Mumin v. Gage

Filing 77

MEMORANDUM AND ORDER - Petitioner's Request for Relief under Fed. R. Civ. P. 60(b) (filing no. 73 ), Supplemental Request for Relief under Rule 60(b) (filing no. 74 ), and Amended Motion for Relief from Judgment (filing no. 76 ) are denied. P etitioner's Request for Preliminary Injunction/Restraining Order (filing no. 75 ) is denied as moot. The court will not issue a certificate of appealability in this matter. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

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

4:16CV3033

vs.
MEMORANDUM
AND ORDER

SCOTT FRAKES,
Respondent.

This closed federal habeas matter under 28 U.S.C. § 2254 is before the court
on Petitioner Dukhan Mumin’s (“Petitioner” or “Mumin”) request for postjudgment relief under Rule 60(b) of the Federal Rules of Civil Procedure (filing
no. 73), supplemental request for relief under Rule 60(b) (filing no. 74), amended
motion for relief from judgment (filing no. 76), and request for a preliminary
injunction (filing no. 75). 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 request for a
preliminary injunction also will be denied.
I. BACKGROUND
On March 24, 2017, the court dismissed Mumin’s Petition for Writ of
Habeas Corpus (filing no. 1) and Supplemental Writ of Habeas Corpus (filing no.
14) which challenged his 2013 conviction for possession of a controlled substance
(crack cocaine) with a habitual criminal enhancement. (Filing No. 52.) The court
determined that several of Mumin’s claims were procedurally defaulted and
Mumin failed to show cause and prejudice for the default of his claims or that the
court’s failure to consider his claims would result in a fundamental miscarriage of
justice. (Id. at CM/ECF pp.14–22.) For those claims that were properly exhausted,
the court determined either that the claims were not cognizable in a federal habeas

action or that Mumin was not entitled to relief on the merits. (Id.) The court
declined to issue a certificate of appealability, and Mumin prosecuted an appeal to
the Eighth Circuit Court of Appeals which was dismissed. (See Filing No. 68.)
On April 5, 2018, Mumin filed a request for relief under Rule 60(b) followed
by a supplemental request on May 25, 2018. (Filing No. 73; Filing No. 74.)
Liberally construed, summarized and condensed, Mumin alleges that his sentence
is void because the habitual offender enhancement he received pursuant to Neb.
Rev. Stat. § 29-2221 violates due process and the ex post facto clause. Mumin
argues that he was not given notice 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 until the time of sentencing and the failure to include such facts
in the information voids the judgment against him for lack of jurisdiction. (See
Filing No. 75.)
Mumin later filed an amended motion for relief from judgment on July 20,
2018, challenging the jurisdiction of this court to adjudicate his rights under the
prior habeas action in this case. (Filing No. 76.) 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 asks the court to reopen his
habeas case and determine the jurisdictional questions involved.
II. DISCUSSION
A. Standard for Review of 60(b) Motion in Closed Habeas Proceeding
A 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
2

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.
As the 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).
B. Petitioner’s Motions
Mumin’s motions assert that his conviction is void on the following
grounds: (1) Neb. Rev. Stat. §§ 29-2221, 83-1,107, and 83-1,110 are
3

unconstitutional; (2) he was not given notice 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 until the time of sentencing in violation of due process;
(3) the information failed to set forth all facts essential to punishment since it did
not provide notice that Mumin would not receive good time credit towards his
mandatory minimum habitual offender sentence; and (4) the imposition of the
habitual offender enhancement without notice that Mumin would not receive good
time credit constitutes an ex post facto law.
The court concludes that the grounds Mumin raises constitute claims
because each ground asserts a basis for relief from Mumin’s state conviction. See
Gonzalez, 545 U.S. at 532. As a result, Mumin’s motion must be treated as a
second or successive petition under § 2254. See Ward, 577 F.3d at 933. Mumin is
limited to one habeas corpus petition in this court per conviction,1 unless the
Eighth Circuit Court of Appeals grants him permission to file a second or
successive habeas corpus petition relating to the same conviction. See 28 U.S.C. §
2244(b). Because he did not obtain advance authorization from the Eighth Circuit
Court of Appeals to file the instant motion, the court will dismiss Mumin’s motion
pursuant to 28 U.S.C. § 2244(b).2
1

The court notes that Mumin has filed four other petitions challenging this same
conviction, which were all dismissed as successive. See 4:17CV3164, 4:17CV3169,
4:18CV3015, and 8:18CV102.
2

(b)(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless-(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and

4

In addition, to the extent Mumin’s amended motion (filing no. 76) seeks
relief under Fed. R. Civ. P. 60(b)(4) on the basis that this court lacked jurisdiction
and the prior rulings of this court were void because the state court criminal
judgment is void, Mumin’s motion is frivolous. “It is well established that a Rule
60(b) motion may not be used to ‘relieve a party from operation of a judgment of
conviction or sentence in a criminal case.’” United States v. Shenett, No. CRIM.A.
05-431 MJD, 2015 WL 3887184, at *2 (D. Minn. June 24, 2015) (quoting United
States v. Hunt, No. 4:07–CR–121, 2008 WL 4186258, at *1 (E.D.Mo. Sept. 5,
2008) (holding that a defendant’s Rule 60(b)(4) motion to vacate criminal
judgment “is frivolous because a prisoner may not attack the legality of his
conviction through Rule 60(b)”)). Rule 60(b)(4) “is a rule of civil procedure and
thus not available to challenge criminal judgments, nor may it be used to challenge
state judgments of any sort in federal court.” Sherratt v. Friel, 275 F. App’x 763,
767 n.1 (10th Cir. 2008).
Mumin’s assertion that this court lacked jurisdiction because the state court
criminal judgment is void is wholly without merit. I will not allow Mumin to do
indirectly what he cannot do directly—that is to use Rule 60(b)(4) to attack a state
criminal conviction through the guise of attacking federal jurisdiction of an adverse
ruling in an action Mumin brought himself pursuant to 28 U.S.C. § 2254.

(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.
28 U.S.C. § 2244(b).

5

III. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of
habeas corpus under § 2254 unless he is granted a certificate of appealability. 28
U.S.C. § 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The
standards for certificates (1) where the district court reaches the merits or (2) where
the district court rules on procedural grounds are set forth in Slack v. McDaniel,
529 U.S. 473, 484–85 (2000). The court has applied the appropriate standard and
determined Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s Request for Relief under Fed. R. Civ. P. 60(b) (filing no.
73), Supplemental Request for Relief under Rule 60(b) (filing no. 74), and
Amended Motion for Relief from Judgment (filing no. 76) are denied.
2.
Petitioner’s Request for Preliminary Injunction/Restraining Order
(filing no. 75) is denied as moot.
3.

The court will not issue a certificate of appealability in this matter.

Dated this 20th day of November, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

6