United States District Court, D. Minnesota
Ul Mahbub, pro se
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
E. Rau United States Magistrate Judge
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
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
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.
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.
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.
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).
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).
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).