Mumin v. Frakes
298 Neb. 381
| Neb. | 2017Background
- Petitioner Dukhan Mumin, convicted of possession of cocaine and sentenced as a habitual criminal, filed a pro se habeas petition in Johnson County and an application/affidavit to proceed in forma pauperis (IFP).
- The district court denied Mumin’s initial IFP application, finding his habeas claims frivolous. Mumin appealed that denial (first appeal) and filed an IFP application for the appeal; the district court again denied IFP on appeal.
- Mumin then filed a second appeal from the district court’s order denying IFP on appeal (second appeal). Both appeals were docketed in the appellate courts.
- The Nebraska Court of Appeals applied the State v. Carter procedure, affirmed denial of IFP on appeal, and held the first appeal under submission for payment of the docket fee.
- The Nebraska Supreme Court granted further review to clarify the correct procedure for successive IFP applications/appeals and to decide whether Mumin’s habeas claims were frivolous.
- The Supreme Court concluded Glass v. Kenney, not Carter, governs this procedural posture, reversed the Court of Appeals as to the second appeal (vacating the district court’s denial of IFP on appeal), and affirmed the district court’s denial of Mumin’s original IFP application as frivolous.
Issues
| Issue | Mumin's Argument | Frakes (State) Argument | Held |
|---|---|---|---|
| Whether an appellate court has jurisdiction over a second appeal challenging denial of an IFP application on appeal | Timely notice plus poverty affidavit suffices to invoke appellate jurisdiction | Same: appellate jurisdiction exists only if jurisdictional requirements met | Appellate jurisdiction exists upon timely notice and proper IFP application/affidavit |
| Whether the trial court may deny an IFP application to proceed on appeal when the denial would block interlocutory review of an earlier IFP denial | Denial improper because it prevents statutory interlocutory review | Trial court may deny IFP if claims are frivolous or applicant has funds | Where denial of IFP on appeal would interfere with statutory right to interlocutory review of an earlier IFP denial, trial court lacked authority to issue that denial (Glass governs) |
| Whether the Court of Appeals should apply Glass v. Kenney or State v. Carter to successive IFP appeals | Glass applies because first appeal was from an order denying IFP to commence a case | Carter applies generally where first appeal is from final judgment | Glass applies when first appeal challenges a denial of IFP to commence a case; Carter applies when first appeal is from a final judgment |
| Whether Mumin’s habeas claims are frivolous such that the original IFP denial was proper | Habeas petition alleges sentence void for insufficient evidence at sentencing; relies on Berumen | State: insufficiency does not render sentence void; record showed evidence for enhancement | Habeas claim frivolous; district court correctly denied the original IFP application |
Key Cases Cited
- Glass v. Kenney, 268 Neb. 704 (Neb. 2004) (trial court may not deny IFP on appeal when that denial would obstruct statutory interlocutory review of an earlier IFP denial)
- State v. Carter, 292 Neb. 16 (Neb. 2015) (procedure for successive IFP appeals when first appeal is from a final order or judgment)
- Jacob v. Schlichtman, 261 Neb. 169 (Neb. 2001) (recognizing statutory right to interlocutory appellate review of IFP denials)
- Berumen v. Casady, 245 Neb. 936 (Neb. 1994) (discussed regarding when an enhanced sentence may be void on collateral attack)