State v. Edwards

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/16/2018 09:10 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. EDWARDS
Cite as 301 Neb. 579State of Nebraska, appellee, v.
Christopher A. Edwards, appellant.
___ N.W.2d ___
Filed November 16, 2018. No. S-17-1234.
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 dem­
onstrate 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: Evidence. No evidentiary hearing is necessary when a
postconviction motion and the files and records of the case show to the
satisfaction of the court that the prisoner is entitled to no relief.
3. Appeal and Error. An appellate court considers only those arguments
that were both adequately assigned and argued in the appellant’s brief.
4. Postconviction: Pleadings: Time. The Nebraska Postconviction Act
contains a 1-year time limit for filing a verified motion for postconvic-
tion relief, which runs from one of four triggering events or August 27,
2011, whichever is later.
5. Postconviction: Limitations of Actions: Proof. To satisfy the tolling
provision of Neb. Rev. Stat. § 29-3001(4)(c) (Reissue 2016), a prisoner
must show there was (1) an impediment created by state action, (2)
which amounted to a violation of the federal or state Constitution or a
state law, and (3) as a result, the prisoner was prevented from filing a
verified motion. If all these factors are satisfied, the 1-year limitation
period will begin to run on the date the impediment was removed.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Brian Munnelly and Gerald L. Soucie for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
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301 Nebraska R eports
STATE v. EDWARDS
Cite as 301 Neb. 579Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Cassel, J.
INTRODUCTION
After jurisdiction again vested in the district court follow-
ing an appeal from the denial of Christopher A. Edwards’ first
motion for postconviction relief, he filed a second motion
seeking postconviction relief. Prompted by the State, the dis-
trict court denied the second motion without an evidentiary
hearing. Because we agree that Edwards’ second motion is
barred by the limitation period set forth in Neb. Rev. Stat.
§ 29-3001(4) (Reissue 2016), we affirm the decision of the
district court.
BACKGROUND
Crimes, Trial, and Direct A ppeal
In June 2006, the State charged Edwards with second degree
murder and use of a deadly weapon to commit a felony in con-
nection with the disappearance of Jessica O’Grady. Spattered
blood was found on Edwards’ nightstand, headboard, clock
radio, and ceiling above his bed. The underside of Edwards’
mattress contained a large, damp bloodstain. Investigators dis-
covered blood on a short sword in Edwards’ closet, on the
trunk gasket of Edwards’ car, and on the underside of the car’s
trunk lid. DNA profiles from this blood were consistent with
O’Grady’s profile. A jury convicted Edwards of both charges.
Steven J. Lefler and two other attorneys represented Edwards
at trial. Through the same counsel, Edwards appealed. We
affirmed Edwards’ convictions on direct appeal.1 Our mandate
issued in July 2009.
First Motion for Postconviction R elief
In July 2010, through new counsel, Edwards filed a motion
for postconviction relief. He claimed that the State violated
1
State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
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STATE v. EDWARDS
Cite as 301 Neb. 579his due process rights by presenting fabricated evidence. More
specifically, Edwards alleged that David Kofoed, a supervisor
of the Douglas County Crime Scene Investigation Division,
planted blood evidence to be used against Edwards.
Edwards also alleged claims of ineffective assistance of
trial and appellate counsel. One of his claims was that Lefler
should have known that Kofoed was suspected of planting evi-
dence during the murder investigation and that Lefler failed to
investigate this information or to effectively impeach Kofoed
at trial. Edwards claimed that Lefler had a potential conflict of
interest because of his friendship with Kofoed. And Edwards
alleged that his appellate counsel was ineffective in failing to
raise claims of trial counsel’s ineffective assistance.
In October 2010, the State moved to quash Edwards’ sub-
poenas directed to the Douglas County sheriff’s office and the
University of Nebraska Medical Center. The motion stated,
“There has been no indication that [Edwards] alleges that the
State withheld information or evidence that would entitle him
the opportunity to seek out discovery in this matter.” The court
granted the motion.
In December 2010, Edwards moved for leave to file an
amended motion for postconviction relief. The amended motion
contained several additional exhibits, which were documents
from the Douglas County Crime Scene Investigation Division
pertaining to the criminal investigation of Edwards. Although
it is not in our record, the parties agree that this motion
was granted.
On August 2, 2011, the district court overruled Edwards’
first motion for postconviction relief without an evidentiary
hearing. Edwards appealed.
In September 2012, we determined that two of Edwards’
claims required an evidentiary hearing.2 First, we recounted
Kofoed’s unlawful conduct during two other murder investiga-
tions and concluded that an evidentiary hearing was needed
2
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012), disapproved in
part, State v. Avina-Murillo, ante p. 185, 917 N.W.2d 865 (2018).
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STATE v. EDWARDS
Cite as 301 Neb. 579on Edwards’ claim that the State presented fabricated forensic
evidence at trial.
Second, we concluded that an evidentiary hearing was nec-
essary on Edwards’ claim that his trial counsel had a conflict
of interest because of his relationship with Kofoed. We stated:
We cannot know from this record whether before
Edwards’ trial, Kofoed had asked Lefler to represent him
if he was later charged with a crime. Given allegations
of their friendship and Lefler’s undisputed representation
of Kofoed against fabrication charges in 2009, Kofoed’s
possible request of representation is a prospect that the
court should have considered. In addition, we cannot
know from this record whether before Edwards’ trial, law
enforcement officers conducted an internal investigation
of Kofoed’s conduct in which Lefler had already repre-
sented or advised Kofoed. Finally, because of their friend-
ship, Lefler may have learned of the allegations against
Kofoed even without agreeing to represent him.3
We determined that an evidentiary hearing was necessary
to discover whether Lefler knew of the allegations against
Kofoed before Edwards’ trial or whether a conflict of interest
prevented him from cross-examining Kofoed about any pend-
ing investigation. We thus remanded the cause to the district
court for an evidentiary hearing.
Proceedings Following R emand
on First Motion
On May 3, 2013, after the remand but prior to the eviden-
tiary hearing, Edwards filed a motion for leave to file a sec-
ond amended motion for postconviction relief. The proposed
amended motion set forth five claims: (1) Edwards’ due proc­
ess rights were violated because his convictions were based
on fabricated evidence, (2) his due process rights were vio-
lated because the State failed to disclose material exculpatory
3
Id. at 408, 821 N.W.2d at 702.
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STATE v. EDWARDS
Cite as 301 Neb. 579evidence, (3) his attorney failed to provide conflict-free repre-
sentation, (4) the step instruction on the lesser-included offense
of manslaughter failed to distinguish between the intent to kill
associated with second degree murder and the intent to kill
resulting from a “sudden quarrel,” and (5) cumulative error
deprived him of his right to substantive due process under the
14th Amendment. In June, Edwards filed a supplemental show-
ing regarding this motion.
The district court overruled Edwards’ motion for leave to
file an amended motion and the supplemental showing to the
extent that they sought to expand the scope of our mandate.
The court stated that our mandate specifically set out the scope
of the remand and that the court was limited to those issues.
In March and April 2014, the district court conducted an
evidentiary hearing on the two issues from the first motion
for postconviction relief. The court heard evidence regard-
ing whether the State knowingly used fabricated evidence
and whether Lefler operated under a conflict of interest. With
regard to the examination of Lefler, the court stated that the
relevant timeframe was what Lefler knew from the time of
voir dire to the conclusion of Edwards’ trial. But the court
also stated that it would “allow some leeway here to make
a record.” Ultimately, the court rejected Edwards’ claims for
postconviction relief.
On appeal, Edwards assigned that the district court erred in
refusing to grant leave to amend his original postconviction
motion, failing to find that his counsel had an actual conflict
of interest, and failing to find that the State knowingly used
fabricated evidence.
In a July 1, 2016, opinion, we rejected Edwards’ claims.4
We determined that Edwards’ assignment of error concerning
the denial of his motion to amend his original postconviction
motion lacked merit. We reasoned:
4
State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016).
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STATE v. EDWARDS
Cite as 301 Neb. 579At the time of filing his motion to amend the postconvic-
tion proceeding, assuming without deciding that Edwards
was not procedurally or time barred, Edwards could
have filed a second postconviction proceeding alleging
the claims he attempted to raise on remand. We have
held that a subsequent postconviction motion is allowed
when the motion affirmatively shows on its face that
the basis relied upon for relief was not available at the
time of the filing of the prior motion. Edwards asserts
that such is the case here. Accordingly, we conclude
that Edwards could have filed a second postconviction
proceeding asserting the claims that he alleged he was
unable to raise in the first postconviction proceeding.
Therefore, the district court did not deprive Edwards
of a substantial right or just result and did not abuse its
discretion by denying his motion to amend his first post-
conviction claim.5
Next, we found that Edwards failed to prove by a prepon-
derance of the evidence that his trial counsel operated under
a conflict of interest. We stated, “The record simply does not
support a finding that Lefler had such a loyalty to Kofoed
that would have tempted him at trial to act against Edwards’
interests.”6 We further determined that “[e]ven assuming that
Lefler had any loyalty to Kofoed, Edwards fails to point to any
situation during or prior to his trial in which Lefler acted in
Kofoed’s interest and against Edwards’ interest.”7
Finally, we rejected Edwards’ claim that the State know-
ingly used fabricated evidence. We determined that the district
court did not commit clear error in finding that Kofoed did not
fabricate evidence in Edwards’ case or in finding that Edwards
failed to prove the State knowingly used fabricated evidence.
Our mandate issued on October 3, 2016.
5
Id. at 21, 880 N.W.2d at 654-55 (emphasis supplied).
6
Id. at 22, 880 N.W.2d at 655.
7
Id. at 23, 880 N.W.2d at 655.
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STATE v. EDWARDS
Cite as 301 Neb. 579Second Motion for
Postconviction R elief
On October 7, 2016, Edwards filed a second verified motion
for postconviction relief. He alleged that he was prevented
from raising the issues in his second motion for postconviction
relief for reasons set forth in § 29-3001(4).
Edwards claimed that he was affirmatively denied the ability
to obtain facts. He pointed to an order denying traditional dis-
covery, the misrepresentation of facts by the Douglas County
Attorney’s office in its motion to quash, and the withholding of
facts by agents of the State and by Lefler.
Edwards alleged that in late December 2012, attorney Jerry
Soucie was retained as cocounsel to represent him. Soucie,
due to his representation of individuals charged in connection
with the murders of Wayne and Sharmon Stock and Brendan
Gonzalez, had personal knowledge of facts that were unavail-
able to Edwards or his postconviction attorney through rea-
sonable investigative efforts. Additional discovery relevant to
Lefler’s conflict of interest and the State’s failure to disclose
exculpatory information became available in connection with
federal civil rights lawsuits filed in 2007 and 2008 by individ­
uals wrongfully accused of the Stocks’ murders.
A Douglas County sheriff’s office internal affairs investi-
gation report from June and July 2008 became available due
to discovery in the civil rights suits. The report previously
had been confidential and the subject of a federal protection
order. The report enabled Edwards to learn of Lefler’s direct
involvement in the defense of Kofoed during the internal
affairs investigation in May and June 2008—a period when
Lefler was representing Edwards on direct appeal, before the
reply brief was filed and before the case was argued and sub-
mitted. According to Edwards, the report showed that Kofoed
admitted to the Douglas County sheriff’s office and to Lefler
that Kofoed had falsified a report regarding the collection of
a blood sample from a vehicle related to the Stock murders,
that Kofoed instructed a subordinate not to include Kofoed’s
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STATE v. EDWARDS
Cite as 301 Neb. 579presence when photographs were taken of that vehicle, that
Douglas County sheriff’s office personnel told Kofoed not to
file an amended report because it would look like a coverup,
and that Lefler knew the Federal Bureau of Investigation told
Kofoed that his story regarding how blood was found in the
vehicle of an innocent man did not “‘pass the smell test.’”
Edwards alleged that on May 14, 2013, Soucie was able to
obtain a complete set of the crime scene investigation reports
related to the Stock murder investigation. Also, he alleged
that only then did he learn that a former Nebraska State Patrol
investigator was suspicious of Kofoed’s conduct in the Stock
and Gonzalez cases and also wondered about the blood suppos-
edly found on the sword in the O’Grady case.
Edwards’ second motion for postconviction relief set forth
three grounds for relief. The first ground alleged a viola-
tion of due process based on the failure to disclose materi-
ally exculpatory impeachment evidence to Edwards related
to Kofoed’s “propensity to fabricate evidence and falsify
reports.” Edwards alleged that law enforcement officials
involved in Edwards’ prosecution team were aware of infor-
mation that Kofoed falsified reports. Specifically, he alleged
that the Douglas County Attorney, the Douglas County sher-
iff, and a crime scene investigator were aware of circumstan-
tial evidence that Kofoed had fabricated evidence in the Stock
murder investigation and that such evidence was exculpatory
impeachment evidence with respect to Kofoed’s involvement
in the collection of the forensic evidence in Edwards’ pros-
ecution. Edwards claimed that the failure of the State and its
agents to disclose such information to Edwards violated due
process and the decisions in Brady v. Maryland 8 and Kyles
v. Whitley.9
Edwards alleged that Lefler’s examination and cross-­
examination of all Douglas County sheriff’s office crime scene
8
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
9
Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
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STATE v. EDWARDS
Cite as 301 Neb. 579investigation personnel at trial was significantly restricted if
he did not have the details regarding how Kofoed fabricated
evidence in the Stock and Gonzalez investigations. Edwards
asserted that because agents for the State withheld Kofoed’s
misconduct, Lefler focused his closing argument on the lack of
a body and did not mention possible contamination of the evi-
dence discussed by Kofoed. On the other hand, the State relied
specifically on the validity and reliability of the DNA evidence
showing O’Grady’s DNA on various items.
The second ground raised in the motion was that Lefler had
an actual conflict of interest in his representation of Edwards
on appeal. Edwards alleged that between May 2008 and July
28, 2009, Lefler concurrently represented Edwards and Kofoed.
According to Edwards, Lefler represented him from June 2006
until July 28, 2009. Edwards claimed that Lefler acted under
an actual conflict of interest because he could not use the
information he obtained during his representation of Kofoed
regarding Kofoed’s propensity to falsify reports and fabricate
evidence. Further, Edwards alleged that if he received a new
trial, Lefler’s representation of Kofoed would be problematic,
thus presenting a significant financial reason for Lefler to not
want Edwards’ convictions reversed.
Edwards claimed that Lefler failed to take a number of actions
due to his conflict of interest. He alleged that Lefler failed to
file a timely motion for new trial based on newly discovered
evidence when Lefler became aware of the facts regarding the
Stock murder investigation. Edwards claimed that Lefler should
have assigned error in a replacement or supplemental brief that
the State failed to comply with Brady by disclosing the “‘cross-
contamination’” theory of Kofoed in the Stock investigation or
the “‘evidence planting’” theory of other attorneys in the crimi-
nal prosecutions. He alleged that Lefler should have requested
leave to withdraw the previous brief after criminal charges were
filed against Kofoed in April 2009, requested a remand to inves-
tigate the allegations from the Stock investigation as they related
to Edwards’ prosecution, or filed a supplemental brief asserting
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STATE v. EDWARDS
Cite as 301 Neb. 579errors based on the factual allegations in the criminal prosecu-
tions against Kofoed.
Edwards took issue with a number of Lefler’s actions
while Lefler represented Edwards on direct appeal. During
that time, Lefler became aware of the Federal Bureau of
Investigation’s allegations against Kofoed, accepted a retainer
from Kofoed, represented Kofoed in the internal affairs inves-
tigation, appeared as Kofoed’s private attorney in the civil
rights cases, accompanied Kofoed to a federal grand jury,
and defended Kofoed against criminal charges. According to
Edwards, Lefler did not disclose information that he learned
during his representation of Kofoed, such as Kofoed’s admis-
sion of falsification of reports, a coverup by the sheriff’s office
in not amending one of Kofoed’s reports, and the falsifica-
tion of evidence by Kofoed during the Stock and Gonzalez
investigations.
The third ground raised by Edwards concerned the step
instruction on the lesser-included offense of manslaughter.
Edwards alleged that the instruction given failed to distin-
guish between the intent to kill associated with second degree
murder and intent to kill resulting from a “sudden quarrel.”
According to Edwards, the court’s instruction failed to prop-
erly advise the jury through a negative element instruction that
any intent to kill associated with second degree murder could
not be the result of a sudden quarrel. Edwards asserted that
he could not have earlier raised this issue, because it was not
until after the appeal of the denial of an evidentiary hearing on
August 25, 2011, that this court decided the cases relevant to
his claim.10
The State moved to dismiss Edwards’ motion for postcon-
viction relief. The State alleged that the motion should be
denied because it was filed outside of the time limits contained
10
See, State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013); State v. Smith,
284 Neb. 636, 822 N.W.2d 401 (2012); State v. Smith, 282 Neb. 720, 806
N.W.2d 383 (2011).
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STATE v. EDWARDS
Cite as 301 Neb. 579in § 29-3001(4) and that it should be denied as a succes-
sive motion.
The district court denied Edwards’ request for an eviden-
tiary hearing and sustained the State’s motion to dismiss. The
court focused on when the facts alleged in the motion could
have been discovered, not when Edwards realized they were
significant. The court noted that the proposed amended motion,
which Edwards sought to file in May 2013, raised the same
issues as those set forth in the second motion for postconvic-
tion relief. Thus, the court stated that “these issues clearly were
discoverable and in fact, were discovered, years before the fil-
ing of the 2nd Motion.”
The court also stated that the operative motion was a suc-
cessive attempt at postconviction relief. It determined that the
issues asserted in the second motion were known or knowable
at the time the first motion was filed.
Finally, the court rejected the jury instruction issue. It stated
that because State v. Smith,11 a 2011 decision, was released
after Edwards’ direct appeal was affirmed, the court did not
err by providing jury instructions that complied with the law at
the time of Edwards’ trial. The court determined that Edwards
was not entitled to retroactive application of the rule in Smith,
because Edwards’ direct appeal was not still pending when
Smith was decided.
Edwards filed a timely appeal.
ASSIGNMENT OF ERROR
Edwards assigns that the district court erred in denying
an evidentiary hearing on his second motion for postconvic-
tion relief.
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
11
State v. Smith, supra note 10, 282 Neb. 720, 806 N.W.2d 383 (2011).
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STATE v. EDWARDS
Cite as 301 Neb. 579failed to allege sufficient facts to dem­onstrate a violation of his
or her constitutional rights or that the record and files affirm­
atively show that the defendant is entitled to no relief.12
ANALYSIS
[2,3] Before considering whether the claims raised in
Edwards’ second motion for postconviction relief are barred,
we recall governing principles in two areas. First, an evi-
dentiary hearing must be granted when the facts alleged, if
proved, would justify relief, or when a factual dispute arises
as to whether a constitutional right is being denied.13 But no
evidentiary hearing is necessary when “the motion and the files
and records of the case show to the satisfaction of the court
that the prisoner is entitled to no relief.”14 Second, we consider
only those arguments that were both adequately assigned and
argued in the appellant’s brief.15 Because the argument sec-
tion of Edwards’ appellate brief addresses only his ineffective
assistance of counsel/conflict of interest claim, we limit our
analysis accordingly.
[4] The Nebraska Postconviction Act contains a 1-year time
limit for filing a verified motion for postconviction relief,
which runs from one of four triggering events or August 27,
2011, whichever is later.16 Edwards refers to “§ 29-3001(4)”
a number of times throughout his brief. However, it is unclear
which, if any, subsection he believes extended the date to file
his motion. Edwards had until August 27, 2012, to file his
motion for postconviction relief, unless one of the triggering
events extended the date beyond August 27, 2012.
Section 29-3001(4) sets forth four triggering events.
They are:
12
State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
13
State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018).
14
§ 29-3001(2).
15
See State v. Haynes, supra note 13.
16
State v. Lotter, ante p. 125, 917 N.W.2d 850 (2018).
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Cite as 301 Neb. 579(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 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 retroac-
tively to cases on postconviction collateral review[.]
Despite Edwards’ failure to argue a particular triggering event
that he believes makes his October 2016 motion timely, we
consider each possibility.
Two of the triggering events clearly do not assist Edwards.
His convictions became final in 2009, so § 29-3001(4)(a)
does not extend the period beyond August 27, 2012. And
§ 29-3001(4)(d) has no application, because Edwards does not
assert a newly recognized right in connection with his ineffec-
tive assistance of counsel claim.
Under § 29-3001(4)(b), Edwards 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. He could have discovered that Lefler
concurrently represented Kofoed when discovery in one of the
federal civil rights suits became publicly available on August
30, 2010. Edwards does not contend that he or his counsel
were unaware of those cases. They were based on allegations
that Kofoed falsified evidence. Similarly, a focus of Edwards’
first motion for postconviction relief—initially filed in July
2010—was the investigation and conviction of Kofoed for
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Cite as 301 Neb. 579fabricating evidence and falsifying official reports. It is reason-
able to think that Edwards’ postconviction counsel would be
keenly interested in the federal civil rights suits. Thus, once
the discovery became publicly available in August 2010, “the
factual predicate of the constitutional claim . . . could have
been discovered through the exercise of due diligence.”17 We
conclude that § 29-3001(4)(b) does not extend the time for fil-
ing beyond August 27, 2012.
[5] To satisfy the tolling provision of § 29-3001(4)(c), a
prisoner must show there was (1) an impediment created by
state action, (2) which amounted to a violation of the federal or
state Constitution or a state law, and (3) as a result, the prisoner
was prevented from filing a verified motion. If all these factors
are satisfied, the 1-year limitation period will begin to run on
the date the impediment was removed.18
Edwards’ argument fails at the first step. In State v. Amaya,19
we stated that the prisoner had not shown how the alleged
ineffective assistance of his postconviction counsel was “‘cre-
ated by state action.’” Similarly, Edwards has not shown how
Lefler’s conflict of interest was “created by state action.” We
recognize that in July 2009, Douglas County retained Lefler
to represent Kofoed in the federal civil rights suits. But prior
to that time—in June 2008—Kofoed hired Lefler to represent
him in connection with the internal affairs investigation. Thus,
the conflict of interest present in June 2008 was not created by
state action. Because Edwards cannot meet all of the factors,
the tolling provision of § 29-3001(4)(c) does not apply.
To the extent that Edwards alleges facts purporting to show
that state action prevented him from learning about Lefler’s
conflict of interest, his own motion shows that he obtained
such information in May 2013. Any impediment was removed
at that time. Still, Edwards did not file his motion until 2016.
17
§ 29-3001(4)(b).
18
State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
19
Id. at 79, 902 N.W.2d at 682.
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Cite as 301 Neb. 579Edwards attempted to avoid this result in two ways. Both
have no merit.
Before the district court, Edwards argued that the period
under § 29-3001(4) should be tolled while the appeal concern-
ing his first motion was pending. We recognize that the scope
of our mandate precluded the district court from enlarging the
issues presented on his first motion. The district court prop-
erly refrained from acting outside the scope of our remand;
thus, refusal to allow the amendment was not “in violation
of the Constitution of the United States or the Constitution of
Nebraska or any law of this state.”20
In arguing Edwards’ second motion for postconviction
relief, he asserted that “the clerk of the district court will
refuse to accept anything, in terms of a second post-­conviction
motion or anything of that nature, until the mandate and juris-
diction’s been returned to the court.” But nowhere in his sec-
ond motion did he allege that he actually tried to file a second
motion—as opposed to his attempt to file a second amend-
ment to his first motion—and was prevented from doing so.
Once again, this allegation was not sufficient to plead that he
was prevented from filing his motion due to a state-created
impediment.
Edwards waited until October 2016 to file his second motion
for postconviction relief. The motion is barred by the time
limitation of § 29-3001(4).
CONCLUSION
We agree with the district court that Edwards’ second motion
for postconviction relief is barred by the limitation period set
forth in § 29-3001(4). Accordingly, we affirm the court’s
decision.
A ffirmed.
Freudenberg, J., not participating.
20
See § 29-3001(4)(c).