Mumin v. Gage

Filing 52

MEMORANDUM AND ORDER that Mumins Petition for Writ of Habeas Corpus (Filing No. 1) and Supplemental Writ of Habeas Corpus (Filing No. 14) are dismissed with prejudice. Mumin's Request for Appointment of Counsel (Filing No. 45) is denied. Mum in's Motion for Summary Judgment (Filing No. 46) and subsequent requests (Filing No. 49; Filing No. 50) are denied. The court will not issue a certificate of appealability. The court will enter a separate judgment in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DUKHAN MUMIN,
Petitioner,

4:16CV3033

vs.
MEMORANDUM
AND ORDER

SCOTT FRAKES,
Respondent.

This matter is before the court on Petitioner Dukhan Mumin’s (“Mumin”)
Petition for Writ of Habeas Corpus (Filing No. 1) and Supplemental Writ of
Habeas Corpus (Filing No. 14). For the reasons that follow, the court will dismiss
Mumin’s initial and supplemental habeas petitions with prejudice.
Liberally construed, Mumin argues in his initial and supplemental habeas
petitions that he is entitled to a writ of habeas corpus based on the following
claims:
Claim One:



His 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.”

This opinion contains hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third
parties or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.

Claim Two:

He was denied effective assistance of trial counsel
because his 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 his 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:

He 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:

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

Claim Five:

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

Claim Six:

He was vindictively prosecuted.

Claim Seven:

His sentence is void and unconstitutional because
the State failed to show that he had counsel or
waived counsel for each of his prior convictions.
2

(See filing No. 1; filing No. 14.)
I. BACKGROUND
A.

Conviction and Sentence

The court states the facts as they were recited by the Nebraska Court of
Appeals in State v. Mumin, Case No. A-13-783 (Memorandum Opinion) (affirming
Mumin’s convictions and sentences on direct appeal); (Filing No. 28-4.). See
Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006).
On August 19, 2011, the State filed an information charging Mumin with
possession of a controlled substance with the intent to deliver, and a habitual
criminal enhancement. Neb. Rev. Stat. §§ 28-416 (1) (A) and 29-2221 (Reissue
2008). The information alleged that Mumin was previously convicted of two
felonies. The information was later amended to possession of a controlled
substance with a habitual criminal enhancement. § 28-416(3).
On June 22, 2012, Mumin filed a motion to suppress evidence seized from
his person, his living quarters, his motor vehicle, or any other place as a result of
the search that occurred on June 16, 2011. A second motion was filed by Mumin to
include the suppression of any visual or auditory observations made by Lincoln
police officers.
At the suppression hearings, Jason Mayo, an investigator with the
Lincoln/Lancaster County Narcotics Task Force, a division of the Lancaster
County sheriff’s department, testified that his duties are to investigate the purchase,
sale, and distribution of controlled substances. On June 16, 2011, Mayo was on
duty as a plainclothes investigator in an unmarked cruiser with investigator
Timothy Cronin, also with the Lincoln police department. Mayo observed a 1994
3

tan Lexus with Iowa plates in an area of Lincoln, Lancaster County, Nebraska
which Mayo explained was a known active area for narcotics dealings and crack
cocaine seizures. In the 4 to 5 weeks prior to June 16, Mayo had become familiar
with the tan Lexus which he observed had frequently visited the area. Mayo
testified that the Luxury Inn was a very active establishment for the sale of any
type of drugs at that time and that he frequently conducted surveillance at that
location, where he also observed the tan Lexus. Mayo also received information
from a confidential informant throughout that time that the owner of the tan Lexus,
a black male referred to as “Unc,” was staying at the Luxury Inn and selling crack
cocaine from that establishment.
Mayo testified that he ran the Lexus’ license plates which returned
information that the vehicle was registered to Mumin. During those several weeks
of observation of the area, on several occasions, Mayo observed the tan Lexus in
the area pull over to the side of the road, pick up a female and drive around the
block. Mayo fo1lowed the vehicle around the block, at which point the Lexus
stopped and let the female out of the car. Mayo testified that he believed a
narcotics exchange had occurred, although he did not directly observe any item in
the female’s hand upon her exit of the vehicle or any actual exchange of narcotics.
Mayo testified that in the weeks prior to June 16, he observed several similar
events involving Mumin and his Lexus in areas known for high drug activities.
On June 16, 2011, Mayo and Cronin followed Mumin’s Lexus to a parking
lot in a commercial business area that Mayo described as “random” for narcotics
activities. Mayo testified that no other vehicles were parked in the parking lot, that
it was still light outside, and he could clearly observe that Mumin was driving the
Lexus. Approximately 30 seconds after Mumin’s arrival in the parking lot, a
minivan driven by an black female pulled into the empty parking lot next to
Mumin’s Lexus. Mumin immediately got out of his Lexus and approached the
minivan on the passenger side. Mumin entered the minivan, at which time Mayo
4

believed that the individuals were involved in a narcotics exchange. Mayo drove
his vehicle, the unmarked police vehicle, directly behind the minivan and
approached the vehicle. As he approached, Mayo observed Mumin immediately
clench his hand and put it behind his back. Mayo then observed Mumin open his
hands and drop a small and shiny object from his hands as Mumin exited the
vehicle with Mayo. Mayo testified that it was common for individuals in similar
situations to try and get rid of the drugs by doing such things as throwing drugs
between the seats, putting drugs down their pants, or swallowing them. As Mumin
reached behind his back, Mayo testified that he was concerned that Mumin was
reaching for a weapon or attempting to destroy drugs. However, on crossexamination, Mayo testified that in his experience as an investigator, he had not
previously seen crack cocaine packaged in tinfoil. Mayo observed a piece of shiny
tinfoil on the front passenger seat and, after opening the tinfoil, found what
appeared to be a small rock of crack cocaine, which Mayo testified was
substantiated by testing at the Nebraska State Patrol Crime Lab.
The female driver of the vehicle reported to Mayo that she was at that
location in order to purchase $20 of crack cocaine from “Unc” who was seated in
the vehicle with her when Mayo approached. The driver indicated that she had
purchased crack cocaine from Mumin on several occasions in the weeks prior to
June 16, 2011. Thereafter, a marked cruiser arrived and Mayo and Cronin
conducted a probable cause search of Mumin’s Lexus. Mayo testified that based
upon his education, training, and experience, including information and
investigations conducted beforehand regarding Mumin’s involvement in a
narcotics sa1e, that there were narcotics in the Lexus. In the Lexus, Mayo found
more tinfoil containing 18 individually wrapped pieces of crack cocaine.
Additionally, Mayo testified that he also found cash and several cell phones in
Mumin’s vehicle.

5

On cross-examination, Mayo admitted that in the surveillance conducted
prior to June 16, 2011, he had not actually observed Mumin at the Luxury Inn or in
the Lexus. Similarly, Mayo testified that he had not directly observed anything that
occurred in Mumin’s vehicle on the occasions that people were observed getting
into the vehicle with him and driving around the b1ock. Mayo testified that on June
16, he did not see Mumin commit any traffic violation on the way to the parking
lot, but once Mumin exited his vehicle and entered the passenger side of the
minivan, Mayo believed that a narcotics transaction was occurring in the minivan.
Mayo testified that he did not ask or receive any consent to search either vehicle.
Cronin testified as to much of the same information as Mayo explained
above, including that as Cronin approached the car, in plain clothing, but with his
sidearm on his hip and badge around a lanyard on his neck, he observed Mumin
move his hand and quickly shove it behind his back. Cronin testified that he was
concerned for his safety as he believed that Mumin could either have had a weapon
behind his back or was trying to hide or destroy narcotics. As Cronin reached for
Mumin, he observed his hand relax and open from the previously clenched position
and three balls of tinfoil fall on the seat where Mumin’s hand had been. Cronin
also testified that the female driver of the minivan reported that she had, on several
occasions in the preceding 2 months, purchased crack cocaine from Mumin.
Thereafter, the district court overruled both of Mumin’s motions to suppress.
The district court found that Mayo and Cronin had reasonable suspicion that
criminal activity was occurring, specifically, the delivery of narcotics, when the
officers parked behind the minivan in the parking lot. The district court found that
Mumin’s behavior of reaching behind his back did not dispel the suspicion and
Cronin was justified in grabbing Mumin and removing him from the minivan to
protect himself or to prevent the destruction of evidence. The court further
determined that the officers did not have to get a warrant before reaching into the
minivan to retrieve and open the tinfoil packets, that Mumin had no right to
6

privacy in the minivan and had abandoned the foil packets. The district court found
that even if Mumin’s circumstances did not apply to the right to privacy or
abandonment arguments, under the automobile exception, no warrant was required.
Thereafter, a bench trial was held on stipulated facts. Mumin objected to the
submission of the testimony by Mayo and Cronin, and all related exhibits, as the
exhibits related to his motions to suppress, which objections were all overruled by
the district court. The facts stipulated to were the following: that three rocks of
crack cocaine were found in the minivan, 18 rocks of crack cocaine were found in
Mumin’s vehicle, the chain of custody was maintained for those 21 items, and that
the events occurred in Lancaster County, Nebraska. The district court found
beyond a reasonable doubt that Mumin did knowingly or intentionally possess a
controlled substance, specifically, crack cocaine, on the date alleged in the
information in Lancaster County, Nebraska.
Once the presentence investigation report was completed, at an enhancement
and sentencing hearing, the district court received evidence of several prior felony
convictions of Mumin and determined that Mumin was a habitual criminal. The
district court sentenced Mumin to 10 years’ to 20 years’ imprisonment.
B.

Direct Appeal

Mumin appealed his conviction and sentence to the Nebraska Court of
Appeals. (Filing No. 1.) In a brief prepared by counsel, Mumin argued that the trial
court erred when it (1) overruled Mumin’s motions to suppress and admitted the
evidence obtained therefrom, and (2) imposed an excessive sentence. (Filing No.
28-7.) In his pro se brief, Mumin argued that the trial court erred when it (1)
allowed “the police to testify concerning out-of-court statements made by
witnesses, without establishing on the record as to whether [Mumin] waived his
confrontation rights”; (2) found that he did not have standing to challenge the stop
7

and seizure; (3) prosecuted him in violation of due process; and (4) found facts that
increased his sentence, in violation of Alleyne v. United States, 133 S. Ct. 2151
(2013). (Filing No. 28-8.) Mumin argued, in both briefs, that his trial counsel was
ineffective on multiple grounds. (Filing No. 28-7; Filing No. 28-8.)
The Nebraska Court of Appeals rejected Mumin’s claims of trial court error
and determined that the record was insufficient to review his claims of ineffective
assistance of trial counsel. (Filing No. 28-4.) Because there was no Fourth
Amendment violation, the court concluded that the trial court properly overruled
Mumin’s motions to suppress. (Id. at CM/ECF pp. 8-18.) The court also
determined that Mumin’s right to confrontation had not been violated and that
there was nothing in the record to support his claim that the State prosecuted him
in violation of due process. (Id. at CM/ECF pp. 18-21.) The court concluded that
Mumin’s sentence was not excessive and that there was no Alleyne violation. (Id.
at CM/ECF pp. 21-26.) The court affirmed Mumin’s conviction and sentence. (Id.
at CM/ECF p. 28.) Thereafter, Mumin and his counsel filed petitions for further
review. (Filing No. 28-11; Filing No. 28-12.) The Nebraska Supreme Court denied
both petitions. (Filing No. 28-1.)
C.

Postconviction Action

Mumin filed a motion for postconviction relief and supplemental pleadings
to his motion in the state district court. (Filing No. 28-20 at CM/ECF pp. 2-17, 2327, 40-42.) Mumin alleged numerous claims of trial court error, ineffective
assistance of trial counsel, and ineffective assistance of appellate counsel. (Id.) The
state district court denied Mumin postconviction relief without an evidentiary
hearing. (Filing No. 37-1.)
Mumin appealed the state district court order to the Nebraska Court of
Appeals. (Filing No. 28-2.) The court noted that, although Mumin assigned eleven
8

assignment of errors, he only specifically assigned and argued that he was entitled
to an evidentiary hearing: (1) for the trial court failing to be in compliance with
Neb. Rev. Stat. § 27-804 (Reissue 2008); (2) because the trial court lacked
personal and subject matter jurisdiction; and (3) for the trial court failing to follow
the United States Supreme Court case of Melendez-Diaz v. Massachusetts, 129 S.
Ct. 2527 (2009), regarding the offer of the affidavit of a lab technician. (Filing No.
28-5 at CM/ECF p. 4.) The court also noted that Mumin only specifically assigned
and argued that his trial and appellate were ineffective: (1) by not objecting to the
State failing to give notice that it was offering hearsay statements of several
witnesses, and (2) for failing to discover the identity of the confidential informant.
(Id.) Accordingly, the court refused to address Mumin’s remaining assignments of
error, as well as his argument regarding an impartial judge because it was not
specifically assigned. (Id. at CM/ECF p. 5.) (citing State v. Filholm, 848 N.W.2d
571 (Neb. 2014) (an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error to be considered by
an appellate court)).
The court found Mumin’s assertion that the trial court lacked personal and
subject matter jurisdiction wholly without merit because nothing in the record
supported it. (Id. at CM/ECF p. 7.) Regarding the alleged error under § 27-804, the
court disagreed and found that Mumin failed to point out exactly which testimony
he took issue with, that there was no objection to any testimony, and that the case
proceeded as a stipulated bench trial with no live testimony. (Id. at CM/ECF pp. 79). The court found that this alleged error was an attempt by Mumin to relitigate
the confrontation issue that it determined was without merit on direct appeal. (Id. at
CM/ECF p. 9.) Regarding the trial court’s alleged failure to follow Melendez-Diaz,
the court determined that this alleged error was another attempt by Mumin to
relitigate the confrontation issue. (Id. at CM/ECF pp. 9-12.) The court found no
merit to Mumin’s ineffective assistance of appellate counsel claims because he
raised the issues on direct appeal. (Id. at CM/ECF p. 12.) It determined that the
9

record affirmatively refuted his ineffective assistance of trial counsel claims. (Id. at
CM/ECF pp. 12-15.) The court affirmed the state district court’s order. (Id. at
CM/ECF p. 15.) Mumin filed a petition for further review. (Filing No. 28-16.) The
Nebraska Supreme Court denied the petition. (Filing no. 28-2.)
D.

Habeas Corpus Action

Mumin filed his initial and supplemental habeas petitions. (Filing No. 1;
Filing No. 14.) In accordance with the court’s progression order, Respondent filed
an answer, brief, and the relevant state court records. (Filing Nos. 28, 37, 38, 39.)
Mumin filed a brief in support of his petitions. (Filing No. 41.) Respondent filed a
reply brief. (Filing No. 43.) This matter is fully submitted for disposition.
II. STANDARDS OF REVIEW
A.

Exhaustion Requirement
As set forth in 28 U.S.C. § 2254:
(b)(1)

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that–
(A)

the applicant has exhausted the remedies available in the
courts of the State; or

(B)

(i)

there is an absence of available State
corrective process; or

(ii)

circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).
10

The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts . . . state prisoners
must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s
established appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore
present the substance of each federal constitutional claim to the state courts before
seeking federal habeas corpus relief. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented in an appeal to the
Nebraska Court of Appeals, and then in a petition for further review to the
Nebraska Supreme Court if the Court of Appeals rules against the petitioner. See
Akins v. Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005). “In order to fairly present a
federal claim to the state courts, the petitioner must have referred to a specific
federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue in
a claim before the state courts.” Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir.
2007) (internal citation and quotation marks omitted).
A state prisoner must therefore “fairly present” the substance of each federal
constitutional claim to the state courts before seeking federal habeas corpus relief.
In Nebraska, “one complete round” ordinarily means that each § 2254 claim must
have been presented in an appeal to the Nebraska Court of Appeals, and then in a
petition for further review to the Nebraska Supreme Court if the Court of Appeals
rules against the petitioner. See Akins v. Kenney, 410 F.3d 451, 454–55 (8th Cir.
2005).
11

Moreover, where “no state court remedy is available for the unexhausted
claim - that is, if resort to the state courts would be futile - then the exhaustion
requirement in § 2254(b) is satisfied, but the failure to exhaust ‘provides an
independent and adequate state-law ground for the conviction and sentence, and
thus prevents federal habeas corpus review of the defaulted claim, unless the
petitioner can demonstrate cause and prejudice for the default.’” Armstrong v.
Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (quoting Gray v. Netherland, 518 U.S.
152, 162 (1996)). Stated another way, if a claim has not been presented to the
Nebraska appellate courts and is now barred from presentation, the claim is
procedurally defaulted, not unexhausted. Akins, 410 F.3d at 456 n.1.
Under Nebraska law, “[a]n appellate court will not entertain a successive
motion for postconviction relief unless the motion affirmatively shows on its face
that the basis relied upon for relief was not available at the time the movant filed
the prior motion.” State v. Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally,
“[a] motion for postconviction relief cannot be used to secure review of issues
which were or could have been litigated on direct appeal.” Hall v. State, 646
N.W.2d 572, 579 (Neb. 2002). In such circumstances, where a Nebraska state court
rejects a claim on state procedural grounds, and issues a “‘plain statement’ that it is
rejecting petitioner's federal claim on state procedural grounds,” a federal habeas
court is precluded from “reaching the merits of the claim.” Shaddy v. Clarke, 890
F.2d 1016, 1018 (8th Cir. 1989). However, the state court procedural decision must
“rest [ ] on independent and adequate state procedural grounds.” Barnett v. Roper,
541 F.3d 804, 808 (8th Cir. 2008) (quotation omitted). “A state procedural rule is
adequate only if it is a firmly established and regularly followed state practice.” Id.
(quotation marks omitted).

12

B.

Standard Under 28 U.S.C. § 2254(d)

When a state court has adjudicated a habeas petitioner’s claim on the merits,
there is a very limited and extremely deferential standard of review both as to the
law and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal
court may grant a writ of habeas corpus if the state court’s decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A
state court acts contrary to clearly established federal law if it applies a legal rule
that contradicts the Supreme Court’s prior holdings or if it reaches a different result
from one of that Court’s cases despite confronting indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 405-406 (2000). Further, “it is not enough for
[the court] to conclude that, in [its] independent judgment, [it] would have applied
federal law differently from the state court; the state court’s application must have
been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.
2006).
With regard to the deference owed to factual findings of a state court’s
decision, Section 2254(d)(2) states that a federal court may grant a writ of habeas
corpus if a state court proceeding “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must
presume that a factual determination made by the state court is correct, unless the
petitioner “rebut[s] the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
As the Supreme Court noted, “[i]f this standard is difficult to meet, that is
because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
deference due state court decisions “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
13

decision conflicts with [Supreme Court] precedents.” Id. However, this high degree
of deference only applies where a claim has been adjudicated on the merits by the
state court. See Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (“[A]s the
language of the statute makes clear, there is a condition precedent that must be
satisfied before we can apply the deferential AEDPA standard to [the petitioner’s]
claim. The claim must have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on
the merits, finding that:
AEDPA’s requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a well-articulated or
even a correct decision by a state court. Accordingly, the
postconviction trial court’s discussion of counsel’s performance–
combined with its express determination that the ineffectiveassistance claim as a whole lacked merit–plainly suffices as an
adjudication on the merits under AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation
marks and citations omitted).
III. DISCUSSION
A.

Claim One

Mumin claims that his 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.” In other words, Mumin claims that
his right to confrontation was violated because he could not confront the lab
14

analyst, the confidential informant, and “Mrs. Harris.” (See filing No. 1 at
CM/ECF pp. 5, 16.)
The Nebraska Court of Appeals effectively disposed of all four subparts of
Claim One in Mumin’s direct appeal when it analyzed his assertion that the trial
court erred when it allowed “the police to testify concerning out-of-court
statements made by witnesses, without establishing on the record as to whether
[Mumin] waived his confrontation rights.” (See filing No. 28-4 at CM/ECF pp. 1820.)1 The court emphasized that Mumin proceeded with a stipulated bench trial,
that there was no live testimony adduced, that there was nothing in the record
indicating that Mumin was denied the right to present evidence, and that Mumin
did not cite “to any specific instance where his right to confrontation was
violated.” (Id.)
The relevant legal framework is as follows.2 The Sixth Amendment’s
Confrontation Clause confers upon the accused “[i]n all criminal prosecutions, . . .

1

Liberally construed, Mumin raised all four subparts of Claim One in his
direct appeal pro se petition for further review to the Nebraska Supreme Court.
(See filing No. 28-12.)
2

In its decision, the court cited to Nebraska case law pertaining to an
accused’s right to confront live witnesses during cross-examination. Here, the
parties did not present live testimony. The reasoning of the court, however,
suggests that it found Mumin’s assigned error without merit because he proceeded
with a stipulated bench trial, which would be consistent with the legal framework
cited herein. See Early v. Packer, 537 U.S. 3, 8 (2002) (as long as the reasoning or
result of the state court decision does not contradict relevant Supreme Court
precedent, AEDPA's general rule of deference applies). However, to the extent the
court’s use of the wrong framework “constitute[d] error under the ‘contrary to’
prong of § 2254(d)(1),” see Brian R. Means, Federal Habeas Manual, §§ 3:49-3:50
(2016); Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) (en banc), a de novo review
under the proper legal framework shows that Mumin intentionally and knowingly
15

the right . . . to be confronted with the witnesses against him.” Bullcoming v. New
Mexico, 564 U.S. 647, 658 (2011). That right, however, like with other
constitutional rights, may be waived. See U.S. v. Carlson, 547 F.2d 1346 (8th Cir.
1976) (citing Brookhart v. Janis, 384 U.S. 1, 4 (1966)). To constitute a valid
waiver there must be “an intentional relinquishment or abandonment of a known
right or privilege” by the accused. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A
defendant can waive his confrontation rights by, among other things, stipulating to
the admission of evidence. See Carlson, supra at 1358 (citations to U.S. Supreme
Court precedent omitted). Mumin’s right to confrontation was not violated,
because he intentionally and knowingly proceeded with a stipulated bench trial on
exhibits, with no live testimony, over his objections relating to his motions to
suppress. (See filing No. 28-23 at CM/ECF pp. 43-54; filing No. 28-27.) Mumin is
entitled to no relief on Claim One.
B.

Claim Two

Mumin claims that he was denied effective assistance of trial counsel
because his 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 his right to confront witnesses; (5) failed to move to exclude police

waived his right to confrontation by proceeding with a stipulated bench trial. See
U.S. v. Lee, 374 F.3d 637 (8th Cir. 2004).

16

officer testimony regarding statements made by non-testifying witnesses; and (6)
failed to move to exclude the lab analyst’s report.
Subparts (1) and (3) are procedurally defaulted because Mumin did not
specifically assign and argue them in his postconviction appeal to the Nebraska
Court of Appeals, contrary to a firmly established and regularly followed state
practice. (See filing No. 28-5 at CM/ECF p. 5.) (citing State v. Filholm, 848
N.W.2d 571 (Neb. 2014) (an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error to be considered by
an appellate court)). Subpart (2) is procedurally defaulted because Mumin did not
raise it in his postconviction appeal petition for further review to the Nebraska
Supreme Court. (See filing No. 28-16.) Mumin cannot raise the issue in a
successive postconviction motion. See Ortiz, supra.
With regard to subparts (4)-(6), Mumin claims that his trial counsel was
ineffective for failing to object on hearsay and confrontation grounds to police
officer testimony (adduced at the suppression hearing, the transcripts of which
were received at the stipulated bench trial) about what the confidential informant
and Mrs. Harris told them and to the lab analyst’s report. (Filing No. 1 at CM/ECF
p. 17.) Mumin arguably raised subparts (4)-(6) properly throughout the
proceedings3 until his postconviction appeal petition for further review to the
Nebraska Supreme Court. (See filing No. 28-8 at CM/ECF pp. 5-9; filing No. 2820 at CM/ECF pp. 8-10; filing No. 28-5 at CM/ECF pp. 12-15; filing No. 28-16 at
CM/ECF pp. 7-10.)

3

Mumin did not raise these ineffective assistance of trial counsel claims in
his direct appeal petition for further review to the Nebraska Supreme Court, (See
filing No. 28-11; filing No. 28-12), however the Nebraska Court of Appeals found
that the record was insufficient to address any of Mumin’s ineffective assistance of
trial counsel claims on direct appeal (Filing No. 28-4 at CM/ECF pp. 26-28).
17

Mumin argued in his postconviction appeal petition for further review only
that his trial counsel was ineffective for failing to object to the lab analyst’s report,
not to the police officer testimony. (See filing No. 28-16 at CM/ECF pp. 7-10.)
Nevertheless, the decision of the Nebraska Court of Appeals effectively disposed
of subparts (4)-(6) in Mumin’s postconviction appeal. Mumin contended to the
court that “without the hearsay testimony and identity of the confidential
informant, Harris, and the laboratory technician, the evidence would have been
insufficient to support his conviction.” (Filing No. 28-5 at CM/ECF p. 14.) The
court determined that Mumin did not show any prejudice or deficient performance
by his trial counsel. (Id.) It found that Mumin’s trial counsel “actively sought to
suppress the evidence against him,” and “it was from that evidence that Mumin
was convicted.” (Id.)
The two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984)
governs the merits of an ineffective assistance of counsel claim. Strickland requires
that a petitioner demonstrate both that his counsel’s performance was deficient,
and that such deficient performance prejudiced the petitioner's defense. Id. at 687.
The first prong of the Strickland test requires that the petitioner demonstrate that
his attorney failed to provide reasonably effective assistance. Id. at 687-88. The
second prong requires the petitioner to demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Judicial scrutiny of counsel’s performance must be
highly deferential, and a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Knowles
v. Mirzyance, 556 U.S. 111, 121-123 (2009). In the habeas context, there is doubly
deferential standard of review because Strickland is a general standard, and habeas
review by the very nature of the remedy requires deference to the separate
sovereign's decision. Id.

18

Mumin has not shown that the Nebraska Supreme Court’s decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or that the court reached “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” 28 U.S.C. § 2254(d)(2). Mumin intentionally and
knowingly proceeded with a stipulated bench trial with exhibits and no live
testimony, giving his trial counsel no reason to object to the evidence adduced at
the stipulated bench trial beyond renewing Mumin’s motions to suppress. Further,
Mumin cannot show “a reasonable probability . . . the result of the proceeding
would have been different,” because if his trial counsel had objected, then either
(1) the State would have called its witnesses at an actual trial and established
Mumin’s guilt, or (2) the testimony of Mayo, an experienced narcotics
investigator, that he witnessed Mumin in possession of foil objects containing
crack cocaine would have supported Mumin’s conviction. (See filing No. 28-24 at
CM/ECF pp. 72-73, 75-76.) Mumin is entitled to no relief on Claim Two.
C.

Claim Three

Mumin claims that he 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.
Claim Three is procedurally defaulted. Subpart (1) is procedurally defaulted
because Mumin did not specifically assign and argue it in his postconviction
appeal. See Filholm, supra. He also failed to raise it in his postconviction appeal
petition for further review to the Nebraska Supreme Court. (See filing No. 28-16.)
Subpart (2) is procedurally defaulted because Mumin either did not specifically
assign and argue the claims in his postconviction appeal to the Nebraska Court of
19

Appeals, or if he did, he did not raise the claims in his postconviction appeal
petition for further review to the Nebraska Supreme Court. He cannot raise the
them in a successive postconviction motion. See Ortiz, supra. Mumin is entitled to
no relief on Claim Three.
D.

Claim Four

Mumin claims that he was denied (1) the right to a fair trial and (2) an
impartial judge. Mumin argues that he was denied the right to a fair trial because
the trial court admitted inadmissible hearsay evidence in violation of § 27-804 and
due process. (Filing No. 1 at CM/ECF pp. 10, 18.)
Subpart (1) is an error of state law claim. As the Supreme Court has longheld, “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 68
(1991). In addition, although a habeas petitioner may characterize claims as due
process violations, “errors of state law cannot be repackaged as federal errors
simply by citing the Due Process Clause.” Carson v. Director of the Iowa Dep’t of
Corr. Servs., 150 F.3d 973, 975 (8th Cir. 1998) (quotation omitted). Accordingly,
Subpart (1) is not cognizable in a federal habeas action. Even if the court did not
construe subpart (2) as an error of state law claim, it is without merit for the same
reason as Claim One: Mumin proceeded with a stipulated bench trial with no live
witnesses. Subpart (2) is procedurally defaulted because Mumin could have raised
it on direct appeal and did not. See Hall, supra. Mumin is entitled to no relief on
Claim Four.
E.

Claim Five

Mumin claims that he was subjected to an illegal search and seizure. The
Supreme Court has held that Fourth Amendment claims are not cognizable in a
20

federal habeas action unless petitioner did not receive a full and fair opportunity to
litigate the Fourth Amendment claim in the state courts. Stone v. Powell, 428 U.S.
465, 494 (1976). Because the record shows that Mumin received a full and fair
opportunity to litigate his Fourth Amendment claim in the state courts, Claim Five
is not cognizable.
F.

Claim Six

Mumin claims that he was vindictively prosecuted. Claim Six is
procedurally defaulted. Although Mumin raised this claim in his direct appeal to
the Nebraska Court of Appeals, he failed to raise it in his petition for further
review to the Nebraska Supreme Court. (See filing No. 28-11; filing No. 28-12.);
see also, Hall, supra. Mumin is entitled to no relief on Claim Six.
G.

Claim Seven

Mumin claims that his sentence is void and unconstitutional because the
State failed to show that he had counsel or waived counsel for each of his prior
convictions. Claim Seven is procedurally defaulted. Mumin failed to raise this
claim on direct appeal. See Hall, supra. Mumin is entitled to no relief on Claim
Seven.
H.

Mumin’s Arguments

Mumin repeats many of his arguments from his initial and supplemental
habeas petitions in his brief. (Filing No. 41.) In an attempt to excuse his
procedurally defaulted ineffective assistance of counsel claims, Mumins directs the
court to the United States Supreme Court’s decision in Martinez v. Ryan, 132 S.Ct.
1309 (2012). (Id. at CM/ECF pp. 1-2, 13.) He also mentions the “actual innocence”
exception. (Id. at CM/ECF p. 6.)
21

Assuming, without deciding, that Martinez applies to federal habeas corpus
cases arising from Nebraska convictions, the holding in Martinez does nothing to
excuse the procedural default of Mumin’s claims. In Martinez, the Court reasoned
that a federal habeas court should “hear a claim of ineffective assistance of trial
counsel when an attorney’s errors (or the absence of an attorney) caused a
procedural default in an initial-review collateral proceeding ....“ Martinez, 132
S.Ct. at 1318 (emphasis added). Here, the default of Mumin’s ineffective
assistance of trial counsel claims occurred, not on initial review (i.e. in his
postconviction motion), but when he failed to properly raise them in his
postconviction appeal to the state appellate courts. See Williams v. Kenney, 2014
WL 5107145 (D. Neb. 2014). Further, Martinez does not apply to ineffective
assistance of appellate counsel claims. See Dansby v. Hobbs, 766 F.3d 809 (8th
Cir. 2014).
Finally, Mumin has not satisfied the requisite elements to excuse his
procedurally defaulted claims through any “gateway” claim of actual innocence.
To obtain review of an otherwise procedurally barred claim, a petitioner must
satisfy a two-part test: (1) the “allegations of constitutional error must be supported
with new reliable evidence not available at trial”; and (2) “it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence.”
Nash v. Russell, 807 F.3d 892, 898-99 (8th Cir. 2015) (citations omitted). Mumin
does nothing more than make legal argument. (See filing No. 41 at CM/ECF pp. 67.) “The actual innocence exception is concerned with claims of actual, not legal,
innocence.” Pitts v. Norris, 85 F.3d 348, 350 (8th Cir. 1996).
IV. MOTION FOR COUNSEL
Mumin has renewed his request for counsel. (Filing No. 45.) “[T]here is
neither a constitutional nor statutory right to counsel in habeas proceedings;
22

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 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). Having considered these factors, Mumin’s
request for counsel is denied.
V. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on a petition for writ of habeas
corpus under § 2254 unless granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be
granted unless the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. Daniel, 529
U.S. 473, 484 (2000).
In this case, Mumin has failed to make a substantial showing of the denial of
a constitutional right. The court is not persuaded that the claims raised in Mumin’s
petitions are debatable among reasonable jurists, that a court could resolve the
claims differently, or that the claims deserve further proceedings. Accordingly, the
court will not issue a certificate of appealability in this case.

23

IT IS THEREFORE ORDERED that:
1.
Mumin’s Petition for Writ of Habeas Corpus (Filing No. 1) and
Supplemental Writ of Habeas Corpus (Filing No. 14) are dismissed with prejudice.
2.
denied.

Mumin’s Request for Appointment of Counsel (Filing No. 45) is

3.
Mumin’s Motion for Summary Judgment (Filing No. 46) and
subsequent requests (Filing No. 49; Filing No. 50) are denied.
4.

The court will not issue a certificate of appealability.

5.
The court will enter a separate judgment in accordance with this
Memorandum and Order.
Dated this 24th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

24