O'Neal v. State

Nebraska Advance Sheets
O’NEAL v. STATE 943
Cite as 290 Neb. 943
K eeva T. O’Neal, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___
Filed May 22, 2015. No. S-14-262.
1. Habeas Corpus: Appeal and Error. On appeal of a habeas petition, an appellate
court reviews the trial court’s factual findings for clear error and its conclusions
of law de novo.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the decisions
made by the lower court.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. ____: ____. If the court from which an appeal was taken lacked jurisdiction, then
the appellate court acquires no jurisdiction.
5. Courts: Habeas Corpus: Jurisdiction: Venue. By statute, any and all district
courts in Nebraska have subject matter jurisdiction of claims for habeas corpus
relief. The determination of which district court should hear a habeas petition is
essentially a question of venue and not one of jurisdiction.
6. Venue: Waiver. Unlike jurisdiction, venue is a personal privilege which, if not
raised by a party, is waived unless prohibited by law.
7. ____: ____. A claim of improper venue is a matter that may be waived by failure
to make a timely objection.
8. Venue: Time. For an objection to venue to be timely in a civil case, it must be
raised before or in the defendant’s answer.
9. Jurisdiction: Venue: Words and Phrases. Jurisdiction and venue are not syn-
onymous and interchangeable functions in litigation.
10. Habeas Corpus: Jurisdiction. The failure to attach a copy of the relevant com-
mitment order to a petition for a writ of habeas corpus does not prevent a court
from exercising jurisdiction over that petition.
11. Appeal and Error. A proper result will not be reversed merely because it was
reached for the wrong reason.
12. Constitutional Law: Habeas Corpus. A writ of habeas corpus in the State of
Nebraska is quite limited in comparison to those of federal courts, which allow a
writ of habeas corpus to a prisoner when he or she is in custody in violation of
the federal Constitution, law, or treaties of the United States.
13. Judgments: Collateral Attack. Only a void judgment may be collater-
ally attacked.
14. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will not lie to
discharge a person from a sentence of penal servitude where the court imposing
the sentence had jurisdiction of the offense and the person of the defendant, and
the sentence was within the power of the court to impose.
15. Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors,
and its use will not be permitted for that purpose.
Nebraska Advance Sheets
944 290 NEBRASKA REPORTS
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Renee L. Mathias, of Schaefer Shapiro, L.L.P., for
appellant.
Keeva T. O’Neal, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
I. NATURE OF CASE
Keeva T. O’Neal, an inmate at the Nebraska State Penitentiary
in Lincoln, Nebraska, appeals from the order of the district
court which denied his petition for a writ of habeas corpus.
Because we find that the district court reached the correct
result, we affirm.
II. SCOPE OF REVIEW
[1] On appeal of a habeas petition, an appellate court
reviews the trial court’s factual findings for clear error and its
conclusions of law de novo. Anderson v. Houston, 274 Neb.
916, 744 N.W.2d 410 (2008).
[2] When a jurisdictional question does not involve a
factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent
of the decisions made by the lower court. Shaffer v. Nebraska
Dept. of Health & Human Servs., 289 Neb. 740, 857 N.W.2d
313 (2014).
III. FACTS
In 1997, pursuant to a plea agreement, O’Neal pled no
contest to, and was convicted of, three counts of attempted
first degree assault and two counts of use of a deadly weapon
to commit a felony. Count I (one of the assault counts) and
count II (the corresponding use count) related to actions
Nebraska Advance Sheets
O’NEAL v. STATE 945
Cite as 290 Neb. 943
O’Neal took against an “Edward Duncan.” He was sentenced
to 4 to 5 years’ imprisonment for the assault convictions and
20 to 25 years’ imprisonment on the use of a weapon con-
victions. The sentencing court ordered all five sentences to
run consecutively.
Following sentencing, O’Neal filed a direct appeal, but it
was dismissed for failure to file a poverty affidavit. He then
moved for postconviction relief, alleging ineffective assistance
of counsel. The district court concluded that his trial counsel
had failed to adequately perfect a direct appeal and granted
relief in the form of a new direct appeal.
On direct appeal, the Nebraska Court of Appeals affirmed
O’Neal’s convictions and sentences for use of a deadly weapon
to commit a felony, affirmed his convictions for attempted
first degree assault, and modified the sentences imposed for
attempted first degree assault to 20 months’ to 5 years’ impris-
onment each. See State v. O’Neal, No. A-04-536, 2005 WL
1022027 (Neb. App. May 3, 2005) (not designated for per-
manent publication). The Court of Appeals concluded that
O’Neal’s assignments of error either lacked merit or were
waived by his no contest pleas. In particular, it rejected
O’Neal’s argument that the information on which he was
charged was defective for failing to properly identify the vic-
tim of counts I and II.
On August 23, 2013, O’Neal filed a pro se petition for
a writ of habeas corpus in the district court for Douglas
County. He alleged that his imprisonment for counts I and
II was the equivalent of being committed for crimes “which
never occurred,” and thus was a violation of the 5th and 14th
Amendments, because the victim of counts I and II was an
“Allen Duncan” and not the “Edward Duncan” identified
in the amended information. He further alleged that he was
entitled to discharge, because at the time of his application,
he had “already been confined for a period which exceed[ed]
the terms of imprisonment imposed on counts III through V”
and he was being imprisoned only on counts I and II. O’Neal’s
petition did not include a copy of the relevant commitment or
detention order.
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946 290 NEBRASKA REPORTS
In January 2014, the district court entered an order
“request[ing] that the State file a written response to [O’Neal’s]
Application for Writ of Habeas Corpus.” The State complied
with this request, and on March 3, it filed a response with the
court. In its response, the State argued that O’Neal’s petition
“should be denied for lack of jurisdiction.” It explained:
[O’Neal] acknowledges in his writ that he is currently
serving a term of incarceration and that he is currently in
the Lincoln Penitentiary, which is not located in Douglas
County. Thus, this Court lacks jurisdiction. See Addison
v. Parratt, 204 Neb. 656, 284 N.W.2d 574 (1979) (find-
ing dismissal by the district court in Sheridan County of
a petition for habeas corpus appropriate when the peti-
tioner and respondent were residing in Lancaster County);
Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920) (“We
are therefore of the opinion that an application for a writ
of habeas corpus to release a prisoner confined under sen-
tence of court must be brought in the county where the
prisoner is confined.”).
In its response, the State also argued that habeas relief should
be denied on the merits of O’Neal’s petition.
On March 7, 2014, the district court entered an order deny-
ing O’Neal’s petition for a writ of habeas corpus due to lack of
jurisdiction. The court concluded that under Addison v. Parratt,
204 Neb. 656, 284 N.W.2d 574 (1979), it did not have juris-
diction to consider a habeas petition from O’Neal, because he
was “currently serving his incarceration at the penitentiary in
Lincoln, Nebraska, which is not in Douglas County.” The court
also concluded that even if it had jurisdiction, O’Neal was not
entitled to habeas relief.
O’Neal timely appeals. Pursuant to our statutory authority
to regulate the dockets of the appellate courts of this state, we
moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
IV. ASSIGNMENT OF ERROR
O’Neal assigns that the district court erred in denying his
application for a writ of habeas corpus.
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O’NEAL v. STATE 947
Cite as 290 Neb. 943
V. ANALYSIS
1. Jurisdiction
[3,4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Big John’s Billiards v.
State, 283 Neb. 496, 811 N.W.2d 205 (2012). If the court from
which an appeal was taken lacked jurisdiction, then the appel-
late court acquires no jurisdiction. Id.
In the instant case, the jurisdiction of the district court to
consider O’Neal’s petition for a writ of habeas corpus has
been challenged on two separate grounds. The district court
concluded that it lacked jurisdiction over O’Neal’s petition,
because he was not confined within the county in which the
court sat. The State also argues that the district court lacked
jurisdiction, because O’Neal failed to attach a copy of his com-
mitment order to the petition, as required by Neb. Rev. Stat.
§ 29-2801 (Reissue 2008). As we explain below, we conclude
that neither O’Neal’s failure to file his habeas petition in the
county of his confinement nor his failure to attach a copy of
his commitment order to his petition deprived the district court
of jurisdiction.
(a) Petition Not Filed in County
of Confinement
The first jurisdictional question is whether the district court
was deprived of jurisdiction by virtue of the fact that O’Neal
was not confined within the county where the action was com-
menced. We conclude that it was not.
It has long been the general rule that a petition for a writ
of habeas corpus should be filed in the county where the peti-
tioner is confined. See, Addison v. Parratt, 204 Neb. 656, 284
N.W.2d 574 (1979); Gillard v. Clark, 105 Neb. 84, 179 N.W.
396 (1920); In re White, 33 Neb. 812, 51 N.W. 287 (1892).
For many years, our case law viewed the failure to comply
with this rule as creating a jurisdictional issue. In Gillard v.
Clark, 105 Neb. at 87, 179 N.W. at 398, we held that where
habeas proceedings were initiated in a county other than where
the petitioner was confined, it was “the duty of the court” to
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948 290 NEBRASKA REPORTS
dismiss the petition for lack of jurisdiction unless the officer in
whose custody the prisoner was held brought the prisoner into
the court and submitted to its jurisdiction without objection. In
Addison v. Parratt, we again held that where habeas proceed-
ings were initiated in a county other than where the petitioner
was confined, it was “‘the duty of the court, on objection to its
jurisdiction, to dismiss the proceedings.’” See 204 Neb. at 658,
284 N.W.2d at 575 (quoting Gillard v. Clark, supra).
[5] But in Anderson v. Houston, 274 Neb. 916, 744 N.W.2d
410 (2008), we revisited, and ultimately rejected, the proposi-
tion that failing to initiate a habeas proceeding in the county
of confinement created jurisdictional problems. We concluded
that by statute, any and all district courts in Nebraska have
subject matter jurisdiction of claims for habeas corpus relief.
The determination of which district court should hear a habeas
petition is essentially a question of venue and not one of juris-
diction. See id.
Anderson v. Houston, supra, was decided more than 5 years
before O’Neal filed his petition for a writ of habeas corpus.
Under our holding in that case, the district court was not
deprived of jurisdiction by the fact that O’Neal was not con-
fined within Douglas County. Therefore, the district court erred
in concluding that it lacked jurisdiction for this reason.
O’Neal’s failure to file his petition in the county of his
confinement may have had implications for venue. See id. But
we need not determine whether venue in Douglas County was
improper, because the State waived any objection it may have
had to venue.
[6-8] Unlike jurisdiction, venue is a personal privilege
which, if not raised by a party, is waived unless prohibited by
law. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d
1 (2011). In particular, “[a] claim of improper venue is a mat-
ter that may be waived by failure to make a timely objection.”
See Krajicek v. Gale, 267 Neb. 623, 628, 677 N.W.2d 488,
492 (2004). For an objection to venue to be timely in a civil
case, it must be raised “before or in the defendant’s answer.”
See State v. Vejvoda, 231 Neb. 668, 673, 438 N.W.2d 461,
466 (1989). Habeas corpus is “a special civil proceeding.”
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O’NEAL v. STATE 949
Cite as 290 Neb. 943
See Peterson v. Houston, 284 Neb. 861, 866, 824 N.W.2d 26,
32 (2012).
[9] In the instant case, the State did not object to venue
in or before its response to the habeas petition. Although the
State alerted the district court that O’Neal had not filed his
habeas petition in the county of his confinement, the State
explicitly framed this argument as an objection to jurisdiction.
Jurisdiction and venue are not synonymous and interchangeable
functions in litigation. Hofferber v. Hastings Utilities, supra.
And the difference between a jurisdictional argument and a
venue argument is “significant.” See Anderson v. Houston, 274
Neb. at 922, 744 N.W.2d at 416. Moreover, in a prior case, we
determined that an objection to jurisdiction did not preserve an
objection to venue. See In re Interest of Adams, 230 Neb. 109,
430 N.W.2d 295 (1988). We therefore reject the State’s argu-
ment that its jurisdictional objection should be viewed as an
objection to venue.
The State did not raise a timely venue objection, and it
therefore waived any objection to venue in the district court for
Douglas County.
(b) Failure to Attach Copy of
Commitment Order
The second jurisdictional question presented by this appeal
is whether the statutory requirement to attach a copy of the rel-
evant commitment order to a habeas petition is jurisdictional—
that is, whether the failure to attach a copy of the commitment
order to a habeas petition prevents a court from exercising
jurisdiction over that petition. Under § 29-2801, when an indi-
vidual makes an application for a writ of habeas corpus “to any
one of the judges of the district court,” he or she must “produce
to such judge a copy of the commitment or cause of detention
of such person.”
The State argues that we previously decided this issue
in Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990). It
alleges that in that case, we held that “the failure to attach a
copy of the commitment is jurisdictional.” See brief for appel-
lee at 6. But we do not agree.
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In Gallion v. Zinn, supra, Donnelle Gallion, an individual
confined at the Lincoln Regional Center, filed a pro se peti-
tion for a writ of habeas corpus but did not provide a copy
of his commitment or detention order. The lower court held
a hearing on the petition and then dismissed it for the reason
that the petition failed to state facts that would entitle Gallion
to habeas relief. On appeal, within a broader discussion of
whether Gallion’s petition showed legal cause for habeas
relief, we considered the effect of his failure to provide a
copy of the commitment order. We concluded (1) that under
§ 29-2801, Gallion was “required to produce for the district
court a copy of the order under which [he] was committed
to and detained in the Lincoln Regional Center” and (2) that
the “absence of the statutorily required copy of the commit-
ment and detention order . . . prevented the district court from
proceeding to the relief sought by Gallion’s habeas corpus
action.” See Gallion v. Zinn, 236 Neb. at 100, 459 N.W.2d at
215. Accordingly, we found that Gallion’s petition was prop-
erly dismissed.
At no point in Gallion v. Zinn, supra, did we discuss or
mention jurisdiction. Moreover, we ultimately affirmed the
dismissal of Gallion’s petition for failure to allege facts which
entitled him to relief. If we had concluded, as the State sug-
gests, that the district court lacked jurisdiction over Gallion’s
petition due to the lack of a commitment order, we would not
have affirmed the lower court’s dismissal, which constituted a
judgment on the petition. Therefore, we reject the State’s argu-
ment that in Gallion v. Zinn, supra, we held that the failure to
attach a copy of the commitment is jurisdictional.
[10] The State cites to no other cases which would lead us
to conclude that the failure to attach a copy of the relevant
commitment order to a petition for a writ of habeas corpus
prevents a court from exercising jurisdiction over that peti-
tion. Indeed, in prior cases where a commitment order was not
provided as part of the habeas petition, we have considered
the merits of the petition and affirmed the lower court’s dis-
missal on nonjurisdictional grounds. See, Rehbein v. Clarke,
257 Neb. 406, 598 N.W.2d 39 (1999); Gallion v. Zinn, supra.
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The Court of Appeals has likewise considered the merits of
a habeas petition which did not include a commitment order.
See Tyler v. Warden, Nebraska State Prison, No. A-02-295,
2003 WL 21398153 (Neb. App. June 17, 2003) (not designated
for permanent publication). Moreover, most states with statu-
tory requirements similar to § 29-2801 do not treat compli-
ance with such requirements as jurisdictional. See, Nguyen v.
State, 282 Ga. 483, 651 S.E.2d 681 (2007), overruled on other
grounds, Brown v. Crawford, 289 Ga. 722, 715 S.E.2d 132
(2011); State ex rel. v. Adult Parole, 80 Ohio St. 3d 639, 687
N.E.2d 761 (1998); People ex rel. Negron v. Herold, 33 A.D.2d
1076, 307 N.Y.S.2d 710 (1970); State ex rel. Hansen v. Utecht,
230 Minn. 579, 40 N.W.2d 441 (1950); State ex rel. Chase v.
Calvird, 324 Mo. 429, 24 S.W.2d 111 (1930); In the Matter
of Beard, 4 Ark. 9 (1842); In re Spates, No. 14-14-00524-CV,
2014 WL 3051311 (Tex. App. July 3, 2014) (unpublished). But
see Evans v. Dist. Ct., 194 Colo. 299, 572 P.2d 811 (1977).
Consequently, we conclude that the failure to attach a copy
of the relevant commitment order to a petition for a writ of
habeas corpus does not prevent a court from exercising juris-
diction over that petition.
O’Neal’s failure to provide a copy of the commitment order
is raised by the State solely within the context of jurisdiction.
The State does not argue that such failure rendered his petition
insufficient or otherwise precluded him from obtaining habeas
relief. Therefore, we do not consider whether there are non-
jurisdictional consequences to failing to attach a copy of the
relevant commitment order to a petition for a writ of habeas
corpus, because such issues are not before us.
2. Denial of Habeas P etition
[11] Because the district court had jurisdiction, it erred inso-
far as it assigned lack of jurisdiction as the reason for denying
O’Neal’s habeas petition. However, “[a] proper result will not
be reversed merely because it was reached for the wrong rea-
son.” See In re Estate of Odenreider, 286 Neb. 480, 490, 837
N.W.2d 756, 765 (2013). We must, therefore, consider whether
the district court properly denied O’Neal’s petition. We con-
clude that it did.
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[12-14] A writ of habeas corpus in this state is quite lim-
ited in comparison to those of federal courts, which allow
a writ of habeas corpus to a prisoner when he or she is in
custody in violation of the federal Constitution, law, or trea-
ties of the United States. Peterson v. Houston, 284 Neb. 861,
824 N.W.2d 26 (2012). Under Nebraska law, an action for
habeas corpus is a collateral attack on a judgment of convic-
tion. Id. Only a void judgment may be collaterally attacked.
Id. “‘If the court has jurisdiction of the person of the accused
and of the crime charged in the information[,] and does not
exceed its lawful authority in passing sentence, its judgment
is not void[,] whatever errors may have preceded the rendi-
tion thereof.’” Hickman v. Fenton, 120 Neb. 66, 70, 231
N.W. 510, 512 (1930). Thus, a writ of habeas corpus will not
lie to discharge a person from a sentence of penal servitude
where the court imposing the sentence had jurisdiction of the
offense and the person of the defendant, and the sentence
was within the power of the court to impose. Peterson v.
Houston, supra.
[15] O’Neal claimed that he was entitled to habeas relief,
because the information on which he was convicted incor-
rectly identified the victim of counts I and II. Although he
attempted to connect this alleged default to the legality of
his imprisonment under the 5th and 14th Amendments, he
did not argue that the information’s alleged error deprived
the trial court of jurisdiction. Neither did he argue that it was
not within the power of the sentencing court to impose the
sentences which he received. Therefore, O’Neal did not raise
an issue which could be addressed in a writ of habeas corpus
proceeding in Nebraska. A writ of habeas corpus is not a writ
for correction of errors, and its use will not be permitted for
that purpose. Peterson v. Houston, supra.
To the extent the district court assigned lack of jurisdiction
as the reason for denying O’Neal’s petition, it erred. But the
court also concluded that if it had jurisdiction, O’Neal was not
entitled to relief. Because the record adequately demonstrates
that the decision of the district court dismissing the petition
was correct, we affirm.
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VI. CONCLUSION
For the foregoing reasons, we affirm the order of the
district court which denied O’Neal’s petition for a writ of
habeas corpus.
Affirmed.
Cassel, J., concurring.
Although I agree that the district court had jurisdiction of
the application for writ of habeas corpus, O’Neal failed to
identify the person or persons who were allegedly illegally
detaining him. In my opinion, the district court should have
summarily denied the application at the outset.
Habeas corpus, under statutes like our own, is a special
proceeding, civil in character, providing a summary remedy
open to persons illegally detained.1 Habeas corpus will not
lie to discharge a person from a sentence of penal servitude
where the court imposing the sentence had jurisdiction of the
offense, had jurisdiction of the person of the defendant, and the
sentence was within the power of the court to impose.2 Such a
judgment is not void. Habeas corpus cannot be used as a sub-
stitute for a writ of error.3 Habeas corpus is a collateral and not
a direct proceeding when regarded as a means of attack upon a
judgment sentencing a defendant.4
The writ must be “directed to the proper officer, person
or persons who detains such prisoner.”5 If the writ is issued,
the “officer or person to whom such writ shall be directed” is
dutybound to “convey the person or persons so imprisoned or
detained and named in such writ, before the judge allowing the
same, . . . and to make due return of the writ.”6
The application failed to name any person to whom the writ
might have been directed. The application must be made to the
1
In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840
(1944).
2
Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
3
Id.
4
Id.
5
Neb. Rev. Stat. § 29-2801 (Reissue 2008).
6
Neb. Rev. Stat. § 29-2802 (Reissue 2008).
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judge “by oath or affirmation.”7 Without the name of any offi-
cer (or perhaps even a “John Doe” designation of some officer
identified by means of the office he or she held), the applica-
tion wholly failed to support issuance of a writ.
But instead of simply denying the writ, the district court,
without any citation to authority under the habeas corpus stat-
utes, directed the State to file a response. At this point, the
court ceased to follow the procedure dictated by the habeas
corpus statutes and basically made up its own procedure. It is
the duty of the court on presentation of a petition for a writ
of habeas corpus to examine it, and if it fails to state a cause
of action, the court must enter an order denying a writ.8 If
the district court had simply followed the statutory procedure
and summarily denied the writ for failure to comply with the
statutes, this appeal would have been very straightforward.
And this court would have had no need to discuss jurisdic-
tion, venue, waiver, and the requirement to attach a copy of
the commitment.
I do not disagree with the majority’s reasoning or conclusion
or the law that it cites. The district court’s irregular procedure
introduced complexity into an otherwise simple process. I
write separately to encourage trial courts not to follow the trail
blazed by the court below, but, rather, to adhere to the simple
statutory procedure.
7
§ 29-2801.
8
See Dixon v. Hann, 160 Neb. 316, 70 N.W.2d 80 (1955).
State of Nebraska, appellant, v.
R enae K. Warner, appellee.
___ N.W.2d ___
Filed May 22, 2015. No. S-14-345.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. ____: ____. Before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.