State v. Hunt ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HUNT
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
THOMAS R. HUNT, APPELLANT.
Filed December 8, 2020. No. A-20-241.
Appeal from the District Court for Lincoln County: MICHAEL E. PICCOLO, Judge. Affirmed.
Jeffrey A. Wagner and Kyle J. Flentje, of Wagner, Meehan & Watson, L.L.P., for
appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.
MOORE, Judge.
INTRODUCTION
Thomas R. Hunt appeals from an order of the District Court for Lincoln County, Nebraska,
denying his motion for postconviction relief and petition for writ of error coram nobis. For the
reasons set forth below, we affirm.
BACKGROUND
On November 23, 2009, the State filed an information charging Hunt with first degree
sexual assault of a child pursuant to Neb. Rev. Stat. § 28-319.01 (Cum. Supp. 2012), a Class IB
felony. Trial was initially scheduled for February 23, 2010, but through a series of motions to
continue filed by Hunt, trial was rescheduled numerous times. On December 14, Hunt pled no
contest to an amended information charging him with first degree sexual assault of a child pursuant
to Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016), a Class II felony. The trial court accepted Hunt’s
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plea and found him guilty. The trial court subsequently sentenced Hunt to 25 to 50 years in prison,
which sentence was memorialized in an order entered on February 9, 2011. No direct appeal was
filed.
On July 15, 2019, Hunt filed a combined verified motion for postconviction relief and
petition for writ of error coram nobis. Hunt’s motion first claimed his conviction was obtained as
a result of prosecutorial misconduct in violation of Hunt’s due process right to a speedy trial.
Second, Hunt’s motion claimed that he received ineffective assistance of trial counsel because trial
counsel (1) made representations to others that he would take Hunt’s money but not defend him,
(2) failed to file a direct appeal when instructed to do so, (3) failed to disclose a conflict of interest
when counsel allegedly represented the father of the victim in an unrelated matter, and (4) failed
to conduct any formal discovery. Hunt also alleged that after sentencing, he retained another
attorney to pursue postconviction relief, but that attorney failed to file a postconviction motion.
The petition for writ of error coram nobis incorporated the allegations of the postconviction motion
and asked that the petition be granted. The motion and petition did not allege that Hunt was unable
to discover any of the alleged deficiencies through the exercise of due diligence.
The district court entered an order denying Hunt’s request for postconviction relief and a
writ of error coram nobis without further hearing. The court found that Hunt’s motion for
postconviction relief was time barred and that his claims were not appropriate for coram nobis
relief.
Hunt now appeals.
ASSIGNMENTS OF ERROR
Hunt assigns that the district court erred in finding that his motion for post-conviction relief
was time barred pursuant to Neb. Rev. Stat. § 29-3001(4) (Reissue 2016), and in failing to grant
an evidentiary hearing on his motion for postconviction relief and his petition for writ of error
coram nobis.
STANDARD OF REVIEW
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. State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). Whether a claim
raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed
independently of the lower court’s ruling. Id.If the facts in a case are undisputed, the issue as to when the statute of limitations begins
to run is a question of law. State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019). When reviewing
a question of law, an appellate court resolves the question independently of the lower court’s
conclusion. Id.The findings of the district court in connection with its ruling on a motion for a writ of
error coram nobis will not be disturbed unless they are clearly erroneous. State v. Harrison, 293
Neb. 1000, 881 N.W.2d 860 (2016).
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ANALYSIS
Timeliness of Hunt’s Motion for Postconviction Relief.
Hunt first assigns that the district court erred when it found that Hunt’s claims in his motion
for postconviction relief were time barred pursuant to § 29-3001(4), which states:
A one-year period of limitation shall apply to the filing of a verified motion for
post-conviction relief. The one-year limitation period shall run 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;
(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 filing 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 retroactively to cases on postconviction
collateral review; or
(e) August 27, 2011.
Hunt’s conviction became final on March 11, 2011, and unless any of the triggering events
extended the time, his deadline to file a postconviction action would have been March 11, 2012; a
year after the date his conviction became final by the expiration of the time for filing a direct
appeal. Hunt did not file his motion for postconviction relief until July 15, 2019. Hunt argues in
his brief on appeal that the triggering event in § 29-3001(4)(b) applies, claiming that “after his
guilty plea,” he learned that his attorney was representing the father of the alleged victim in another
matter, a fact that could not have been discovered by due diligence at the time of trial. He also
asserts that trial counsel’s representations to others that he would he would take Hunt’s money but
not defend him triggered the exception under § 29-3001(4)(b), but that the district court failed to
address this allegation. However, Hunt did not specifically allege in his motion when he learned
of these alleged facts, or show that he filed his motion within one year of the discovery of these
facts.
Under § 29-3001(4)(b), Hunt had 1 year from the date on which the factual predicate of his
claim of ineffective assistance of counsel could have been discovered through the exercise of due
diligence to file his postconviction action. Newly discovered evidence must actually be newly
discovered, and it may not be evidence which could have been discovered and produced at trial
with reasonable diligence. State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017). The discovery
through due diligence of the factual predicate for a claim concerns whether the important objective
facts could reasonably have been discovered, not when the claimant should have discovered the
legal significance of those facts. State v. Mamer, 289 Neb. 92, 853 N.W.2d 517 (2014). Stated
another way, the limitations period “begins when the facts underlying the claim could reasonably
be discovered” which is “distinct from discovering that those facts are actionable.” Id. at 99, 853
N.W.2d at 524.
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Here, Hunt not only failed to allege when he learned of the purported conflict of interest
and counsel’s alleged representation to others regarding not defending Hunt, he also failed to allege
that these facts could not have been discovered with due diligence at the time of the plea hearing,
or prior to the filing of his motion for postconviction relief. Without any allegation as to why Hunt
was unable to discover these facts prior to the filing of his postconviction motion, we cannot say
the district court erred in finding the claim time barred without an exception under
§ 29-3001(4)(b).
Hunt also claims that his trial attorney failed to conduct formal discovery, and failed to file
a direct appeal. He also claims his constitutional right to a speedy trial was violated by
prosecutorial misconduct. These claims would have been known by Hunt at the time of his plea
hearing or within 30 days of the imposition of the sentence, and do not fall under § 29-3001(4)(b).
Therefore, these claims are also time barred. We find that the district court did not err in finding
that his motion for postconviction relief was time barred without exception pursuant to
§ 29-3001(4).
Evidentiary Hearing for Motion for Postconviction Relief.
Hunt assigns that the district court erred by failing to grant an evidentiary hearing for his
claims within his motion for postconviction relief. A court must grant an evidentiary hearing to
resolve the claims in a postconviction motion when the motion contains factual allegations which,
if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal
Constitution. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019). If a postconviction motion
alleges only conclusions of fact or law, or if the records and files in the case affirmatively show
that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.
Id.Hunt argues that he is entitled to an evidentiary hearing because there is nothing in the
record in regards to when the discovery of the conflict of interest and trial counsel’s alleged
representations to others occurred. However, Hunt would have known when such information was
discovered yet he failed to allege when the discovery occurred or that it could not have been
discovered earlier through the exercise of due diligence. The district court was not required to
grant an evidentiary hearing to flesh out details which could have been pled. A defendant is
required to make specific allegations instead of mere conclusions of fact or law in order to receive
an evidentiary hearing for postconviction relief. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417(2010). And, as noted above, the remaining claims that trial counsel was ineffective for failing to
conduct discovery and file a direct appeal, and of prosecutorial misconduct, would have been
known to Hunt either at the time of his plea hearing or at the time a direct appeal was required to
be filed. Because those claims are time barred, Hunt is entitled to no relief on the claims and the
district court was not required to grant an evidentiary hearing on these claims.
The district court did not err in denying Hunt’s motion for postconviction relief without an
evidentiary hearing.
Hunt also alleges that another attorney failed to file a postconviction motion after
sentencing. However, we have consistently held there is no constitutional right to effective
assistance of counsel in a postconviction proceeding. State v. Amaya, 298 Neb. 70, 902 N.W.2d
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675 (2017). Therefore, the district court did not err in failing to grant an evidentiary hearing
regarding this claim.
Evidentiary Hearing for Petition for Writ of Error Coram Nobis.
The purpose of the writ of error coram nobis is to bring before the court rendering judgment
matters of fact which, if known at the time the judgment was rendered, would have prevented its
rendition. State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016). The writ reaches only matters
of fact unknown to the applicant at the time of judgment, not discoverable through reasonable
diligence, and which are of a nature that, if known by the court, would have prevented entry of
judgment. Id. The writ is not available to correct errors of law. Id. Claims of error or misconduct
at trial and ineffective assistance of counsel claims are inappropriate for coram nobis relief. State
v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016).
Hunt assigns error to the trial court’s refusal to grant an evidentiary hearing on his petition
for writ of error coram nobis. Hunt argues that had the trial court been apprised of the facts
regarding trial counsel’s alleged ineffective assistance, it would not have accepted his plea. The
burden of proof in a proceeding to obtain a writ of error coram nobis is upon the applicant claiming
error, and the alleged error of fact must be such as would have prevented a conviction; it is not
enough to show that it might have caused a different result. State v. Hessler, supra. Hunt failed to
allege that trial counsel’s ineffectiveness would have prevented a conviction; he only argues that
the trial court would not have accepted his plea. This may have caused a different result; i.e., new
counsel may have been appointed or retained, the case could have proceeded to trial, or the parties
may have entered into another plea agreement. A different result short of preventing a conviction
does not provide a basis for coram nobis relief. We find no clear error in the district court’s
determination that Hunt failed to establish a claim for coram nobis relief. The district court did not
err in refusing to grant a further hearing on the petition.
CONCLUSION
For the reasons set forth above, we affirm the decision of the trial court denying Hunt’s
motion for postconviction relief and refusing to grant evidentiary hearings on his motion for
postconviction relief and petition for writ of error coram nobis.
AFFIRMED.
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