United States District Court, D. Minnesota
Ul Mahbub, pro se petitioner.
W. Stockmeyer, III, and Matthew Frank, Peter R. Marker, for
R. TUNHEIM CHIEF JUDGE
Maksud Ul Mahbub (“Mahbub”), an inmate at the
Minnesota Correctional Facility - Rush City, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On December 11, 2017, Magistrate Judge Leo I.
Brisbois recommended that Mahbub's petition be denied and
the action dismissed. After an independent review of the
files, records, and proceedings, the Court will conclude that
Mahbub's petition is barred by 28 U.S.C. § 2244(b)
and will dismiss the action without prejudice for lack of
was convicted in state court of one count of third-degree
criminal sexual conduct and three counts of fourth-degree
criminal sexual conduct. State v. Mahbub, No.
A11-1284, 2013 WL 4779009, at *3 (Minn.Ct.App. Sept. 9,
2013), review denied (Minn. Nov. 26, 2013). Mahbub
appealed the verdict on a number of grounds. Id. at
*4-7. He also brought a postconviction petition, arguing that
his trial counsel was ineffective because he failed to
request a suppression motion. Id. at *7-9. The
Minnesota Court of Appeals affirmed both the conviction and
denial of Mahbub's postconviction petition. Id.
at *9. The Minnesota Supreme Court denied review on November
the denial of his postconviction petition in state court,
Mahbub filed a habeas petition under 28 U.S.C. § 2254.
Mahbub v. Warden, No. 14-4825, 2016 WL 75053, at *1
(D. Minn. Jan. 6, 2016). The petition was dismissed with
prejudice because Mahbub had procedurally defaulted on the
claims raised in that petition. Id. at *2-3.
present petition is Mahbub's second habeas petition
(“the present petition”). (Pet., Oct. 30, 2017,
Docket No. 1.) The Magistrate Judge recommended that the
Court dismiss the present petition because Mahbub has not
received permission from the Eighth Circuit Court of Appeals
to file a second habeas petition as required by 28 U.S.C.
§ 2244(b)(3). (R&R at 2-3, Dec. 11, 2017, Docket No.
STANDARD OF REVIEW
the filing of a report and recommendation by a magistrate
judge, a party may “serve and file specific written
objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The district
judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). While Mahbub has not formally filed
objections, the Court construes his pro se filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94
prisoners are prohibited from bringing a second or successive
habeas petition, unless the claims presented in the petition
fall within one of three narrow exceptions. 28 U.S.C. §
2244(b)(2). Even when such an exception applies, the
petitioner must move the Eighth Circuit for an order
authorizing the Court to consider the second or successive
application. See Id. § 2244(b)(3).
present petition is Mahbub's second habeas petition.
See Mahbub, 2016 WL 75053, at *1. Mahbub needed
approval from the Eighth Circuit before filing this second
petition. 28 U.S.C. § 2244(b)(2). The Eighth Circuit has
not authorized the Court to review Mahbub's ...