State v. Robertson , 294 Neb. 29 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/01/2016 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. ROBERTSON
Cite as 294 Neb. 29
State of Nebraska, appellee, v.
K eenon A. Robertson, appellant.
___ N.W.2d ___
Filed July 1, 2016. No. S-15-443.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Right to Counsel: Appeal and Error. Failure to
appoint counsel in a postconviction action is not error in the absence of
an abuse of discretion.
3. Pleadings: Appeal and Error. A denial of a motion to alter or amend
the judgment is reviewed for an abuse of discretion.
4. Postconviction: Constitutional Law: Proof. A defendant seeking relief
under the Nebraska Postconviction Act must show that his or her con-
viction was obtained in violation of his or her constitutional rights.
5. Postconviction: Constitutional Law: Judgments: Proof. An eviden-
tiary hearing on a motion for postconviction relief is required on an
appropriate motion containing factual allegations which, if proved,
constitute an infringement of the movant’s rights under the Nebraska or
federal Constitution, causing the judgment against the defendant to be
void or voidable.
6. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
When a district court denies postconviction relief without conducting
an evidentiary hearing, an appellate court must determine whether the
petitioner has alleged facts that would support a claim of ineffective
assistance of counsel and, if so, whether the files and records affirma-
tively show that he or she is entitled to no relief.
7. Postconviction: Effectiveness of Counsel: Proof. If the petitioner for
postconviction relief has not alleged facts which would support a claim
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of ineffective assistance of counsel or if the files and records affirma-
tively show he or she is entitled to no relief, then no evidentiary hearing
is necessary.
8. Speedy Trial: Indictments and Informations. Every person indicted
or informed against for any offense must be brought to trial within
6 months.
9. ____: ____. When a felony is involved, the 6-month speedy trial period
commences to run from the date the indictment is returned or the infor-
mation is filed.
10. Speedy Trial. Certain periods of delay are excluded from the speedy
trial calculation, including the time between the defendant’s assertion
of pretrial motions and their final disposition and the period of delay
resulting from a continuance granted at the request of the prosecuting
attorney if the grounds for the continuance fit under the relevant statu-
tory language.
11. ____. To calculate the time for speedy trial purposes, a court must
exclude the day the information was filed, count forward 6 months, back
up 1 day, and then add any time excluded to determine the last day the
defendant can be tried.
12. Speedy Trial: Appeal and Error. As a general rule, a trial court’s
determination as to whether charges should be dismissed on speedy trial
grounds is a factual question which will be affirmed on appeal unless
clearly erroneous.
13. Postconviction: Appeal and Error. An appellate court will not consider
as an assignment of error a question not presented to the district court
for disposition through a defendant’s motion for postconviction relief.
14. Postconviction: Effectiveness of Counsel: Right to Counsel: Appeal
and Error. An attorney’s failure to petition for further review on an
issue cannot be grounds for postconviction relief, in that the right to
counsel does not extend to discretionary appeals to a state’s high-
est court.
15. Postconviction. Nothing in the postconviction statutes prevents a dis-
trict court from asking the State to respond to a postconviction motion
prior to deciding whether an evidentiary hearing is warranted.
16. Rules of the Supreme Court: Postconviction. Postconviction pro-
ceedings are not governed by the Nebraska Court Rules of Pleading in
Civil Cases.
17. Actions: Rules of the Supreme Court: Postconviction. Although a
postconviction proceeding is civil in nature, it is not an ordinary civil
action in the context of either Neb. Ct. R. Pldg. § 6-1101 or Neb. Rev.
Stat. § 25-801.01 (Reissue 2008).
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18. Postconviction: Collateral Attack. Postconviction relief is a special
statutory proceeding that permits a collateral attack upon a criminal
judgment.
19. Actions: Pleadings. Civil actions are controlled by a liberal pleading
regime. A party is only required to set forth a short and plain statement
of the claim showing that the pleader is entitled to relief.
20. ____: ____. The rationale for liberal pleading rules in civil actions is
that when a party has a valid claim, he or should recover on it regard-
less of a failure to perceive the true basis of the claim at the plead-
ing stage.
21. Postconviction: Pleadings. Postconviction proceedings have their own
pleading requirements.
22. ____: ____. Nebraska’s postconviction relief statutes simply do not con-
template the opportunity to amend a pleading after the court determines
the pleading is insufficient to necessitate an evidentiary hearing.
23. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
Error. When the assigned errors in a postconviction motion before the
district court contain no justiciable issues of law or fact, it is not an
abuse of discretion to fail to appoint counsel for an indigent defendant.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
Gerald L. Soucie for appellant.
Keenon A. Robertson, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Stacy, J.
Keenon A. Robertson appeals from the district court’s denial
of his motion for postconviction relief without an evidentiary
hearing and the subsequent denial of his motion to alter or
amend the judgment. We affirm.
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STATE v. ROBERTSON
Cite as 294 Neb. 29
I. FACTS
After a jury trial, Robertson was convicted of one count of
discharging a firearm at an inhabited house, occupied build-
ing, or occupied vehicle and one count of use of a weapon to
commit a felony. He was sentenced to a total of 25 to 60 years’
imprisonment.
Robertson filed a direct appeal and was appointed different
counsel. The Nebraska Court of Appeals affirmed his convic-
tions and sentences.1 Robertson then filed a verified motion for
postconviction relief. In it, he alleged his appellate counsel was
ineffective for (1) failing to convince the Court of Appeals that
the trial court’s failure to give a defense of others instruction
was prejudicial, (2) not alleging his trial counsel was ineffec-
tive for failing to timely appeal the denial of his pretrial motion
for discharge, and (3) not filing a petition for further review
after the Court of Appeals concluded his ineffective assistance
of trial counsel claim related to juror misconduct was not
reviewable on direct appeal.
After directing the State to respond to Robertson’s motion,
the district court denied postconviction relief without conduct-
ing an evidentiary hearing. Robertson then filed a motion to
alter or amend the judgment, which the district court ultimately
denied. Robertson timely filed this appeal.
II. ASSIGNMENTS OF ERROR
Robertson assigns, restated and summarized, that (1) his
appellate counsel was ineffective for not convincing the Court
of Appeals that Robertson was prejudiced by the trial court’s
failure to give a defense of others instruction, (2) his appellate
counsel was ineffective for failing to raise on direct appeal
that trial counsel was ineffective for failing to timely appeal
from the denial of his motion for absolute discharge, (3) his
trial counsel was ineffective for failing to move for a mistrial
1
State v. Robertson, No. A-12-204, 2013 WL 599895 (Neb. App. Feb. 19,
2013) (selected for posting to court Web site).
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after a juror disclosed he had visited the scene of the crime,
(4) the district court erred in denying postconviction relief
without giving him an opportunity to amend the pleadings,
(5) the district court erred in denying his motion to alter or
amend the judgment after denying postconviction relief, and
(6) the district court erred in failing to appoint him postconvic-
tion counsel.
III. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief.2
[2] Failure to appoint counsel in a postconviction action is
not error in the absence of an abuse of discretion.3
[3] A denial of a motion to alter or amend the judgment is
reviewed for an abuse of discretion.4
IV. ANALYSIS
1. Denial of Evidentiary Hearing
[4-7] A defendant seeking relief under the Nebraska
Postconviction Act5 must show that his or her conviction was
obtained in violation of his or her constitutional rights.6 An
evidentiary hearing on a motion for postconviction relief is
required on an appropriate motion containing factual alle-
gations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution,
causing the judgment against the defendant to be void or
2
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015); State v. Baker, 286
Neb. 524, 837 N.W.2d 91 (2013).
3
State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
4
State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
5
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014).
6
See Cook, supra note 2.
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­voidable.7 When a district court denies postconviction relief
without conducting an evidentiary hearing, an appellate court
must determine whether the petitioner has alleged facts that
would support a claim of ineffective assistance of counsel and,
if so, whether the files and records affirmatively show that he
or she is entitled to no relief.8 If the petitioner has not alleged
facts which would support a claim of ineffective assist­ance
of counsel or if the files and records affirmatively show he
or she is entitled to no relief, then no evidentiary hearing
is necessary.9
(a) Lack of Defense of
Others Instruction
When this case was on direct appeal, Robertson’s counsel
assigned and argued that the trial court erred in failing to give a
defense of others jury instruction. The Court of Appeals agreed.
It reasoned, however, that because the jury rejected Robertson’s
self-defense claim, the jury necessarily would have rejected a
defense of others claim, so the Court of Appeals concluded
Robertson could not show he was prejudiced by the failure to
give the instruction. In his postconviction motion, Robertson
alleged his appellate counsel was ineffective because he failed
to “demonstrate the requisite level of outcome-changing preju-
dice” to the Court of Appeals.
Liberally construed, Robertson’s postconviction motion
alleges that had appellate counsel made different legal argu-
ments, the Court of Appeals would have reached a different
result. We conclude the files and records affirmatively show
that the Court of Appeals correctly resolved the legal issue,
so no legal argument posited by appellate counsel could have
resulted in a different outcome. The district court properly
concluded that Robertson is not entitled to an evidentiary
7
Id.
8
Id.
9
See id.
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hearing on this issue, because the files and records affirma-
tively show the claim is without merit.
(b) Motion for Discharge
Prior to trial, Robertson filed a motion for absolute dis-
charge, contending his statutory right to a speedy trial had been
violated. The district court denied the motion for discharge,
and no appeal was taken.
Later, on direct appeal, Robertson’s counsel alleged the
district court erred in granting the State’s motion to continue
just prior to the date trial was scheduled to commence. The
Court of Appeals construed this as an attempt by Robertson to
argue that the motion for discharge should have been granted.
It declined to address the issue on direct appeal, because the
denial of the motion for discharge was a final order from which
no timely appeal had been taken.
In his postconviction motion, Robertson presents a lay-
ered claim of ineffective assistance of counsel. He alleges
his appellate counsel was ineffective for failing to assign
as error on direct appeal that his trial counsel was ineffec-
tive in failing to timely appeal from the denial of the motion
to discharge. He alleges this failure prevented the Court of
Appeals from considering the issue of whether granting the
continuance violated his right to a speedy trial. In its order
denying postconviction relief without an evidentiary hear-
ing, the district court found that the record showed the con-
tinuance was supported by good cause and concluded that
the speedy trial clock was tolled during the time period of
the continuance.
[8-11] We agree with the district court that the files and
records affirmatively disprove this layered ineffective assist­
ance of counsel claim. According to Neb. Rev. Stat. § 29-1207
(Reissue 2008), every person indicted or informed against for
any offense must be brought to trial within 6 months. When
a felony is involved, the 6-month speedy trial period com-
mences to run from the date the indictment is returned or the
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information is filed.10 Certain periods of delay, however, are
excluded from the speedy trial computation, including the
time between the defendant’s assertion of pretrial motions and
their final disposition and the period of delay resulting from
a continuance granted at the request of the prosecuting attor-
ney if the grounds for the continuance fit under the relevant
statutory language.11 To calculate the time for speedy trial
purposes, a court must exclude the day the information was
filed, count forward 6 months, back up 1 day, and then add any
time excluded under § 29-1207(4) to determine the last day the
defendant can be tried.12
Here, the State filed the information on May 19, 2010, so,
without any excluded time, Robertson had to be brought to trial
by November 19. The record shows Robertson filed a motion
for discovery depositions on August 5, and the motion was
granted on September 30. This period of 56 days was exclud-
able under § 29-1207(4)(a) as a period of delay resulting from
the filing of a pretrial motion by Robertson.
The record also shows the State moved for a continuance
on December 10, 2010, which the district court granted; trial
was rescheduled for April 11, 2011. This continuance resulted
in a delay of 122 days. The period of delay resulting from a
continuance granted at the request of the State is excludable
if it is granted to allow additional time to prepare a case and
“additional time is justified because of the exceptional circum-
stances of the case.”13 A period of delay can also be excludable
if it is not specifically enumerated in the statute but a court
finds there is “good cause” for the delay.14
The record shows the State asked for the continuance
because the original prosecutor was on maternity leave, the
10
See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
11
See § 29-1207(4)(a) and (c).
12
Williams, supra note 10.
13
§ 29-1207(4)(c)(ii).
14
§ 29-1207(4)(f).
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case was set for trial with 11 days’ notice, and it faced sig-
nificant practical and logistical issues in assembling relevant
evidence. The record further shows the information charged
Robertson with eight separate counts, including four counts of
attempted murder and four counts of using a deadly weapon to
commit a felony. The district court noted that it did not recall
ever continuing a trial for good cause on the State’s motion,
but found the unique circumstances presented amounted to
good cause and granted the motion to continue.
[12] As a general rule, a trial court’s determination as to
whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless
clearly erroneous.15 Here, the trial court’s finding of good
cause for the continuance was not clearly erroneous, so the
122 days related to the continuance was properly excluded
from the speedy trial calculation. Adding all the time excluded
to November 19, 2010, shows that Robertson had to be
brought to trial by May 16, 2011. Because trial occurred on
April 11, the files and records affirmatively show Robertson
was entitled to no relief on his claim that trial counsel was
ineffective in failing to appeal the denial of Robertson’s
motion for discharge.
(c) Motion for Mistrial
On direct appeal, Robertson assigned and argued that his
trial counsel was ineffective for failing to move for a mis-
trial after discovering juror misconduct. The Court of Appeals
found the record was insufficient to resolve the claim on
direct appeal.
[13] In his postconviction brief, Robertson assigns and
argues he was entitled to an evidentiary hearing on this issue.
But our review of the record demonstrates he did not assert
such a claim in his motion for postconviction relief. An
appellate court will not consider as an assignment of error
15
State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
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a question not presented to the district court for disposition
through a defendant’s motion for postconviction relief.16
In his motion for postconviction relief, Robertson did not
allege his trial counsel was ineffective for failing to move for a
mistrial. Instead, he alleged his appellate counsel was ineffec-
tive for not filing a petition for further review after the Court
of Appeals declined to address this issue on direct appeal.
The district court considered this claim and found Robertson’s
postconviction motion failed to allege facts sufficient to show
a violation of his constitutional rights.
[14] We agree. An attorney’s failure to petition for further
review on an issue cannot be grounds for postconviction relief,
in that the right to counsel does not extend to discretionary
appeals to a state’s highest court.17 Robertson failed to allege
facts sufficient to entitle him to an evidentiary hearing on
this issue.
2. Opportunity to A mend
Robertson assigns that the district court erred in denying his
postconviction motion without giving him an opportunity to
amend his pleading. The record demonstrates that Robertson
did not request leave to amend his postconviction motion at
any point prior to the time the district court denied postconvic-
tion relief. Robertson acknowledges this, but argues he did not
ask leave to amend, because the procedure used by the court
was improper and misled him into thinking his motion was suf-
ficiently pled.
Robertson’s argument is based on a misreading of the lan-
guage of § 29-3001(2), which provides:
Unless the [postconviction] motion and the files and
records of the case show . . . that the prisoner is entitled
to no relief, the court shall cause notice [of the motion] to
16
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
17
State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
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be served on the county attorney, grant a prompt hearing
thereon, and determine the issues and make findings of
fact and conclusions of law with respect thereto.
Robertson argues that after he filed his postconviction motion,
the district court asked the State to respond. He contends the
request for a response led him to believe, based on his reading
of § 29-3001(2), that he did not need to amend his pleadings,
because the court had determined he was entitled to an eviden-
tiary hearing.
[15] We find this argument lacks merit. Nothing in the post-
conviction statutes prevents a district court from asking the
State to respond to a postconviction motion prior to deciding
whether an evidentiary hearing is warranted. This court has
approved similar procedures in other cases.18 In addition, the
order issued here specifically informed Robertson that after
“the filing of a response by the State, the Court will determine
whether a hearing should be scheduled.”
The process used by the district court was not improper and
did not deny Robertson an opportunity to timely request leave
to amend his postconviction motion. This assignment of error
is meritless.
3. Motion to A lter or A mend
After his motion for postconviction relief was denied with-
out an evidentiary hearing, Robertson filed a motion to alter
or amend the judgment, which the district court denied. In
his motion asking to amend the judgment, Robertson raised
essentially the same ineffective assistance of counsel claims he
now urges on appeal. For the same reasons discussed above in
concluding Robertson’s ineffective assistance of counsel claims
are meritless, we conclude the district court did not abuse its
discretion in denying Robertson’s motion to alter or amend
the judgment.
18
See, State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007); State v.
Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
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For the sake of completeness, we observe that within his
motion to alter or amend, Robertson also argued he should be
given leave to amend his postconviction motion pursuant to
Neb. Ct. R. Pldg. § 6-1115(a). Though not formally denomi-
nated as a motion to amend, we liberally construe this as a
request to amend his postconviction motion after the court had
ruled on the motion. And because Robertson complains on
appeal that he was not allowed to amend his postconviction
motion, we proceed to consider whether the district court erred
in that regard.
Robertson sought leave to amend his motion only after the
district court had ruled on the postconviction motion, con-
cluding it did not warrant an evidentiary hearing and deny-
ing postconviction relief. We have held that an order denying
an evidentiary hearing on a postconviction motion is a final,
appealable order.19 So Robertson’s motion to alter or amend
was not made until after a final order had been entered.
In State v. Mata,20 we considered whether it was an abuse of
discretion to deny a request to amend a postconviction action
made before the court had ruled on the postconviction motion.
In doing so, we stated the prisoner’s ability to amend his post-
conviction motion was “governed by . . . § 6-1115(a).”21 We
then concluded the district court abused its discretion in deny-
ing leave to amend, because § 6-1115(a) provides that leave to
amend shall be freely given when justice so requires.
[16] While we adhere to our ultimate holding in Mata that
it was an abuse of discretion to deny the prisoner’s request to
amend his postconviction motion, we take this opportunity to
distinguish Mata and clarify that postconviction proceedings
are not “governed” by the Nebraska Court Rules of Pleading
in Civil Cases.
19
State v. Banks, 289 Neb. 600, 856 N.W.2d 305 (2014).
20
State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010).
21
Id. at 854, 790 N.W.2d at 719.
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[17,18] The rules of civil pleading apply to “civil actions.”22
Although a postconviction proceeding is civil in nature,23 it is
not an ordinary civil action in the context of either Neb. Ct. R.
Pldg. § 6-1101 or § 25-801.01.24 Nowhere does the postconvic-
tion statute characterize the proceeding as an “action”; rather,
the postconviction statute authorizes filing a “verified motion”
in the criminal case.25 In contrast to a civil action, which typi-
cally results in a judgment or decree,26 postconviction relief
is a special statutory proceeding that permits collateral attack
upon a criminal judgment27 and results in an order either sus-
taining or overruling the motion.28 This collateral proceeding
is “cumulative” and “not intended to be concurrent with any
other remedy existing in the courts of this state.”29 It normally
is invoked only after the prisoner has failed to secure relief
through a direct appeal of his or her conviction.30
[19,20] Civil actions are controlled by a liberal pleading
regime. A party is only required to set forth a short and plain
statement of the claim showing that the pleader is entitled to
relief.31 The party is not required to plead legal theories or cite
22
Neb. Rev. Stat. § 25-801.01 (Reissue 2008).
23
See § 29-3001(2).
24
See Neb. Rev. Stat. § 25-101 (Reissue 2008) (abolishing distinction
between actions at law and equity actions, and in their place recognizing
one form of action, “which shall be called a civil action”).
25
§ 29-3001(1).
26
See Black’s Law Dictionary 35 (10th ed. 2014).
27
See State v. Smith, 288 Neb. 797, 800, 851 N.W.2d 665, 668 (2014)
(“Nebraska Postconviction Act is the primary procedure for bringing
collateral attacks on final judgments in criminal cases based upon
constitutional principles”).
28
§ 29-3002.
29
§ 29-3003.
30
See State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993).
31
Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786
N.W.2d 655 (2010).
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appropriate statutes so long as the pleading gives fair notice
of the claims asserted.32 The rationale for this liberal notice
pleading standard is that when a party has a valid claim, he or
she should recover on it regardless of a failure to perceive the
true basis of the claim at the pleading stage.33 The directive in
§ 6-1115 that leave of court to amend a party’s pleading “shall
be freely given when justice so requires” is consistent with the
liberal pleading philosophy in civil actions.
But the liberal pleading rules that govern civil actions are
inconsistent with postconviction proceedings. And grafting the
civil pleading rules onto postconviction proceedings is prob-
lematic for several reasons.
[21] First, postconviction proceedings have their own
pleading requirements,34 and extending civil pleading rules
to postconviction proceedings is unnecessary. According to
§ 29-3001(1), a prisoner claiming a right to be released due
to a constitutional violation may file a verified motion “stat-
ing the grounds relied upon and asking the court to vacate or
set aside the sentence.” The court shall grant a prompt hearing
on the motion “[u]nless the motion and the files and records
of the case show to the satisfaction of the court that the pris-
oner is entitled to no relief.”35 And there is a 1-year period of
limitation applicable to the filing of a motion for postconvic-
tion relief.36
Second, the statutory pleading requirements for postcon-
viction motions under § 29-3001 are entirely inconsistent
with the pleading rules for civil actions. The manner in
which postconviction motions and civil pleadings are filed
and served is different,37 the types of pleadings permitted
32
Id.
33
Id.
34
See State v. Manning, 18 Neb. Ct. App. 545, 789 N.W.2d 54 (2010).
35
§ 29-3001(2).
36
See § 29-3001(4).
37
Compare § 29-3001(4) and Neb. Ct. R. Pldg. § 6-1105 (rev. 2016).
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are different,38 and the particulars of stating claims for relief
are different.39
Finally, applying rules of civil pleading and procedure to
postconviction motions has the practical effect of expanding the
scope of a statutory proceeding that the Legislature intended to
be limited in scope and summary in nature. Postconviction
relief is a very narrow category of relief, available only to
remedy prejudicial constitutional violations.40 As this court
stated shortly after the postconviction procedure was adopted,
it is “intended to provide relief in those cases where a miscar-
riage of justice may have occurred, and not to be a procedure
to secure a routine review for any defendant dissatisfied with
his sentence.”41 This court added that “[t]o hold otherwise
will be to permit defendants to misuse and abuse a remedy
intended to provide relief for those exceptional cases where
the rights of a defendant have been ignored or abused.”42 And
this court quickly recognized that the postconviction statute
was a “comprehensive . . . measure embracing both federal and
state constitutional claims. Its procedures were intended to be
swift, simple, and easily invoked.”43 This court also quickly
rejected postconviction motions pleading “mere conclusions
evidently designed to bring the defendant within the scope
of [court] decisions . . . without alleging the specific facts
which are alleged as violative of the constitutional rights of
the defendant.”44
Because extending civil pleading rules to postconviction
proceedings is unwise and unnecessary, we now clarify that
38
Compare § 29-3001(4) and Neb. Ct. R. Pldg. § 6-1107.
39
Compare § 29-3001(4) and Neb. Ct. R. Pldg. § 6-1108.
40
State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).
41
State v. Clingerman, 180 Neb. 344, 351, 142 N.W.2d 765, 770 (1966).
42
Id.
43
State v. Losieau, 180 Neb. 696, 698, 144 N.W.2d 435, 436 (1966).
44
State v. Erving, 180 Neb. 680, 684-85, 144 N.W.2d 424, 428 (1966).
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civil pleading rules do not apply to postconviction proceedings,
and we expressly disapprove of language in Mata suggest-
ing otherwise.
[22] The Court of Appeals addressed a factual situation
similar to the one before us in State v. Manning.45 There, a
prisoner requested leave to amend his postconviction motion
after the court had determined the motion was insufficient to
grant a hearing and postconviction relief had been denied. The
motion to amend was denied, and the prisoner appealed, claim-
ing the court abused its discretion in not freely granting leave
to amend. In contrasting postconviction proceedings from regu-
lar civil proceedings, the Court of Appeals observed that post-
conviction relief under § 29-3001 is a very narrow category of
relief, subject to specific statutory pleading requirements. The
Court of Appeals correctly observed that Nebraska’s postcon-
viction relief statutes do not authorize a prisoner to amend a
pleading after the court has determined it is insufficient to war-
rant an evidentiary hearing. To the contrary, the postconviction
statutes provide that when no showing of a constitutional viola-
tion is made in the pleading, the request for a hearing should
be denied.46 As such, Nebraska’s postconviction relief statutes
simply do not contemplate the opportunity to amend a pleading
after the court determines the pleading is insufficient to neces-
sitate an evidentiary hearing.
An order denying an evidentiary hearing on a postconviction
motion is a final, appealable order,47 and allowing a prisoner
to amend a postconviction motion after a final order has been
entered runs contrary to the policy of encouraging finality
in litigation and expeditious resolution of claims. Given that
Robertson did not request leave to amend his postconviction
motion until after the court had denied postconviction relief,
the district court did not err in denying leave to amend.
45
State v. Manning, 18 Neb. Ct. App. 545, 789 N.W.2d 54 (2010).
46
Id.
47
State v. Banks, 289 Neb. 600, 856 N.W.2d 305 (2014).
- 45 -
Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. ROBERTSON
Cite as 294 Neb. 29
4. Failure to A ppoint Counsel
[23] Finally, Robertson assigns that the district court erred
in failing to appoint counsel to represent him in his postcon-
viction action. When the assigned errors in a postconviction
motion before the district court contain no justiciable issues of
law or fact, it is not an abuse of discretion to fail to appoint
counsel for an indigent defendant.48 Because we conclude
Robertson’s motion did not contain justiciable issues of law or
fact, we likewise conclude the district court did not abuse its
discretion in declining to appoint postconviction counsel.
V. CONCLUSION
The district court properly denied Robertson’s motion for
postconviction relief, because the files and records affirma-
tively show he is not entitled to relief on the claims he asserts.
There was no error in the procedure utilized by the district
court or in its failure to allow Robertson to amend his plead-
ings postjudgment. We affirm the district court’s denial of post-
conviction relief without an evidentiary hearing.
A ffirmed.
48
Armendariz, supra note 3.