Mumin v. Frakes
298 Neb. 381
Neb.2017Background
- Mumin, a state prisoner, filed a pro se habeas corpus petition and an application/affidavit to proceed in forma pauperis (IFP) in district court; the district court denied the IFP application as frivolous.
- Mumin appealed that denial (first appeal) and filed an IFP application for the appeal; the district court again denied IFP on the ground the habeas petition was frivolous.
- Mumin then timely appealed the second denial (second appeal); the Court of Appeals reviewed the appeals under the Carter framework and affirmed the second-denial ruling, holding the petition frivolous and holding the first appeal under submission for payment of the docket fee.
- The Nebraska Supreme Court granted further review to clarify proper procedures for successive IFP applications and appeals, and to decide whether Glass or Carter governs when the first appeal is from an IFP denial.
- The Supreme Court held Glass controls when the first appeal is from an order denying IFP to commence a case: a trial court may not deny an IFP application that would effectively block interlocutory appellate review of an earlier IFP denial.
- Applying Glass, the Court reversed the Court of Appeals as to the second appeal (vacating the second denial) and affirmed the district court’s original denial of IFP for the habeas petition as frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred finding the habeas petition frivolous | Mumin argued his sentence was void for insufficient evidence supporting habitual enhancement | State argued the petition asserted frivolous legal positions and evidence supported enhancement | Held: Petition frivolous; insufficiency claim did not render sentence void; IFP denial on merits affirmed |
| Whether an appellate court has jurisdiction over a successive appeal from denial of IFP on appeal | Mumin relied on timely notice and poverty affidavit to obtain appellate review | State asserted lack of jurisdiction because appellate docket fee unpaid | Held: Jurisdiction exists upon timely notice plus proper IFP application/affidavit |
| Proper appellate procedure when first appeal is from IFP denial (Glass v. Kenney vs. Carter) | Mumin: Glass governs when first appeal challenges an IFP denial to commence a case | State/Court of Appeals applied Carter procedure used when first appeal is from a final order | Held: Glass governs when first appeal is from an IFP denial to commence a case; trial court may not block interlocutory appellate review by denying IFP on appeal |
| Whether trial courts may deny IFP on appeal after an initial IFP denial (i.e., successive IFP denials) | Mumin argued successive denial improperly prevented appellate review | State argued trial court may deny IFP if petition frivolous | Held: Trial court lacks authority to issue an order that interferes with statutory right to interlocutory appeal of an IFP denial; second denial vacated when it blocked review |
Key Cases Cited
- State v. Carter, 292 Neb. 16 (reviewed appellate procedure for successive IFP appeals when first appeal is from a final order)
- Glass v. Kenney, 268 Neb. 704 (established procedure when first appeal challenges an IFP denial to commence a case; trial court may not block interlocutory review)
- Jacob v. Schlichtman, 261 Neb. 169 (recognizes statutory right to interlocutory appellate review of IFP denials)
- Berumen v. Casady, 245 Neb. 936 (addressed void-sentence habeas theory later limited by subsequent cases)