State v. Jerke , 302 Neb. 372 ( 2019 )

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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. JERKE
Cite as 302 Neb. 372
State of Nebraska, appellant and cross-appellee,
v. Jedo J. Jerke, appellee and cross-appellant.
___ N.W.2d ___
Filed March 1, 2019. No. S-18-426.
1. Constitutional Law: Postconviction: Pleas. The common-law pro-
cedure for withdrawing a plea after conviction recognized in State v.
Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013), is available only when
(1) the Nebraska Postconviction Act is not, and never was, available as
a means of asserting the ground or grounds justifying withdrawing the
plea and (2) a constitutional right is at issue.
2. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Postconviction: Pleas. Whether the common-law procedure for with-
drawing a plea after conviction recognized in State v. Gonzalez, 285
Neb. 940, 830 N.W.2d 504 (2013), is available presents a question
of law.
4. Effectiveness of Counsel: Proof: Time. The factual predicate for a
claim of ineffectiveness of counsel concerns whether the important
objective facts could reasonably have been discovered, not when the
claimant should have discovered the legal significance of those facts.
5. Effectiveness of Counsel: Proof. When considering the factual predi-
cate of a claim of ineffective assistance of counsel based on the failure
to advise of deportation consequences, the important objective facts are
(1) knowledge of what trial counsel did and did not advise the defendant
and (2) the existence of the applicable deportation law.
6. Postconviction: Pleas: Proof. The unavailability of the Nebraska
Postconviction Act is not an affirmative defense; it is a material ele-
ment that must be pled and proved by a defendant seeking to use the
procedure for withdrawing a plea after conviction recognized in State v.
Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
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STATE v. JERKE
Cite as 302 Neb. 372
Appeal from the District Court for Hall County: Teresa K.
Luther, Judge. Reversed and remanded with directions.
Douglas J. Peterson, Attorney General, and James D. Smith,
and Martin R. Klein, and Katherine J. Doering, Deputy Hall
County Attorneys, for appellant.
Mark Porto, of Porto Law Office, for appellee.
Kevin Ruser, of University of Nebraska College of Law
Immigration Clinic, and David Shea and Damon Hudson,
Senior Certified Law Students, for amicus curiae University of
Nebraska College of Law Immigration Clinic.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In 2012, Jedo J. Jerke entered a no contest plea to a charge
of second degree assault. He was convicted and sentenced to
a term of 4 to 6 years’ imprisonment. After completing his
sentence, Jerke moved to vacate the sentence and withdraw
the plea pursuant to the common-law procedure recognized in
State v. Gonzalez,1 arguing his trial counsel was ineffective for
failing to advise him before he entered his plea that second
degree assault was a deportable offense. The district court
granted Jerke’s motion, and the State appeals. Because we con-
clude the common-law procedure is not available to Jerke as a
matter of law, we reverse the district court’s order and remand
the cause with directions to dismiss.
FACTS
Jerke is from South Sudan, Africa, and came to the United
States in 2006 as a political refugee. He is not, and never has
been, a U.S. citizen.
1
State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
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STATE v. JERKE
Cite as 302 Neb. 372
In March 2012, Jerke was charged with two counts of assault
in the second degree and one count of criminal impersonation.
At the time, the assault charges were Class III felonies carry-
ing a sentence of 1 to 20 years’ imprisonment. Jerke informed
his appointed counsel of his immigration status when counsel
originally visited him in jail. Under federal law, a crime of vio-
lence for which a sentence of 1 year or more is imposed is an
“aggravated felony” and a deportable offense.2 Counsel did not
advise Jerke of this at any time.
Jerke originally entered not guilty pleas to each of the
charges, and a bench trial began August 6, 2012. After the
State called its first witness, who described an intoxicated
Jerke striking him in the mouth with a glass tequila bottle
and knocking out several of his teeth, Jerke informed the
court he wished to accept the State’s plea offer and enter a no
contest plea to one count of second degree assault. The plea
colloquy included an advisement pursuant to Neb. Rev. Stat.
§ 29-1819.02(1) (Reissue 2016), which provides:
Prior to acceptance of a plea of guilty or nolo contendere
to any offense punishable as a crime under state law,
except offenses designated as infractions under state law,
the court shall administer the following advisement on the
record to the defendant:
IF YOU ARE NOT A UNITED STATES CITIZEN,
YOU ARE HEREBY ADVISED THAT CONVICTION
OF THE OFFENSE FOR WHICH YOU HAVE BEEN
CHARGED MAY HAVE THE CONSEQUENCES OF
REMOVAL FROM THE UNITED STATES, OR DENIAL
OF NATURALIZATION PURSUANT TO THE LAWS
OF THE UNITED STATES.
The court accepted Jerke’s no contest plea, and subsequently
sentenced him to imprisonment for a term of 4 to 6 years.
While Jerke was serving his sentence, he learned he did
not qualify for community work release, because he had an
2
8 U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) (2012).
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STATE v. JERKE
Cite as 302 Neb. 372
“immigration hold.” Jerke did not investigate the nature of the
immigration hold during the term of his incarceration or upon
his release from prison in 2015.
[1] In November 2017, Jerke learned from immigration
authorities that he would be deported based on his assault
conviction. He then moved to vacate his conviction and with-
draw his plea pursuant to this court’s holding in Gonzalez.3
That case recognized a common-law procedure under which a
defendant may, in very limited circumstances, move to vacate
a conviction and withdraw a plea after the conviction has
become final. According to Gonzalez:
This procedure is available only when (1) the [Nebraska
Postconviction] Act[4] is not, and never was, available as a
means of asserting the ground or grounds justifying with-
drawing the plea and (2) a constitutional right is at issue.
In sum, this common-law procedure exists to safeguard
a defendant’s rights in the very rare circumstance where
due process principles require a forum for the vindication
of a constitutional right and no other forum is provided
by Nebraska law.5
In his motion, Jerke alleged his Sixth Amendment right to
counsel was violated when his trial counsel failed to advise
him of the deportation consequences of his plea-based con-
viction. Jerke alleged this constituted ineffective assistance
of counsel pursuant to the U.S. Supreme Court’s opinion in
Padilla v. Kentucky.6
After conducting an evidentiary hearing, the district court
granted Jerke’s motion. In opposing the motion, the State
had argued that Jerke could have raised his claims under
the Nebraska Postconviction Act during the period of his
3
Gonzalez, supra note 1.
4
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
5
Gonzalez, supra note 1, 285 Neb. at 949-50, 830 N.W.2d at 511.
6
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010).
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STATE v. JERKE
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incarceration, and thus could not bring a common-law claim
under Gonzalez. But the court found the State had waived this
argument by not filing a motion to dismiss.
The court entered an order that vacated the judgment of con-
viction and sentence, allowed Jerke to withdraw his plea, and
set the matter for further hearing. The State filed this appeal,
and Jerke cross-appealed. We granted Jerke’s motion to bypass
the Nebraska Court of Appeals.
ASSIGNMENTS OF ERROR
The State assigns, restated, that the district court erred in
(1) granting Jerke’s common-law motion, because Jerke had a
remedy under the Nebraska Postconviction Act, and (2) finding
trial counsel rendered ineffective assistance.
On cross-appeal, Jerke asks this court to overrule State v.
Mamer 7 and hold instead that the factual predicate of an inef-
fective assistance of counsel claim based on Padilla does not
arise until a reasonable defendant learns the actual immigration
consequences of his or her plea-based conviction.
STANDARD OF REVIEW
[2] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.8
ANALYSIS
[3] Whether the common-law procedure recognized in
Gonzalez is available to Jerke presents a question of law. We
begin our analysis with an overview of the Gonzalez holding.
State v. Gonzalez
Our 2013 decision in Gonzalez recognized that in Nebraska,
there are two statutory avenues available to a defendant seeking
7
State v. Mamer, 289 Neb. 92, 853 N.W.2d 517 (2014).
8
State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).
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STATE v. JERKE
Cite as 302 Neb. 372
to withdraw a plea after his or her conviction has become
final. The first is found in § 29-1819.02. That statute requires
that before accepting a plea of guilty or nolo contendere, a
court must give the defendant a statutory advisement regard-
ing the possible immigration consequences of conviction.9 If
the required advisement is not given, the statute allows the
defendant to move to vacate the judgment, withdraw the plea,
and enter a plea of not guilty.10 This statutory remedy is avail-
able even after the defendant has served his or her sentence.11
Here, the record shows a § 29-1819.02 advisory was given to
Jerke, and no one contends the remedy of § 29-1819.02(2) is
available to him.
The second statutory avenue is the Nebraska Postconviction
Act.12 Enacted to protect constitutional rights, this act allows a
defendant “in custody under sentence” claiming a right to be
released due to denial or infringement of a constitutional right
to move to have his or her conviction and sentence vacated
or set aside.13 A postconviction motion is not intended to be
concurrent with any other remedy existing in the courts of this
state, so if a postconviction motion states facts which, if true,
would constitute grounds for relief under another remedy, the
motion will be dismissed without prejudice.14 A postconviction
motion must be filed within 1 year of the triggering events set
out in § 29-3001(4).15
After Gonzalez recognized these two statutory means of col-
laterally attacking a final criminal conviction, it specifically
addressed whether a “common-law procedure also authorize[s]
9
§ 29-1819.02(1).
10
§ 29-1819.02(2).
11
State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).
12
§§ 29-3001 to 29-3004.
13
See § 29-3001(1).
14
See, § 29-3003; Gonzalez, supra note 1.
15
See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
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STATE v. JERKE
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[a] motion to withdraw [a] plea after [the] conviction ha[s]
become final.”16 The court in Gonzalez framed the issue as
“whether a court has jurisdiction to consider” a common-law
motion to withdraw a plea “when the motion is filed after the
underlying conviction is final.”17
Gonzalez recognized that on at least two prior occasions,
this court had refused to recognize a nonstatutory procedure
whereby defendants could raise claims related to criminal
­cases.18 In State v. El-Tabech,19 we held there was no proce-
dure by which a defendant convicted of murder could seek
state-funded DNA testing when the time period for filing a
motion for new trial based on newly discovered evidence had
passed, and therefore, we affirmed the district court’s dis-
missal of the defendant’s motion seeking such. And in State
v. Louthan,20 we held a defendant could not, in a separate
proceeding, challenge the validity of a prior conviction for
purposes of sentence enhancement, in part because no statute
authorized the defendant to do so. For the sake of complete-
ness, we note that after our decision in Gonzalez, we held in
State v. Smith 21 that the district court correctly dismissed for
lack of jurisdiction a defendant’s motion to vacate his sen-
tence based on an allegation it was unconstitutional, reasoning
the motion was not authorized by law, because the Nebraska
Postconviction Act was the defendant’s sole remedy to collat-
erally attack his conviction and sentence.
Gonzalez distinguished the procedures at issue in El-Tabech
and Louthan by reasoning they were not constitutionally
16
Gonzalez, supra note 1, 285 Neb. at 946, 830 N.W.2d at 509.
17
Id. at 944, 830 N.W.2d at 507.
18
See, State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000); State v.
Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
19
El-Tabech, supra note 18.
20
Louthan, supra note 18.
21
State v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014).
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mandated. In contrast, Gonzalez reasoned that in certain cir-
cumstances, a common-law procedure for a conviction to be
vacated and a plea withdrawn was constitutionally mandated.
Gonzalez then proceeded to identify those circumstances and
articulate the limiting principles that govern that common-
law procedure.
Gonzalez explained the common-law procedure is civil in
nature and is available in only extremely limited circum-
stances. It emphasized that the Nebraska Postconviction Act is
the primary procedure for bringing collateral attacks on final
criminal convictions and made clear that where a “defendant
has a collateral attack that could be asserted under the [a]ct,
that [a]ct is his or her sole remedy.”22 Notably, Gonzalez held
that “[o]nly if a defendant does not and never could have
asserted the basis of his or her collateral attack under the [a]ct
may he or she invoke the common-law procedure and move to
withdraw a plea after the conviction has become final.”23
Since our holding in Gonzalez, this court has considered
several cases in which a defendant sought to use the common-
law procedure.24 Because Jerke urges us to reconsider our
holding in one of those cases, we address it next.
State v. Mamer
In Mamer,25 a defendant pled guilty to a felony charge and
was convicted and sentenced. Due to credit for time served,
he was incarcerated only for a few weeks following the con-
viction. Several months after he was released, he filed a
motion seeking to vacate his plea and set aside his conviction
pursuant to the procedure set forth in Gonzalez. The motion
alleged that he was not a U.S. citizen and that his trial counsel
22
Gonzalez, supra note 1, 285 Neb. at 949, 830 N.W.2d at 510.
23
Id.
24
See, State v. Merheb, 290 Neb. 83, 858 N.W.2d 226 (2015); Mamer, supra
note 7; State v. Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013).
25
Mamer, supra note 7.
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provided ineffective assistance of counsel under Padilla 26 by
not advising him before he entered his plea that the conviction
was a deportable offense. The motion did not address why the
defendant had not raised the Padilla claim via a motion for
postconviction relief during the time he was incarcerated.
The State moved to dismiss the motion, and we treated
that motion as one to dismiss for failure to state a claim on
which relief could be granted. We then addressed the question
whether, assuming all the allegations in the motion were true,
the defendant had stated a common-law claim to withdraw his
plea and vacate his sentence. Part of our analysis focused on
whether the defendant had alleged facts, or could allege facts,
showing the Nebraska Postconviction Act was never available
to vindicate his ineffective assistance of counsel claim.
This analysis involved determining when the “factual predi-
cate” of the defendant’s ineffective assistance of counsel claim
“could have been discovered through the exercise of due
diligence.”27 We framed the question as when, in the exercise
of due diligence, the defendant “could have discovered the
important objective facts concerning both trial counsel’s defi-
cient conduct and the resulting prejudice.”28
[4,5] The factual predicate for a claim concerns whether the
important objective facts could reasonably have been discov-
ered, not when the claimant should have discovered the legal
significance of those facts.29 And when considering the factual
predicate of a claim of ineffective assistance of counsel based
on the failure to advise of deportation consequences, we found
the important objective facts are (1) knowledge of what trial
counsel did and did not advise the defendant and (2) the exis-
tence of the applicable deportation law.30
26
Padilla, supra note 6.
27
See § 29-3001(4)(b).
28
Mamer, supra note 7, 289 Neb. at 99, 853 N.W.2d at 524.
29
Id.
30
See id.
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We rejected the suggestion that the defendant could not have
discovered the factual predicate of his ineffective assistance
claim until he learned the actual immigration consequences
of his plea. Instead, we found that because the district court
had given the § 29-1918.02 advisement before accepting the
plea, the defendant could have, in the exercise of reason-
able diligence, discovered the consequences of the applicable
deportation law while he was incarcerated. As such, we found
he was unable to “demonstrate an essential element of his
[common-law] claim: that he had no other means to vindicate
the constitutional right at issue.”31 We thus held the district
court properly granted the State’s motion to dismiss.
Unavailability of Nebraska
Postconviction Act
Cannot Be Waived
Jerke’s motion seeking to vacate his sentence and withdraw
his plea, like the motion at issue in Mamer, did not allege he
was unable to bring his ineffective assistance of counsel claim
via the Nebraska Postconviction Act during the time he was
incarcerated. But unlike Mamer, the State here did not move
to dismiss the motion on that basis. Instead, the State argued
to the district court that Jerke was “procedurally barred” from
bringing a common-law claim under Gonzalez, because he
could have brought an ineffective assistance of counsel claim
under the Nebraska Postconviction Act while he was in cus-
tody. The district court, relying on Mamer, found the State had
waived this argument by not filing a motion to dismiss. The
State assigns this as error, and we agree.
In Mamer, we addressed the applicability of the Nebraska
Postconviction Act in the context of the State’s motion to
dismiss, because that is how the issue was framed by the par-
ties. But properly understood, the applicability of the act is
not an affirmative defense to a Gonzalez common-law motion
31
Id. at 101, 853 N.W.2d at 525.
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seeking to vacate a conviction and withdraw a plea. Rather, it
is something the defendant must plead and prove in order to
utilize the common-law procedure at all.
As our case law suggests, there is a hierarchy of sorts in
the available remedies for defendants seeking to vacate a con-
viction and withdraw a plea based on a Padilla-type claim. A
defendant who has not been given the statutory advisement
required by § 29-1819.02 must seek relief under that statute.
When the advisement was given and the statutory relief of
§ 29-1819.02 is unavailable, a defendant must seek relief under
the Nebraska Postconviction Act. And only when the act is not,
and never was, available, is the common-law procedure under
Gonzalez available.
[6] Here, the trial court’s reasoning effectively construed
the availability of postconviction relief as an affirmative
defense to be raised by the State. But the unavailability of the
Nebraska Postconviction Act is not an affirmative defense;
it is a material element that must be pled and proved by a
defend­ant seeking to use the Gonzalez procedure. This error
of law prevented the trial court from considering an essential
element of Jerke’s common-law claim under Gonzalez.
Nebraska Postconviction Act
Was Available to Jerke
Jerke contends the Nebraska Postconviction Act was not
available to him as a means of pursuing his ineffective assist­
ance of counsel claim, because he did not learn he was being
deported based on his conviction until after he was released
from custody. This argument requires analysis of when Jerke
could have discovered the factual predicate of his constitu-
tional claim.
The Nebraska Postconviction Act contains a 1-year limita-
tions period, which runs from the later of
(a) The date the judgment of conviction became final
by the conclusion of a direct appeal or the expiration of
the time for filing a direct appeal;
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(b) The date on which the factual predicate of the
constitutional claim or claims alleged could have been
discovered through the exercise of due diligence;
(c) The date on which an impediment created by state
action, in violation of the Constitution of the United
States or the Constitution of Nebraska or any law of this
state, is removed, if the prisoner was prevented from fil-
ing a verified motion by such state action;
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retro-
actively to cases on postconviction collateral review; or
(e) August 27, 2011.32
In his cross-appeal, Jerke asks us to overrule Mamer and
reexamine what constitutes the factual predicate of an inef-
fective assistance of counsel claim based on Padilla. He spe-
cifically asks us to find that the factual predicate of his claim
should be (1) knowledge of what his trial counsel advised him
and (2) knowledge that he would be deported based on his
plea-based conviction. He acknowledges this is inconsistent
with Mamer, but suggests the Mamer analysis is generally
unfair because it expects a defendant
to not only act as a more effective attorney than the one
he had by maneuvering through the federal immigra-
tion statutes and correctly analyzing the impact of his
criminal conviction on his immigration status, but . . . to
do so at a time when he ha[s] no reason to suspect there
was a problem because deportation proceedings had not
been initiated.33
Jerke argues that the “logical effect” of Mamer is “to place an
obligation on an untrained defendant to generate the where-
withal to perform as a more competent attorney than his
32
§ 29-3001(4).
33
Brief for appellee on cross-appeal at 17.
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actual attorney, and to do so from within the confines of
prison at a time when he has no reason to suspect a problem
to begin with.”34
Jerke’s argument mischaracterizes our holding in Mamer.
Most notably, Mamer did not hold that the factual predicate of
an ineffective assistance of counsel claim exists at a time when
a defendant has “no reason to suspect there was a problem.” To
the contrary, Mamer held that the factual predicate could have
been discovered through the exercise of reasonable diligence
once the defendant was advised by the trial court, pursuant to
§ 29-1819.02(1), that a conviction may result in immigration
consequences. Mamer reasoned that from and after the time of
that advisement, the defendant knew of a possible problem with
his immigration status and, with the exercise of due diligence,
could have discovered and raised the ineffective assistance of
trial counsel argument during the period of incarceration.
With the exception of Mamer, we have not directly analyzed
the factual predicate language of § 29-3001(4)(b) in the con-
text of an ineffective assistance of counsel claim. It is notable,
however, that language in two related federal statutes is nearly
identical. First, 28 U.S.C. § 2255(f)(4) (2012) states the 1-year
limitations period for a motion to vacate a criminal conviction
starts to run from “the date on which the facts supporting the
claim or claims presented could have been discovered through
the exercise of due diligence.” And 28 U.S.C. § 2244(d)(1)(D)
(2012) requires a state prisoner who wants collateral relief
from a federal court to file a petition within 1 year of “the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.”
Contrary to Jerke’s argument, federal case law in this area is
generally consistent with the analysis we employed in Mamer.35
34
Id. at 18.
35
See, Clarke v. U.S., 703 F.3d 1098 (7th Cir. 2013); Hasan v. Galaza, 254
F.3d 1150 (9th Cir. 2001).
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In fact, the Seventh Circuit has applied a similar analysis in a
similar situation. In Clarke v. U.S.,36 a litigant filed a § 2255
motion asking that her conviction be set aside on the ground
she was not advised that she could be removed or deported if
convicted based on her plea. The motion was filed more than
1 year after her conviction became final, and it was untimely
unless filed within 1 year of the date the facts supporting her
claim could have been discovered through the exercise of
reasonable diligence.37 The litigant admitted her lawyer had
told her there might be “‘immigration consequences’” if she
entered a guilty plea,38 but claimed he did not tell her directly
that the result of the conviction would be deportation. She
argued the 1-year statute of limitations did not begin to run
until she actually discovered she would be deported.
But the Seventh Circuit explained that the “dependence of
the statute of limitations on the petitioner’s exercise of due dil-
igence is equivalent to a rule of ‘inquiry notice.’”39 Reasoning
that the factual predicate of the litigant’s claim included the
lawyer’s failure to advise of a critical consequence of the
conviction, the court found the litigant had inquiry notice of
that factual predicate at the time of the plea, when the lawyer
told her there might be “immigration consequences.” Having
received such inquiry notice, she should have at that point
exercised due diligence to discover the facts supporting her
claim, and the statute of limitations began to run.
Contrary to the argument made to this court, Jerke was not
unaware of possible immigration consequences resulting from
his conviction until he was informed that deportation proceed-
ings had been initiated. Rather, the record affirmatively shows
that before he entered his plea, he was advised that if he was
not a U.S. citizen, conviction of the offense for which he was
36
Clarke, supra note 35.
37
§ 2255(f)(4).
38
Clarke, supra note 35, 703 F.3d at 1099.
39
Id. at 1100.
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charged could result in his removal from the United States. The
record also affirmatively shows that while incarcerated, Jerke
learned an “immigration hold” had been placed on him. These
facts, whether alone or in combination, put him on inquiry
notice of a possible problem with his immigration status
related to his conviction, and in the exercise of due diligence,
he could have discovered the factual predicate of his ineffec-
tive assistance of counsel claim during the time he was incar-
cerated. The Nebraska Postconviction Act was thus available
to Jerke as a remedy for his ineffective assistance of counsel
claim. And because the act was available, the procedure under
Gonzalez was not.
CONCLUSION
Under Gonzalez, the common-law procedure for withdraw-
ing a plea is available only when the Nebraska Postconviction
Act is not, and never was, available as a means of asserting
the ground or grounds justifying withdrawing the plea and a
constitutional right is at issue. As such, the unavailability of the
Nebraska Postconviction Act is a material element that must be
pled and proved by a defendant seeking to use the Gonzalez
procedure. The act was available to Jerke during the time he
was in custody, because he could have discovered the factual
predicate of his ineffective assistance of counsel claim through
the exercise of reasonable diligence.
Because the common-law procedure is not available to Jerke
as a matter of law, we reverse the district court’s order and
remand the cause with directions to dismiss.
R eversed and remanded with directions.