Mumin v. Frakes, 298 Neb. 381

Background

Dukhan Mumin, convicted as a habitual criminal (possession of cocaine), filed a pro se habeas corpus petition in county court and an accompanying application/affidavit to proceed in forma pauperis (IFP).
The district court denied Mumin’s initial IFP application, finding his habeas petition frivolous. Mumin appealed that denial (first appeal).
Mumin filed a separate IFP application to proceed on appeal; the district court again denied IFP on appeal. Mumin then filed a second appeal challenging that second denial (second appeal).
The Court of Appeals applied the procedure from State v. Carter, reviewed the merits of the second appeal, affirmed the denial of IFP on appeal, and held the first appeal under submission pending payment of the docket fee.
The Nebraska Supreme Court granted further review to clarify how trial and appellate courts should handle successive IFP applications and appeals and to decide whether Glass v. Kenney or Carter governs in this posture.
The Supreme Court held Glass governs here (first appeal was from denial of IFP to commence the case), 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 on the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate court had jurisdiction over the second appeal (IFP on appeal)	Mumin argued his timely notice plus poverty affidavit sufficed to invoke appellate jurisdiction for the second appeal	State argued lack of paid docket fee deprived appellate jurisdiction	Timely notice plus a proper IFP application/affidavit confers jurisdiction; appellate court had jurisdiction over the second appeal (Glass rule applies)
Whether trial court could deny IFP on appeal when that denial would block interlocutory review of an earlier IFP denial	Mumin argued the later denial unlawfully interfered with his statutory right to interlocutory review of the first denial	State contended trial court may deny IFP on appeal if petition is frivolous	Trial court lacked authority to deny IFP on appeal when that denial would prevent interlocutory review of an earlier IFP denial; such denials must be reversed (Glass)
Whether Mumin’s habeas petition is frivolous (so original IFP properly denied)	Mumin argued his sentence was void due to insufficient evidence for habitual enhancement	State argued record contained documentary evidence of prior convictions and the enhancement was supported	The habeas petition asserted frivolous legal positions; the district court correctly denied the original IFP application
Which appellate procedure applies to successive IFP appeals (Glass v. Kenney vs. State v. Carter)	Mumin implicitly relied on Glass by pursuing interlocutory review of IFP denials	State/Ct. of Appeals applied Carter procedure	Where the first appeal is from denial of IFP to commence a case, Glass governs; Carter applies when the first appeal is from a final judgment

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 thwart review)
State v. Carter, 292 Neb. 16 (Neb. 2015) (procedure for reviewing successive IFP appeals when first appeal is from a final order)
Jacob v. Schlichtman, 261 Neb. 169 (2001) (recognizing statutory right to interlocutory appeal of an IFP denial)
State v. Campbell, 260 Neb. 1021 (2001) (poverty affidavit sufficiency; no separate form required)
Berumen v. Casady, 245 Neb. 936 (1994) (holding about void-enhanced sentence later limited; cited regarding void-sentence argument)
Sanders v. Frakes, 295 Neb. 374 (2016) (authority on frivolousness standard for habeas or collateral claims)