Mumin v. Frakes
298 Neb. 381
| Neb. | 2017Background
- Mumin, a pro se habeas petitioner convicted as a habitual criminal, filed a habeas petition in Johnson County and an application/affidavit to proceed in forma pauperis (IFP). The district court denied the IFP application as frivolous.
- Mumin appealed that IFP denial (first appeal) and filed a separate IFP application to pursue the appeal; the district court again denied IFP on appeal as frivolous.
- Mumin then appealed the second denial (second appeal); both appeals were docketed and reached the Nebraska Court of Appeals, which applied the procedure from State v. Carter and affirmed the second denial while holding the first appeal under submission for payment of the docket fee.
- The Nebraska Supreme Court granted further review to clarify the proper procedures for successive IFP denials and appeals and to decide whether Mumin’s habeas petition was frivolous.
- The Supreme Court held that the Glass v. Kenney procedure (not Carter) governs successive appeals where the first appeal challenges an IFP denial to commence a case; it reversed the Court of Appeals as to the second appeal, vacated the district court’s denial of IFP on appeal, and affirmed the district court’s denial of the original IFP application as frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction over a second appeal from denial of IFP on appeal | Mumin argued timely notice plus poverty affidavit grants jurisdiction | State argued lack of docket fee defeats jurisdiction | Timely notice plus proper IFP affidavit gives appellate jurisdiction (Glass rule) |
| Whether district court may deny an IFP application to proceed on appeal when the denial would block statutorily authorized interlocutory review | Mumin: denial of IFP on appeal improperly bars his right to interlocutory review | State: trial court can deny IFP on appeal if petition is frivolous | Trial court lacks authority to deny IFP on appeal when that denial would interfere with statutory right to interlocutory appellate review; such orders must be vacated (Glass) |
| Whether Mumin’s habeas petition asserted frivolous legal positions (merits) | Mumin: sentence void due to insufficient evidence for habitual enhancement; relied on Berumen | State: record shows documentary evidence of priors and sentencing support; claim is meritless | Petition is frivolous; district court correctly denied the original IFP application to commence the habeas action |
| Whether Glass or Carter governs successive IFP appeals and related trial-court procedure when no prepayment of fees is required | Mumin implicitly relied on Glass posture | State/Ct. of Appeals applied Carter procedure | Glass governs when the first appeal is from an IFP denial to commence a case; Carter applies when first appeal is from a final judgment |
Key Cases Cited
- Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004) (IFP applicant has statutory right to interlocutory appellate review; trial court cannot deny IFP on appeal when that denial would block review)
- State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015) (procedure for successive IFP appeals where first appeal is from a final order; trial court may deny IFP on appeal if underlying position is frivolous)
- Jacob v. Schlichtman, 261 Neb. 169, 622 N.W.2d 852 (2001) (recognition of statutory right to interlocutory appellate review for IFP denials)
- Berumen v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994) (holding on void sentence based on missing proof of prior conviction; discussed and limited in later cases)
- Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016) (treats certain habeas/sentencing claims as nonvoid and therefore not cognizable on habeas)