeas
Corpus (Filing No. 1) to determine whether the claims made by Petitioner are, when
liberally construed, potentially cognizable in federal court. It appears Petitioner has
made six claims.
Condensed and summarized for clarity, the claims asserted by Petitioner are:
Claim One:

Petitioner’s right to confrontation was violated
because (1) he was prevented from questioning a lab
analyst whose report was admitted into evidence at
trial; (2) the trial court allowed the testimony of a
confidential informant; (3) the trial court admitted
hearsay evidence; and (4) the trial court prevented
him from questioning “Mrs Harris.”

Claim Two:

Petitioner was denied effective assistance of trial
counsel because Petitioner’s attorney (1) did not file
a motion to dismiss or motion for new trial based on
insufficiency of evidence, the prosecutor’s failure to
produce the lab analyst to testify, the prosecutor’s
failure to notify defense counsel that the lab
analyst’s report would be offered at trial, and the
prosecutor’s failure to demonstrate that non-

testifying witnesses were unavailable for trial; (2)
did not discover the identity of the confidential
informant; (3) failed to object to the habitual
criminal enhancement; (4) failed to object based on
hearsay and the violation of Petitioner’s right to
confront witnesses; (5) failed to move to exclude
police officer testimony regarding statements made
by non-testifying witnesses; and (6) failed to move
to exclude the lab analyst’s report.
Claim Three:

Petitioner was denied effective assistance of
appellate counsel because counsel (1) failed to raise
the issue of vindictive prosecution; and (2) failed to
raise all arguments regarding trial counsel’s deficient
performance as set forth in Claim Two herein.

Claim Four:

Petitioner was denied the right to a fair trial and an
impartial judge.

Claim Five:

Petitioner was subjected to an illegal search and
seizure by police.

Claim Six:

Petitioner was vindictively prosecuted.

Liberally construed, the court preliminarily decides that Petitioner’s
claims are potentially cognizable in federal court. However, the court cautions
that no determination has been made regarding the merits of these claims or any
defenses thereto or whether there are procedural bars that will prevent
Petitioner from obtaining the relief sought.
Petitioner has also filed a Motion to Appoint Counsel. (Filing No. 7.)
“[T]here is neither a constitutional nor statutory right to counsel in habeas
proceedings; instead, [appointment] is committed to the discretion of the trial
court.” McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). As a general
rule, counsel will not be appointed unless the case is unusually complex or the
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petitioner’s ability to investigate and articulate the claims is unusually impaired
or an evidentiary hearing is required. See, e.g., Morris v. Dormire, 217 F.3d
556, 558-59 (8th Cir. 2000), cert. denied, 531 U.S. 984 (2000); Hoggard v.
Purkett, 29 F.3d 469, 471 (8th Cir. 1994). See also Rule 8(c) of the Rules
Governing Section 2254 Cases in the United States District Courts (requiring
appointment of counsel if an evidentiary hearing is warranted). The court has
carefully reviewed the record and finds there is no need for the appointment of
counsel at this time.
IT IS THEREFORE ORDERED that:
1.
Upon initial review of the Petition (Filing No. 1), the court
preliminarily determines that Petitioner’s claims are potentially cognizable in
federal court.
2.
By June 30, 2016, Respondent must file a motion for summary
judgment or state court records in support of an answer. The clerk of the court
is directed to set a pro se case management deadline in this case using the
following text: June 30, 2016: deadline for Respondent to file state court
records in support of answer or motion for summary judgment.
4.
If Respondent elects to file a motion for summary judgment, the
following procedures must be followed by Respondent and Petitioner:
A.

The motion for summary judgment must be accompanied
by a separate brief, submitted at the time the motion is
filed.

B.

The motion for summary judgment must be supported by
any state court records that are necessary to support the
motion. Those records must be contained in a separate
filing entitled: “Designation of State Court Records in
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Support of Motion for Summary Judgment.”
C.

Copies of the motion for summary judgment, the
designation, including state court records, and
Respondent’s brief must be served on Petitioner except that
Respondent is only required to provide Petitioner with a
copy of the specific pages of the record that are cited in
Respondent’s brief. In the event that the designation of
state court records is deemed insufficient by Petitioner,
Petitioner may file a motion with the court requesting
additional documents. Such motion must set forth the
documents requested and the reasons the documents are
relevant to the cognizable claims.

D.

No later than 30 days following the filing of the motion for
summary judgment, Petitioner must file and serve a brief in
opposition to the motion for summary judgment. Petitioner
may not submit other documents unless directed to do so
by the court.

E.

No later than 30 days after Petitioner’s brief is filed,
Respondent must file and serve a reply brief. In the event
that Respondent elects not to file a reply brief, he should
inform the court by filing a notice stating that he will not
file a reply brief and that the motion is therefore fully
submitted for decision.

F.

If the motion for summary judgment is denied, Respondent
must file an answer, a designation and a brief that complies
with terms of this order. (See the following paragraph.)
The documents must be filed no later than 30 days after the
denial of the motion for summary judgment. Respondent
is warned that failure to file an answer, a designation
and a brief in a timely fashion may result in the
imposition of sanctions, including Petitioner’s release.

5.
If Respondent elects to file an answer, the following procedures
must be followed by Respondent and Petitioner:
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A.

By June 30, 2016, Respondent must file all state court
records that are relevant to the cognizable claims. See, e.g.,
Rule 5(c)-(d) of the Rules Governing Section 2254 Cases in
the United States District Courts. Those records must be
contained in a separate filing entitled: “Designation of
State Court Records in Support of Answer.”

B.

No later than 30 days after the relevant state court records
are filed, Respondent must file an answer. The answer
must be accompanied by a separate brief, submitted at the
time the answer is filed. Both the answer and the brief
must address all matters germane to the case including, but
not limited to, the merits of Petitioner’s allegations that
have survived initial review, and whether any claim is
barred by a failure to exhaust state remedies, a procedural
bar, non-retroactivity, a statute of limitations, or because
the petition is an unauthorized second or successive
petition. See, e.g., Rules 5(b) and 9 of the Rules Governing
Section 2254 Cases in the United States District Courts.

C.

Copies of the answer, the designation, and Respondent’s
brief must be served on Petitioner at the time they are filed
with the court except that Respondent is only required to
provide Petitioner with a copy of the specific pages of the
designated record that are cited in Respondent’s brief. In
the event that the designation of state court records is
deemed insufficient by Petitioner, Petitioner may file a
motion with the court requesting additional documents.
Such motion must set forth the documents requested and
the reasons the documents are relevant to the cognizable
claims.

D.

No later than 30 days after Respondent’s brief is filed,
Petitioner must file and serve a brief in response. Petitioner
must not submit any other documents unless directed to do
so by the court.

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E.

No later than 30 days after Petitioner’s brief is filed,
Respondent must file and serve a reply brief. In the event
that Respondent elects not to file a reply brief, he should
inform the court by filing a notice stating that he will not
file a reply brief and that the merits of the petition are
therefore fully submitted for decision.

F.

The clerk of the court is directed to set a pro se case
management deadline in this case using the following text:
August 1, 2016: check for Respondent’s answer and
separate brief.

6.
No discovery shall be undertaken without leave of the court. See
Rule 6 of the Rules Governing Section 2254 Cases in the United States District
Courts.
7.
Petitioner’s Motion to Appoint Counsel (Filing No. 7) is denied
without prejudice to reassertion.
8.
In light of the rulings in this Memorandum and Order, Petitioner’s
Motion for Summary Judgment (Filing No. 8) is denied without prejudice.
DATED this 16th day of May, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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