State v. Shannon

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/08/2016 09:05 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. SHANNON
Cite as 293 Neb. 303State of Nebraska, appellee, v.
Scott Shannon, appellant.
___ N.W.2d ___
Filed April 8, 2016. No. S-15-582.
1. Limitations of Actions. 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.
2. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
for statutory interpretation or presents questions of law, an appellate
court must reach its conclusion independent of the trial court.
3. Constitutional Law: Prisoners: Courts. Prisoners have a constitutional
right to adequate, effective, and meaningful access to the courts.
4. Public Officers and Employees: Prisoners. Prison authorities must
assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.
5. Public Officers and Employees: Prisoners: Courts: Proof. To prove
a violation of the right to access the court, an inmate must show
the alleged shortcomings in the prison library have hindered, or
are currently hindering, his or her efforts to pursue a nonfrivolous
legal claim.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Nancy K. Peterson for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Stacy,
and K elch, JJ.
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. SHANNON
Cite as 293 Neb. 303Stacy, J.
Scott Shannon appeals from an order dismissing his verified
motion for postconviction relief as untimely. We affirm.
FACTS
In 2010, Shannon was convicted of two counts of attempted
robbery. He was sentenced to concurrent terms of 15 to 25
years in prison. On July 28, 2011, in case No. A-10-1050,
the convictions and sentences were affirmed by the Nebraska
Court of Appeals. The Court of Appeals issued its mandate in
Shannon’s direct appeal on September 20, 2011.
On October 19, 2012, Shannon filed a petition for postcon-
viction relief along with a motion for leave to file the petition
out of time. In his motion asking to file out of time, Shannon
alleged he was unable to file his petition for postconviction
relief within the 1-year limitation period set forth in Neb. Rev.
Stat. § 29-3001 (Cum. Supp. 2014) because the prison where
he was being housed was locked down for a period of time.
Specifically, Shannon alleged that on August 2, 2012, the
prison “was put on a modified lockdown status, at which time
all access to the Institutional Law Library ceased completely.”
At a hearing on the motion to file out of time, Shannon
informed the court he was not allowed access to the prison
law library from August 2 to September 9, 2012. The district
court ultimately dismissed Shannon’s petition as untimely,
finding the lockdown did not prevent Shannon from filing
his postconviction action within the statutory 1-year period.
Shannon timely filed this appeal.
ASSIGNMENT OF ERROR
Shannon assigns it was error for the district court to dismiss
his petition for postconviction relief as untimely.
STANDARD OF REVIEW
[1,2] If the facts in a case are undisputed, the issue as to
when the statute of limitations begins to run is a question of
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. SHANNON
Cite as 293 Neb. 303law.1 To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach its
conclusion independent of the trial court.2
ANALYSIS
Shannon concedes that his motion for postconviction relief
is subject to the statute of limitations set forth in § 29-3001(4):
A one-year period of limitation shall apply to the filing of
a verified motion for postconviction 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;
....
(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; [or]
....
(e) August 27, 2011.
There is no dispute that Shannon’s judgment of conviction
became final on September 20, 2011, when the Court of
Appeals issued the mandate on his direct appeal.3 He con-
tends, however, that the prison lockdown was an “impediment
created by state action” which “prevented [him] from filing
a verified motion” within the meaning of § 29-3001(4)(c),
such that the 1-year statute of limitations did not begin to run
1
State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015); Dutton-Lainson
Co. v. Continental Ins. Co., 271 Neb. 810, 716 N.W.2d 87 (2006).
2
Huggins, supra note 1; Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122(2014).
3
See Huggins, supra note 1 (issuance of mandate by appellate court is date
judgment of conviction becomes final for purposes of § 29-3001(4)).
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. SHANNON
Cite as 293 Neb. 303until he gained access to the law library again on September
9, 2012.
In State v. Huggins,4 an inmate alleged the fact he was in
federal custody and lacked access to a Nebraska law library
was an impediment under § 29-3001(4)(c) which prevented him
from filing a postconviction motion. We rejected his argument,
finding in part that he failed to claim his federal imprisonment
was in violation of either the state or the federal Constitution.
Here, Shannon argues the restriction on his access to the law
library violated his constitutionally protected due process right
of access to the courts.
[3-5] It is undisputed that prisoners have a constitutional
right to “adequate, effective, and meaningful” access to
the courts.5 This right requires prison authorities “to assist
inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries
or adequate assist­ ance from persons trained in the law.”6
To prove a violation of this right, an inmate must show the
alleged shortcomings in the prison library have hindered, or
are currently hindering, his or her efforts to pursue a non­
frivolous legal claim.7
Here, Shannon contends the prison’s restriction on his
access to the law library violated his constitutional right to
access the courts. But we need not decide whether Shannon’s
right of access to the courts was violated by the prison lock-
down. The plain language of § 29-3001(4)(c) requires both
the existence of an impediment created by state action and a
showing that the impediment prevented the inmate from filing
the verified motion. It is clear from the record that the second
4
Id.
5
Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed. 2d 72(1977); Jones v. Jones, 284 Neb. 361, 821 N.W.2d 211 (2012).
6
Bounds, supra note 5, 430 U.S. at 828.
7
Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. SHANNON
Cite as 293 Neb. 303requirement has not been met, because the lockdown did not
prevent Shannon from filing his postconviction motion.
As noted, the mandate was issued on September 20, 2011.
There is no allegation that Shannon lacked access to the law
library before the prison lockdown began on August 2, 2012,
and Shannon concedes that by September 9, he once again
had access to the law library. On these facts, Shannon’s access
to the law library was restricted for only 5 weeks out of the
1-year period he had for filing his postconviction motion. We
conclude that any impediment created by the lockdown did not,
as a matter of law, prevent Shannon from filing his postcon-
viction action. We therefore agree with the district court that
the impediment exception of § 29-3001(4)(c) does not apply.
Shannon’s postconviction action was filed outside the 1-year
statute of limitations, and we affirm its dismissal.
A ffirmed.
Cassel, J., not participating.