Mumin v. Frakes ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/23/2018 09:14 AM CST
- 381 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
Dukhan Mumin, appellant, v. Scott Frakes, director,
Nebraska Department of Correctional Services,
and Brian Gage, warden, Tecumseh State
Correctional Institution, appellees,
___ N.W.2d ___
Filed December 15, 2017. No. S-16-327.
1. Affidavits: Appeal and Error. A district court’s denial of in forma pau-
peris status is reviewed de novo on the record based on the transcript of
the hearing or written statement of the court.
2. Statutes: Affidavits. Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) con-
templates only two circumstances under which a court may deny leave
to proceed in forma pauperis, assuming the application and affidavit
is proper: (1) when the evidentiary hearing shows the applicant has
sufficient funds to pay costs, fees, or security and (2) when the court
concludes the applicant is asserting legal positions which are frivolous
or malicious.
3. Affidavits. If the basis for denial of in forma pauperis status is frivo-
lousness, the court must provide a written statement of its reasons, find-
ings, and conclusions.
4. Constitutional Law: Statutes: Affidavits: Appeal and Error. The in
forma pauperis statutes contemplate two circumstances under which
a court has no authority to deny a proper application and affidavit to
proceed in forma pauperis. The first circumstance is expressly laid out
in statute: A court shall not deny an in forma pauperis application on the
basis that the applicant’s legal positions are frivolous or malicious if to
do so would deny the applicant his or her constitutional right to appeal
in a felony case. The second circumstance is one which this court has
found to be implicit in the statutory scheme: Because an applicant has a
statutory right to interlocutory appellate review of an order denying an
in forma pauperis application, a court may not deny an application to
proceed in forma pauperis when the applicant is seeking to appeal from
an order denying an earlier in forma pauperis application.
- 382 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
5. Statutes: Affidavits: Appeal and Error. Although the in forma pau-
peris statutes give a trial court the authority to deny an application
requested to commence, prosecute, defend, or appeal a case in forma
pauperis if the court finds the applicant has sufficient funds or the legal
positions being asserted therein are frivolous or malicious, a trial court
does not have the same authority once an in forma pauperis applica-
tion is denied and the applicant seeks interlocutory appellate review of
that denial.
6. Affidavits: Appeal and Error. When an application to proceed in forma
pauperis is denied by the trial court and the applicant seeks leave to pro-
ceed in forma pauperis to obtain appellate review of that denial, a trial
court does not have the authority to issue an order that would interfere
with such appellate review.
Petition for further review from the Court of Appeals,
R iedmann, Bishop, and A rterburn, Judges, on appeal thereto
from the District Court for Johnson County, Daniel E. Bryan,
Jr., Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
Dukhan Mumin, pro se.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
Dukhan Mumin seeks further review of a Nebraska Court
of Appeals opinion addressing his successive appeals from
district court orders denying successive applications to pro-
ceed in forma pauperis (IFP). On further review, we clarify
the procedure trial courts should follow in ruling on succes-
sive applications to proceed IFP, as well as the procedure
appellate courts should follow in reviewing successive appeals
from the denial of IFP applications. We ultimately reverse the
decision of the Court of Appeals and remand the matter with
specific directions.
- 383 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
I. BACKGROUND
In 2013, Mumin was convicted of possession of cocaine.
He was found to be a habitual criminal and was sentenced
to imprisonment for a term of 10 to 20 years. His conviction
and sentence were affirmed on direct appeal to the Court of
Appeals in an unpublished memorandum opinion in case No.
A-13-783 filed on June 6, 2014.
1. IFP A pplications
In March 2016, Mumin filed a pro se petition for writ
of habeas corpus in the district court for Johnson County,
Nebraska. Along with the petition, he filed an affidavit and
application for leave to proceed IFP. The district court denied
the IFP application, finding the legal positions Mumin advanced
in his habeas petition were frivolous.
Mumin filed a timely notice of appeal from the order deny-
ing his IFP application (first appeal). In lieu of the statutory
docket fee on appeal,1 he filed an application and affidavit
to proceed IFP on appeal. The district court denied Mumin’s
application to proceed IFP on appeal, reasoning again that his
habeas petition was frivolous.
Mumin then timely appealed from the district court’s order
denying his application to proceed IFP on appeal (second
appeal). The Clerk of the Supreme Court and Court of Appeals
docketed both the first and second appeals under the same
case number.
2. Court of A ppeals’ Opinion
In a memorandum opinion,2 the Court of Appeals addressed
Mumin’s successive IFP appeals using the procedure we out-
lined in State v. Carter.3 First, the Court of Appeals addressed
the second appeal and concluded it had jurisdiction over that
1
See Neb. Rev. Stat. §§ 25-1912 and 25-1916 (Reissue 2016).
2
Mumin v. Frakes, No. A-16-327, 2017 WL 672286 (Neb. App. Feb. 21,
2017) (selected for posting to court website).
3
State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).
- 384 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
appeal, because Mumin had filed a timely notice of appeal
from the order denying IFP on appeal, accompanied by a
proper poverty affidavit and IFP application. On the merits of
the second appeal, the Court of Appeals analyzed, de novo on
the record, whether the district court correctly concluded the
underlying habeas petition was frivolous. It concluded Mumin
was asserting a frivolous legal position in his habeas peti-
tion and, thus, affirmed the district court’s order denying IFP
on appeal.
The Court of Appeals then held the first appeal under
submission to give Mumin an opportunity to pay the statu-
tory docket fee on appeal, reasoning that “pursuant to [Neb.
Rev. Stat.] § 25-2301.02(1) [(Reissue 2016)], we will not
have jurisdiction of the first appeal unless Mumin pays the
statutory docket fee within 30 days of the date of release of
this opinion.”4
Mumin timely filed a petition for further review, which
we granted.
II. ASSIGNMENT OF ERROR
Mumin assigns it was error to conclude his habeas petition
was frivolous.
III. STANDARD OF REVIEW
[1] A district court’s denial of IFP status is reviewed de
novo on the record based on the transcript of the hearing or
written statement of the court.5
IV. ANALYSIS
We granted further review to address the proper procedure
for trial and appellate courts to follow when considering suc-
cessive applications to proceed IFP and successive appeals
from orders denying IFP. Mumin’s appeal involves what has
4
Mumin v. Frakes, supra note 2, 2017 WL 672286 at *3.
5
Neb. Rev. Stat. § 25-2301.02(2) (Reissue 2016); State v. Carter, supra
note 3.
- 385 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
become a relatively common factual scenario: (1) A trial court
denies an IFP application to commence a case; (2) the appli-
cant appeals the denial of IFP and, in lieu of the statutory
docket fee on appeal, asks to proceed IFP on appeal; (3) the
trial court denies the application to proceed IFP on appeal; and
(4) the applicant then appeals the second IFP denial.6 In this
common example, the potential cycle of successive IFP denials
and appeals is seemingly endless.
Because successive IFP denials, and appeals therefrom,
strain the limited resources of our judicial system and delay
final resolution of matters brought before the court, we take
this opportunity to clarify certain aspects of the IFP process
which appear to have generated confusion in both the trial
and appellate courts. We consider two questions on further
review: (1) When does a trial court have authority to deny
an application to proceed IFP on appeal? (2) When presented
with successive IFP appeals, should an appellate court follow
the procedure articulated in Glass v. Kenney7 or the procedure
articulated in State v. Carter?8
To answer these questions, we begin with an overview of
the statutory IFP scheme. We then explain and contrast our
holdings in Glass and Carter, after which we analyze Mumin’s
successive IFP appeals under the Glass procedure. Finally, we
highlight an additional consideration for trial courts presented
with IFP applications in cases such as Mumin’s, where no pre-
payment of fees or costs was required.9
1. IFP Statutes
Nebraska’s IFP statutes are codified at Neb. Rev. Stat.
§§ 25-2301 to 25-2310 (Reissue 2016). Those statutes define
IFP as “the permission given by the court for a party to
6
See Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
7
Id.
8
State v. Carter, supra note 3.
9
See Neb. Rev. Stat. § 29-2824 (Reissue 2016).
- 386 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
proceed without prepayment of fees and costs or security.”10
The IFP statutes authorize any county or state court, except
the Workers’ Compensation Court, to authorize “the com-
mencement, prosecution, defense, or appeal therein, of a civil
or criminal case in forma pauperis.”11 The IFP statutes define
“[c]ase” to include “any suit, action, or proceeding.”12
The requirements of an IFP application are set out in stat-
ute. An application to proceed IFP “shall include an affidavit
stating that the affiant is unable to pay the fees and costs or
give security required to proceed with the case, the nature of
the action, defense, or appeal, and the affiant’s belief that he
or she is entitled to redress.”13 We have not construed this
language to mandate separate poverty affidavits and IFP appli-
cations; instead, we hold that as long as the poverty affidavit
itself includes an indication that the party is applying for IFP
status, § 25-2301.01 does not require that a separate IFP appli-
cation be filed in addition to the poverty affidavit.14
Assuming a proper IFP application and affidavit is filed,
the IFP statutes mandate that leave to proceed IFP “shall be
granted unless there is an objection that the party filing the
application (a) has sufficient funds to pay costs, fees, or secu-
rity or (b) is asserting legal positions which are frivolous or
malicious.”15 An objection may be raised by “any interested
person” or by the court on its own motion.16 An objection
claiming that an applicant has sufficient funds or is asserting
frivolous or malicious legal positions must be made within 30
days after the IFP application is filed, but an objection claim-
ing that the IFP application was fraudulent may be made at any
10
§ 25-2301(2).
11
§ 25-2301.01.
12
§ 25-2301(1).
13
§ 25-2301.01.
14
State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001).
15
§ 25-2301.02(1).
16
Id.
- 387 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
time.17 When an objection is filed, the court must conduct an
evidentiary hearing on the objection, except when the objection
is on the court’s own motion on grounds the applicant is assert-
ing legal positions which are frivolous or malicious.18
[2,3] Section 25-2301.02 contemplates only two circum-
stances under which a court may deny leave to proceed IFP,
assuming the application and affidavit is proper: (1) when the
evidentiary hearing shows the applicant has sufficient funds to
pay costs, fees, or security and (2) when the court concludes
the applicant is asserting legal positions which are frivolous or
malicious.19 If the basis for denying IFP is frivolousness, the
court must provide a written statement of its reasons, findings,
and conclusions.20
[4] Additionally, the IFP statutory scheme contemplates
two circumstances under which a court has no authority to
deny a proper application and affidavit to proceed IFP. The
first circumstance is expressly laid out in § 25-2301.02(1):
A court “shall not deny” an IFP application on the basis that
the applicant’s legal positions are frivolous or malicious if
to do so would deny the applicant his or her constitutional
right to appeal in a felony case. The second circumstance
is one which this court has found to be implicit in the IFP
statutory scheme: Because an applicant has a statutory right
to interlocutory appellate review of an order denying an IFP
application,21 a court does not have authority to interfere with
such appellate review by denying a request to proceed IFP in
order to obtain appellate review of an order denying an earlier
IFP application.22
17
Id.
18
Id.
19
Id.
20
Id.
21
Glass v. Kenney, supra note 6; Jacob v. Schlichtman, 261 Neb. 169, 622
N.W.2d 852 (2001).
22
Glass v. Kenney, supra note 6.
- 388 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
Finally, under the IFP statutory scheme, when an IFP appli-
cation is denied, the applicant has two choices: (1) to proceed
with the matter upon payment of fees, costs, or security23 or
(2) to appeal the order denying IFP.24 If the applicant elects to
appeal from the denial of IFP, he or she may ask the court for a
transcript of the IFP hearing and the court is required by statute
to “order the transcript to be prepared and the cost shall be paid
by the county in the same manner as other claims are paid.”25
For the sake of completeness, we also note that IFP applica-
tions filed by prisoners seeking IFP status to file a civil action
are subject to an additional statute, Neb. Rev. Stat. § 25-3401
(Reissue 2016), but that statute does not apply to habeas corpus
relief 26 and is not relevant to the instant appeal.
2. Successive IFP A ppeals
Our modern IFP jurisprudence has articulated two different
procedures for appellate courts to follow when reviewing suc-
cessive appeals involving the denial of IFP. Generally speak-
ing, when the first appeal is from an order denying a request
to proceed IFP, the procedure on appeal is set out in Glass
v. Kenney.27 But when the first appeal is not from an order
denying IFP, but instead is from a judgment or final order, the
proper appellate review procedure is set out in State v. Carter.28
We discuss both cases, and procedures, below.
(a) Glass v. Kenney
Glass v. Kenney,29 decided in 2004, involved the same
factual situation present in the instant appeals. An inmate
23
§ 25-2301.02(1).
24
§ 25-2301.02(2); Glass v. Kenney, supra note 6.
25
§ 25-2301.02(2).
26
§ 25-3401(1)(a).
27
Glass v. Kenney, supra note 6.
28
State v. Carter, supra note 3.
29
Glass v. Kenney, supra note 6.
- 389 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
filed an application and affidavit to proceed IFP in connec-
tion with filing a pro se petition for writ of habeas corpus.
The trial court denied the IFP application finding the allega-
tions in the habeas petition were frivolous. The inmate filed
a notice of appeal from the order denying IFP (first appeal)
and filed therewith an application and affidavit to proceed IFP
on appeal. The trial court denied the application to proceed
IFP on appeal, reasoning again that the habeas petition was
frivolous. The inmate then filed a notice of appeal from the
second IFP denial (second appeal), along with another appli-
cation and affidavit to proceed IFP on appeal. The first appeal
and second appeal were docketed separately, but eventually
were consolidated.
The State argued there was no appellate jurisdiction over the
inmate’s second appeal, because he had not paid the statutory
docket fee.30 We rejected this argument based on the language
of the IFP statutes and our prior case law. Specifically, we
found that when an application to proceed IFP is denied, the
applicant may “either proceed with the trial action or appeal
the ruling denying [IFP] status.”31 We emphasized that under
§ 25-2301.02, there is a “statutory right of interlocutory appel-
late review of a decision denying [IFP] eligibility.”32 Thus,
we held that the appeal from the denial of the application to
proceed IFP on appeal was a “statutorily authorized inter-
locutory appeal which we will entertain if other jurisdictional
requirements are met.”33 We explained that in an appeal from
a denial of IFP status on appeal, a poverty affidavit serves as
a substitute for the docket fee otherwise required on appeal, so
an appellate court obtains jurisdiction over the appeal “‘upon
the timely filing of a notice of appeal and a proper [IFP]
30
See § 25-1912.
31
Glass v. Kenney, supra note 6, 268 Neb. at 709, 687 N.W.2d at 911, citing
Martin v. McGinn, 265 Neb. 403, 657 N.W.2d 217 (2003).
32
Id., citing Jacob v. Schlichtman, supra note 21.
33
Glass v. Kenney, supra note 6.
- 390 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
application and affidavit.’”34 We concluded we had jurisdiction
over the second appeal, because the inmate had filed a timely
notice of appeal, a proper application to proceed IFP, and a
poverty affidavit.
After concluding we had jurisdiction over the second
appeal, we addressed the merits of that appeal. We ultimately
concluded the trial court erred in denying the inmate’s appli-
cation to proceed IFP on appeal, because doing so effectively
denied his statutory right to interlocutory appellate review of
an order denying IFP. Because the trial court was “without
authority” to issue an order interfering with that right,35 we
resolved the second appeal by reversing and vacating the
trial court’s order denying the application to proceed IFP
on appeal.
After resolving the second appeal, Glass addressed the mer-
its of the first appeal. In the first appeal, the inmate challenged
the trial court’s denial of his original application to proceed
IFP filed along with his habeas petition. Glass reviewed the
legal positions asserted in the habeas petition, found they were
frivolous, and concluded the trial court had not erred in deny-
ing the inmate’s first IFP application on that basis. Ultimately,
the resolution of Glass was that the second appeal was reversed
and vacated in order to reach the first appeal, and the first
appeal was affirmed.
(b) State v. Carter
In State v. Carter,36 decided in 2015, we applied the basic
rationale of Glass to slightly different procedural facts. In
Carter, the inmate filed a pro se motion for postconviction
relief, which the trial court denied without conducting an
evidentiary hearing. The inmate then filed an appeal from the
order denying postconviction relief (first appeal) and, in lieu
34
Id. at 709, 687 N.W.2d at 911, quoting State v. Jones, 264 Neb. 671, 650
N.W.2d 798 (2002).
35
Id. at 710, 687 N.W.2d at 912.
36
State v. Carter, supra note 3.
- 391 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
of the statutory docket fee, filed an application and affidavit
to proceed IFP on appeal. The trial court denied the IFP appli-
cation, reasoning the underlying postconviction motion was
frivolous. At that point, the inmate had 30 days to either pay
the statutory docket fee and proceed with the appeal or appeal
the denial of IFP.37 The inmate chose to file a notice of appeal
from the order denying IFP on appeal (second appeal), accom-
panied by another application and affidavit to proceed IFP on
appeal. The record on appeal did not contain a ruling on the
second IFP application.
Carter recognized that the procedural posture of the case
differed slightly from that considered in Glass.38 However, on
the threshold question whether the appellate court had juris-
diction over the second appeal despite the inmate’s failure to
pay the statutory docket fee, the court in Carter concluded
the “same principles” as were discussed in Glass generally
applied.39 Consequently, in Carter, just as in Glass, we con-
cluded we had jurisdiction over the second appeal, because the
inmate had filed a proper application and affidavit to proceed
IFP along with his timely notice of appeal.
Carter then proceeded to consider the merits of the inmate’s
second appeal, which challenged the denial of his “application
to proceed IFP on appeal.”40 In doing so, Carter observed the
general rule that a trial court has the authority to deny an IFP
application (whether IFP is initially requested to commence
an action or to take an appeal) if it determines the applicant
is asserting legal positions that are frivolous or malicious.41
We then reviewed de novo the trial court’s conclusion that the
inmate should not be granted leave to appeal IFP because his
postconviction motion was frivolous. We agreed the inmate
37
See Glass v. Kenney, supra note 6, citing Martin v. McGinn, supra note 31.
38
State v. Carter, supra note 3.
39
Id. at 20, 870 N.W.2d at 644.
40
Id. at 21, 870 N.W.2d at 644.
41
See § 25-2301.02(1)
- 392 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
was asserting “only frivolous legal positions” in his post-
conviction motion, and thus resolved the second appeal (the
inmate’s appeal from the denial of IFP on appeal) by affirming
the district court’s order.42 As to the inmate’s first appeal (from
the final order denying postconviction relief without a hear-
ing), we reasoned:
[P]ursuant to § 25-2301.02(1), we will not have juris-
diction of the first appeal unless [the inmate] pays
the statutory docket fee within 30 days of the date of
release of this opinion. We therefore hold the first appeal
under submission for payment of the statutory docket
fee. If [the inmate] fails to timely pay the statutory
docket fee, his first appeal will be dismissed for lack
of jurisdiction.43
The inmate subsequently paid the statutory docket fee, and in
a brief per curiam supplemental opinion, we considered the
merits of his first appeal from the order denying postconvic-
tion relief. We affirmed the denial of postconviction relief,
explaining: “As was foreshadowed in [our earlier opinion],
we find [the inmate’s] motion for postconviction relief to
be meritless.”44
(c) Contrasting Glass and Carter
We have not previously explained the rationale behind the
different appellate procedures followed in Glass and Carter,
but emphasize now that the appellate procedure was driven by
the nature of the first appeal and the differing points at which
the applicants sought interlocutory appellate review of the
trial court’s order denying IFP.
In Glass, the first appeal was from the denial of a request
to proceed IFP to commence a case, and the second appeal
42
State v. Carter, supra note 3, 292 Neb. at 23, 870 N.W.2d at 645.
43
Id. at 23, 870 N.W.2d at 646.
44
State v. Carter, 292 Neb. 481, 481, 877 N.W.2d 211, 211 (2016)
(supplemental opinion), cert. denied ___ U.S. ___, 137 S. Ct. 151, 196 L.
Ed. 2d 115.
- 393 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
was from the denial of IFP to seek interlocutory appellate
review of the first IFP denial. But in Carter, the first appeal
was from a final order denying postconviction relief, and the
second appeal was from the denial of the request to proceed
IFP on appeal.
[5,6] This variation in the factual posture of Glass and
Carter significantly affects the procedural analysis on appeal.
This is so, because although the IFP statutory scheme gives a
trial court the authority to deny an IFP application requested
to commence, prosecute, defend, or appeal a case if the court
finds the applicant has sufficient funds or the legal positions
being asserted therein are frivolous or malicious,45 a trial court
does not have the same authority once an IFP application is
denied and the applicant wishes to seek interlocutory appellate
review of the denial.46 When an IFP application is denied and
the applicant seeks leave to proceed IFP to obtain appellate
review of that denial, the trial court does not have author-
ity to issue an order that would interfere with such appellate
review.47 Otherwise, the IFP applicant would be denied his or
her statutory right to appellate review of the order denying
IFP status.
(d) Mumin’s Appeals Are Governed
by Glass, Not Carter
In the present case, the Court of Appeals followed the appel-
late procedure outlined in Carter when considering Mumin’s
successive IFP appeals. But given the procedural posture of
Mumin’s first appeal (which was from an order denying IFP to
commence a case), the proper procedure was that outlined in
Glass, not Carter.
Mumin does not directly challenge the appellate proce-
dure applied in this case; rather, his sole assignment is that
the court erred in finding his habeas petition was frivolous.
45
§ 25-2301.02(1)(a) and (b).
46
Glass v. Kenney, supra note 6, citing Jacob v. Schlichtman, supra note 21.
47
Id.
- 394 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
Reviewing the matter de novo on the record and apply-
ing the appellate procedure from Glass, we find no merit to
Mumin’s assignment.
An appellate court’s threshold consideration, whether ana-
lyzing successive IFP appeals under Glass or Carter, is to
decide whether it has jurisdiction over the second appeal.
Here, the Court of Appeals correctly concluded it had jurisdic-
tion over the second appeal. An appellate court obtains juris-
diction over an appeal “‘upon the timely filing of a notice of
appeal and a proper [IFP] application and affidavit.’”48 Mumin
timely filed his second notice of appeal, along with a proper
application and affidavit to proceed IFP on appeal. Similarly,
we conclude this court has jurisdiction on further review,
because Mumin timely filed his petition for further review and
his poverty affidavit serves as a substitute for the statutory
docket fee otherwise required.49
(i) Merits of Second Appeal
Having confirmed jurisdiction, we consider the substance
of the second appeal, in which Mumin seeks appellate review
of the district court’s order denying his application to pro-
ceed IFP on appeal. As we explained in Glass, under the
statutory IFP scheme, Mumin has a right to interlocutory
appellate review of an order denying IFP status to commence
a case.50 Because the district court’s second order denying
IFP interfered with Mumin’s statutory right to appeal the
first IFP denial, the district court was without authority to
issue the second denial.51 Therefore, we conclude the district
court erred in denying Mumin’s application to proceed IFP
48
Id. at 709, 687 N.W.2d at 911, quoting State v. Jones, supra note 34.
49
See Neb. Rev. Stat. § 33-103.01 (Reissue 2016) and Neb. Ct. R. App. P.
§§ 2-101(G)(1)(b) and 2-102(F)(1) (rev. 2015). Accord Glass v. Kenney,
supra note 6, citing In re Interest of Noelle F. & Sarah F., 249 Neb. 628,
544 N.W.2d 509 (1996).
50
Glass v. Kenney, supra note 6; Jacob v. Schlichtman, supra note 21.
51
Id.
- 395 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
on appeal. To the extent the Court of Appeals affirmed the
district court’s order denying Mumin’s request to proceed IFP
on appeal, we reverse the decision and, consistent with Glass,
remand this matter to the Court of Appeals with directions to
reverse and vacate that order of the district court.52
(ii) Merits of First Appeal
With respect to Mumin’s first appeal, in which he seeks
review of the district court’s order denying his IFP applica-
tion to commence his petition for writ of habeas corpus,
Mumin presents the same argument on further review that he
advanced to the Court of Appeals—that his sentence is void
because there was insufficient evidence presented at his sen-
tencing to support habitual criminal enhancement. Both the
district court and the Court of Appeals correctly concluded
that because any insufficiency of the evidence presented at
the sentencing proceedings would not render Mumin’s convic-
tion or sentence void, his habeas petition asserts a frivolous
legal position.53
On further review, Mumin argues that under the holding
in Berumen v. Casady,54 his sentence should be considered
void. In Berumen, we found that a habeas petitioner had
shown his enhanced sentence for second-offense driving while
intoxicated was void by offering a record showing the State
failed to offer any evidence of a first offense. The holding in
Berumen was based in part on the proposition that a collat-
eral attack may be made on the validity of a conviction used
for enhancement, a proposition we have since rejected.55 But
more important, unlike Berumen, Mumin’s habeas petition
and the documents attached thereto show the State offered
documentary evidence of Mumin’s prior convictions, and the
52
See Glass v. Kenney, supra note 6.
53
See Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
54
Berumen v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994).
55
See id., citing State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992),
overruled, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
- 396 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
court specifically found the evidence supported his sentence
enhancement. We therefore find that both the district court and
the Court of Appeals correctly concluded that Mumin’s habeas
petition asserts a frivolous legal position.
But because the Court of Appeals was following the pro-
cedural framework of Carter rather than Glass, it reached
this correct conclusion in the context of analyzing the second
appeal rather than the first, and it then held the first appeal
under submission for payment of the statutory docket fee.
Under the Glass procedure, it should instead have reached the
merits of the first appeal and concluded the district court cor-
rectly denied Mumin’s original IFP application filed with his
habeas petition.56
We thus reverse the decision and remand the matter to the
Court of Appeals with directions to affirm the district court’s
denial of Mumin’s first IFP application. Before doing so, we
take this opportunity to mention another consideration when
ruling on IFP applications, which we did not squarely address
in either Glass or Carter.
(e) Additional IFP Considerations
Some appeals involving successive denials of IFP arise
in cases where no prepayment of fees or costs is required
to commence the case in the trial court. This appeal is one
such example. Mumin sought leave to proceed IFP in con-
nection with filing a petition for writ of habeas corpus. But
pursuant to Neb. Rev. Stat. § 29-2824 (Reissue 2016), “no
person or officer shall have the right to demand the pay-
ment in advance of any fees” in proceedings on habeas
corpus in a criminal case.57 As a result, Mumin was able to
file his habeas petition with the clerk of the Johnson County
District Court without the need to prepay the filing fee. A
56
See § 25-2301.02(1)(b).
57
Accord § 2-101(G)(1)(c) (providing appellate docket fees in habeas corpus
proceedings are not required in advance and will be collected at conclusion
of proceeding).
- 397 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
MUMIN v. FRAKES
Cite as 298 Neb. 381
similar rule applies to filing motions for postconviction relief
in criminal cases.58
Consequently, while it was not improper for the district
court to rule on the IFP application as a threshold matter, doing
so was not necessary to allow Mumin to file or proceed with
his habeas petition. And once the district court concluded—in
the context of its IFP review—that the legal positions asserted
in the habeas petition were frivolous, it would have been more
efficient for the district court to rule directly on the merits of
the habeas petition at the same time it ruled on the IFP applica-
tion. Instead, because the district court ruled only on the IFP
applications and not on the habeas petition, Mumin’s habeas
petition has remained unresolved awaiting resolution of the IFP
denials that were appealed.
Where, as here, there is no statutory requirement for prepay-
ment of fees or costs to file or proceed with a matter, a trial
court should consider whether it may be appropriate to defer
ruling on an IFP application either until such time as it appears
that some payment of fees, costs, or security may be neces-
sary to proceed or until a judgment or final order is entered.
In cases where no prepayment of fees or costs is required,
deferring the ruling on an IFP application would permit the
court to reach the merits of the case more quickly and without
potentially lengthy delays caused by interlocutory appeals from
orders denying IFP.
V. CONCLUSION
For the reasons stated above, we reverse the decision of
the Court of Appeals and remand the matter with directions to
reverse and vacate the order of the district court in the second
appeal and, in the first appeal, to affirm the district court’s
denial of Mumin’s original IFP application.
R eversed and remanded with directions.
Wright, J., not participating in the decision.
58
See Neb. Rev. Stat. § 29-3001(2) (Reissue 2016) (providing “[c]osts shall
be taxed as in habeas corpus cases”).