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Mahbub v. Frietag

United States District Court, D. Minnesota

January 8, 2019

Maksud Ul Mahbub, Plaintiff,
v.
Kurt Freitag, Sheriff, Freeborn County; Jack G. Serier, Sheriff, Ramsey County; John Choi, Ramsey County Attorney, Ramsey County; and Loris Swanson, Attorney General, State of Minnesota, Defendants.

          Maksud Ul Mahbub, pro se

          Robert B. Roche, Ramsey County Attorney's Office, for Defendants Serier and Choi; and Jason Marisam, Minnesota Attorney General's Office, for Defendant Swanson.

          REPORT AND RECOMMENDATION

          Steven E. Rau United States Magistrate Judge

         This matter is before the Court on Ramsey County Defendants' Motion to Dismiss, (ECF No. 21), and Attorney General Swanson's Motion to Dismiss, (ECF No. 27). These motions were referred for report and recommendation to the Honorable David S. Doty, United States District Judge for the District of Minnesota, under 28 U.S.C. § 636 and Local Rule 72.2(b). This Court recommends that Defendants' motions be granted.

         I. PROCEDURAL BACKGROUND

         Plaintiff Maksud Mahbub was convicted of one third-degree and three fourth-degree criminal-sexual-conduct offenses and sentenced to 120-months imprisonment. State of Minnesota v. Mahbub, 2013 WL 4779009, at *3 (Minn.Ct.App. Sept. 9, 2013) (hereinafter Mahbub I). Mahbub appealed, but his appeal was stayed to permit him to seek postconviction relief. Id. In his postconviction petition, Mahbub argued his trial counsel was ineffective for two reasons: failing to seek suppression of evidence resulting from an allegedly inaccurate affidavit supporting a search warrant and for failing to adequately investigate a corroborating witness to a victim's testimony. Id. at *7-*8; (Aff. of Robert B. Roche, Ex. 1, ECF No. 26). The district court denied postconviction relief. Mahbub I, at *7-*8.

         Mahbub's direct appeal and postconviction appeal challenged the admission of certain physical evidence, id. at *3-*4; three instances of claimed prosecutorial misconduct, id. at *4-*6; the district court's response to two questions from the jury during deliberation, id. at *6; the cumulative effect of trial errors, id. at *7; and the denial of his postconviction claim concerning ineffective assistance of counsel, id. at *7-*8. Mahbub's appellate claims were rejected and his convictions were affirmed. Id. at *9.

         Thereafter, Mahbub sought federal habeas relief. Mahbub brought two claims: that the trial court received evidence in violation of the evidentiary rules, resulting in Fifth, Sixth, and Fourteenth Amendment violations; and prosecutorial misconduct resulting in violations of his due process and fair trials rights. Mahbub v. Warden, Moose Lake Prison, 2015 WL 9665674, at *1 (D. Minn. July 20, 2015) (hereinafter Mahbub II), report and recommendation adopted by 2016 WL 75053 (D. Minn. Jan. 6, 2016) (hereinafter Mahbub III). The court found Mahbub failed to exhaust state remedies, thereby defaulting his claims. Mahbub II, at *7, adopted by Mahbub III, at *2. Mahbub's federal habeas petition was dismissed with prejudice. Mahbub III, at *3.

         “Almost two years after the Minnesota Supreme Court denied review” of Mahbub's previous appeal, he brought a second postconviction petition. See Mahbub v. State of Minnesota, 2017 WL 2628209, at *1 (Minn.Ct.App. June 19, 2017) (hereinafter Mahbub IV); (see Roche Aff. Ex. 3). Mahbub asserted twelve claims for relief. Relevant here, Mahbub made a due process claim “based on the state's alleged failure to disclose evidence to the defense at trial, ” a Due Process claim “based on the alleged incompleteness of the record on direct appeal, ” and “various claims based on the district court's denial of certain motions for disclosure and production in the second postconviction proceedings.” Mahbub IV, at *1. The first claim was procedurally barred because it was known or should have been known by Mahbub at his first postconviction claim or direct appeal. Id. at *2. The second and third claims were denied because postconviction relief was unavailable for such claims. Id.

         Mahbub brought another federal habeas petition. The petition was dismissed for lack of jurisdiction because Mahbub had not received authorization from the Eighth Circuit to file a second or successive habeas petition. Mahbub v. Warden, Rush City Prison, 2018 WL 2271026, at *1-*2 (D. Minn. May 17, 2018). Mahbub appealed, but his appeal was dismissed for want of prosecution. Mahbub v. Warden, Eighth Cir. Case No. 18-2440, Doc. No. 4700718 (Aug. 31, 2018).

         Now, Mahbub brings a civil suit under 42 U.S.C. § 1983 asserting two claims. First, Mahbub alleges he was denied access to adequate legal resources and materials at the Freeborn County Detention Center. (Compl., at 1, ECF No. 1-1). Mahbub asserts this prevented him from timely preparing an objection to the report and recommendation- leading to the dismissal of his federal habeas petition. (Compl., at 1). Second, Mahbub asserts the Ramsey County Attorney's Office is denying him access to evidence it possesses. (Compl., at 2-3). Some defendants have moved to dismiss the complaint. (ECF Nos. 21, 27).

         Simultaneously to filing this federal suit, Mahbub filed a third postconviction petition. (See Roche Aff., Ex. 6). That petition was promptly denied. (Roche Aff., Ex. 6).

         II. ANALYSIS

         A. ...


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