Mumin v. Frakes
298 Neb. 381
| Neb. | 2017Background
- Mumin, convicted as a habitual criminal and sentenced to 10–20 years for cocaine possession, filed a pro se habeas corpus petition in the Johnson County District Court in March 2016.
- He filed an affidavit and application to proceed in forma pauperis (IFP) with the petition; the district court denied the IFP application as asserting frivolous legal positions.
- Mumin appealed that denial (first appeal) and simultaneously sought IFP status on appeal; the district court again denied IFP on appeal as frivolous.
- Mumin timely appealed the second IFP denial (second appeal); the Court of Appeals reviewed the appeals under the procedure from State v. Carter and affirmed the denial of IFP on appeal while holding the first appeal under submission for payment of the docket fee.
- The Nebraska Supreme Court granted further review to clarify the proper procedure for successive IFP applications/appeals and to decide whether Mumin’s habeas claim was frivolous.
- The Supreme Court concluded the Court of Appeals applied the wrong procedural framework (should have applied Glass v. Kenney), reversed the Court of Appeals on the second-appeal ruling, vacated the second IFP denial, and affirmed the district court’s original denial of IFP for the habeas petition as frivolous.
Issues
| Issue | Mumin's Argument | Frakes' Argument | Held |
|---|---|---|---|
| Whether the district court properly denied Mumin IFP to commence habeas (original IFP) | Mumin argued his sentence is void for insufficient evidence supporting habitual-offender enhancement | State argued the habeas claim is frivolous because insufficiency at sentencing does not render conviction/sentence void | Denial of original IFP affirmed; petition deemed frivolous |
| Whether the district court could deny IFP to pursue appellate review of the first IFP denial (second IFP) | Mumin sought IFP to obtain interlocutory review of the first denial | State defended district court’s denial as proper because petition frivolous | District court lacked authority to block interlocutory appellate review; second IFP denial vacated |
| Proper appellate procedure for successive IFP appeals | Mumin implicitly argued appeals should be heard consistent with Glass | State and Court of Appeals applied Carter procedure | Supreme Court held Glass governs when first appeal is from an IFP denial; Carter applies when first appeal is a final judgment |
| Whether appellate courts have jurisdiction over a successive IFP appeal filed with a poverty affidavit instead of paying docket fee | Mumin filed timely notice and poverty affidavit | State contended lack of docket fee defeated jurisdiction | Appellate jurisdiction exists upon timely notice and proper IFP affidavit; poverty affidavit substitutes for docket fee |
Key Cases Cited
- Glass v. Kenney, 268 Neb. 704 (2004) (IFP applicant has statutory right to interlocutory appellate review; trial court cannot deny IFP on appeal when that denial would block that right)
- State v. Carter, 292 Neb. 16 (2015) (procedure for successive IFP appeals when the first appeal is from a final judgment; appellate court may require payment of docket fee to proceed on the underlying appeal)
- Jacob v. Schlichtman, 261 Neb. 169 (2001) (recognizing statutory right to interlocutory appellate review of IFP denials)
- Berumen v. Casady, 245 Neb. 936 (1994) (discussed enhancement voidness analysis later limited by subsequent authority)
- Sanders v. Frakes, 295 Neb. 374 (2016) (holding that certain sentencing claims do not render convictions or sentences void for habeas relief)