Mumin v. Hansen

Filing 9

MEMORANDUM AND ORDER - that Petitioner's habeas corpus petition (filing no. 1 ) is dismissed with prejudice. The court will not issue a certificate of appealability in this matter. A separate judgment will be entered in accordance with this order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

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

8:18CV102

vs.
MEMORANDUM
AND ORDER

BRAD HANSEN,
Respondent.

This matter is before the court on initial review of Petitioner Dukhan
Mumin’s Petition for Writ of Habeas Corpus. (Filing No. 1.) Mumin, a frequent
filer, has recently filed three other habeas petitions in 4:17CV3164, 4:17CV3169,
and 4:18CV3015, and I take judicial notice of the records in those cases. In
4:17CV3169, I determined that Mumin’s petition was a second or successive
habeas petition and dismissed the petition with prejudice. (See Filing No. 12, Case
No. 4:17CV3169.) I now dismiss this petition because it too is a second or
successive habeas corpus petition that has not been authorized by the Eighth
Circuit Court of Appeals.
The statutory prohibition against successive petitions by state prisoners is
codified in 28 U.S.C. § 2244, which provides in relevant part:
(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
(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).
In Magwood v. Patterson, 561 U.S. 320, 332–33 (2010), the United States
Supreme Court held that “the phrase ‘second or successive’ must be interpreted
with respect to the judgment challenged.” In other words, the phrase “second or
successive” applies to entire habeas petitions, and not to individual claims in those
petitions. Id.
Here, Mumin challenges the habitual offender enhancement he received as
part of his 2013 conviction in the District Court of Lancaster County, Nebraska,
pursuant to Neb. Rev. Stat. § 29-2221. Liberally construed, summarized and
condensed, Mumin alleges that his sentence is void because Neb. Rev. Stat. § 292221 violates due process, the ex post facto clause, and his right to trial by jury by
allowing a judge, instead of a jury, determine the existence of a fact essential to his
punishment. See Ring v. Arizona, 536 U.S. 584 (2002).

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This court’s records reflect that Mumin’s habeas corpus petition is
successive. Mumin unsuccessfully challenged this same judgment of conviction in
earlier federal habeas corpus litigation. (See Mumin v. Frakes, Case No.
4:16CV3033 (D. Neb.) (dismissing petition for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254 with prejudice)). Thus, Mumin would be required to
seek the permission of the Court of Appeals to commence this second action. 28
U.S.C. § 2444(b)(2) & (3)(A). He has not done so, and this matter must be
dismissed. Burton v. Stewart, 549 U.S. 147, 152 (2007) (the district court lacked
jurisdiction to entertain habeas petition since prisoner did not obtain an order
authorizing him to file second petition).
Finally, 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). I have applied the appropriate standard and
determined that Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that Petitioner’s habeas corpus petition
(filing no. 1) is dismissed with prejudice. The court will not issue a certificate of
appealability in this matter. A separate judgment will be entered in accordance
with this order.
Dated this 30th day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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