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Dukhan Mumin, appellant, v. Scott Frakes, di

Nebraska Department of Correctional Ser

and Brian Gage, warden, Tecums

Correctional Institution, appel

___ N.W.2d ___

Filed December 15, 2017. No. S-16-327.

1. Affidavits: Appeal and Error. A district court’s denial of in forma pauperis 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) contemplates 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 frivolousness, the court must provide a written statement of its reasons, findings, 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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5. Statutes: Affidavits: Appeal and Error. Although the in forma pauperis 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 application 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 proceed 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, 

Riedmann, Bishop, and Arterburn, Judges, on appeal th

from the District Court for Johnson County, Daniel E. Br

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, Casse

Kelch, and Funke, 

Stacy, 

Dukhan Mumin seeks further review of a Nebraska Court 

of Appeals opinion addressing his successive appeals from 

district court orders denying successive applications to proceed in forma pauperis (IFP). On further review, we clarify 

the procedure trial courts should follow in ruling on successive 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.
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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 Applica

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 denying 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 Appeals’ Op

In a memorandum opinion,2 the Court of Appeals addressed 

Mumin’s successive IFP appeals using the procedure we outlined 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).
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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 petition 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 statutory 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 successive 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.
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become a relatively common factual scenario: (1) A trial court 

denies an IFP application to commence a case; (2) the applicant 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 prepayment of fees or costs was required.9

1. IFP Statu

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).
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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 commencement, 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 statute. 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 applications; 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 application 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 security 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 claiming 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.
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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 asserting legal positions which are frivolous or malicious.18

[2,3] Section 25-2301.02 contemplates only two circumstances 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.
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Finally, under the IFP statutory scheme, when an IFP application 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 applications 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 

relief26 and is not relevant to the instant appeal.

2. Successive IFP A

Our modern IFP jurisprudence has articulated two different 

procedures for appellate courts to follow when reviewing successive appeals involving the denial of IFP. Generally speaking, 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.
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filed an application and affidavit to proceed IFP in connection with filing a pro se petition for writ of habeas corpus. 

The trial court denied the IFP application finding the allegations 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 application 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 appellate 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 interlocutory 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.
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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 application 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 merits 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 denying 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.
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of the statutory docket fee, filed an application and affidavit 

to proceed IFP on appeal. The trial court denied the IFP application, 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), accompanied 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 jurisdiction 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 concluded 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)
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was asserting “only frivolous legal positions” in his postconviction 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 hearing), we reasoned:

[P]ursuant to § 25-2301.02(1), we will not have jurisdiction 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 postconviction 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.
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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 authority 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 appellate 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 procedure 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.
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Reviewing the matter de novo on the record and applying the appellate procedure from Glass, we find no merit to 

Mumin’s assignment.

An appellate court’s threshold consideration, whether analyzing 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 jurisdiction over the second appeal. An appellate court obtains jurisdiction 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 proceed 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.
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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 application 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 sentencing 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 conviction 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 collateral 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).
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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 procedural 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 correctly 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 connection 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 payment 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).
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Nebraska Supreme Court Advance S

298 Nebraska Report

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 application. 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 prepayment 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 necessary 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.

Reversed and remanded with direct

Wright, J., not participating in the decisio

58 See Neb. Rev. Stat. § 29-3001(2) (Reissue 2016) (providing “[c]osts shall 

be taxed as in habeas corpus cases”).