State v. Harrison

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/24/2016 09:09 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. HARRISON
Cite as 293 Neb. 1000State of Nebraska, appellee, v.
David K. H arrison, appellant.
___ N.W.2d ___
Filed June 24, 2016. No. S-15-1085.
1. Postconviction: Constitutional Law: Proof. An evidentiary hearing
on a motion for postconviction relief must be granted when the motion
contains factual allegations which, if proved, constitute an infringe-
ment of the movant’s rights under the Nebraska or federal Constitution.
However, if the motion alleges only conclusions of fact or law, or the
records and files in the case affirmatively show that the movant is
entitled to no relief, no evidentiary hearing is required.
2. Judgments: Appeal and Error. 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.
3. Judgments: Evidence: Appeal and Error. The purpose of the writ of
error coram nobis is to bring before the court rendering judgment mat-
ters of fact which, if know at the time the judgment was rendered, would
have prevented its rendition.
4. ____: ____: ____. A writ of error coram nobis 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.
5. Judgments: Appeal and Error. A writ of error coram nobis is not
available to correct errors of law.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
David K. Harrison, pro se.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. HARRISON
Cite as 293 Neb. 1000Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Cassel, J.
INTRODUCTION
David K. Harrison appeals from the district court’s order
overruling his second motion for postconviction relief and
denying his request for a writ of error coram nobis. We con-
clude that Harrison’s motion was not timely filed. We also
conclude that his request for a writ of error coram nobis was
properly denied, because he asserts only errors of law. We
therefore affirm the district court’s order.
BACKGROUND
In 1985, Harrison was convicted of first degree murder and
sentenced to life imprisonment. On direct appeal, we affirmed
his conviction and sentence.1 In 1999, he filed a motion for
postconviction relief, alleging that his constitutional rights
were violated for various reasons. After an evidentiary hearing,
the district court overruled Harrison’s motion. We affirmed.2
On April 27, 2015, Harrison filed a second postconviction
motion “TO VACATE AND SET ASIDE CONVICTION AND
SENTENCE AND/OR WRIT OF ERROR CORAM NOBIS,”
which is the subject of this appeal. He alleged three grounds
for relief: (1) judicial misconduct, (2) the record lacks a com-
mitment order, and (3) the jury instructions were erroneous
pursuant to State v. Smith3 and State v. Trice.4
The district court denied Harrison’s request for a writ of
error coram nobis and overruled his motion for postconvic-
tion relief without an evidentiary hearing. It concluded that
his motion for postconviction relief was procedurally barred
as successive and that it was barred as untimely under Neb.
1
State v. Harrison, 221 Neb. 521, 378 N.W.2d 199 (1985).
2
State v. Harrison, 264 Neb. 727, 651 N.W.2d 571 (2002).
3
State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
4
State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013).
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293 Nebraska R eports
STATE v. HARRISON
Cite as 293 Neb. 1000Rev. Stat. § 29-3001(4) (Cum. Supp. 2014). It did not sepa-
rately discuss his request for a writ of error coram nobis.
Harrison appeals.
ASSIGNMENTS OF ERROR
Harrison assigns, restated and consolidated, that the dis-
trict court erred in (1) overruling his motion for postconvic-
tion relief without an evidentiary hearing and (2) denying his
request for a writ of error coram nobis.
STANDARD OF REVIEW
[1] An evidentiary hearing on a motion for postconvic-
tion relief must be granted when the motion contains factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution.5
However, if the motion alleges only conclusions of fact or
law, or the records and files in the case affirmatively show
that the movant is entitled to no relief, no evidentiary hearing
is required.6
[2] 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.7
ANALYSIS
Postconviction Motion
Harrison claims that the district court erred in overruling
his motion for postconviction relief for several reasons. First,
he argues that the record shows judicial misconduct at his
trial that violated his constitutional rights. Second, he argues
that the record lacks a commitment order and that its absence
violates his 5th and 14th Amendment rights. And third, he
argues that he is entitled to relief pursuant to Smith and Trice,
which he claims announced a new criminal rule applicable to
5
State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
6
Id.7
State v. Diaz, 283 Neb. 414, 808 N.W.2d 891 (2012).
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STATE v. HARRISON
Cite as 293 Neb. 1000his case. He also argues that the foregoing errors demonstrate
plain error.
Before we can address Harrison’s arguments, we must first
determine whether the district court correctly concluded that
his motion was untimely. 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.8 Briefly sum-
marized, the triggering events are: (a) The date the judgment
of conviction became final, (b) the date the factual predicate
of the constitutional claim alleged could have been discovered
through due diligence, (c) the date an impediment created
by state action was removed, or (d) “[t]he date on which a
constitutional claim asserted was initially recognized by the
Supreme Court of the United States or the Nebraska Supreme
Court . . . .”9
Clearly, the first three triggering events do not apply.
Subsection (a) does not apply, because Harrison’s conviction
became final in 1985. Subsection (b) does not apply, because
the factual predicates for Harrison’s constitutional claims are
found in the trial record. And subsection (c) does not apply,
because Harrison does not allege that the State created an
impediment that prevented him from filing his postconvic-
tion motion.
And the fourth triggering event does not apply, although
it requires a little more discussion. Under subsection (d), the
1-year period can run from “[t]he date on which a constitutional
claim asserted was initially recognized . . . .”10 Harrison’s first
two arguments regarding judicial misconduct and the commit-
ment order do not invoke subsection (d), because any con-
stitutional claim they attempt to raise was recognized before
August 27, 2011. And Harrison’s third ­ argument regarding
8
§ 29-3001(4).
9
Id.
10
§ 29-3001(4)(d).
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STATE v. HARRISON
Cite as 293 Neb. 1000Smith and Trice does not invoke subsection (d). He argues
that Smith recognized a new criminal rule that is applicable
to his case pursuant to Trice, where we applied Smith on
direct review.
Although Smith announced a new rule,11 it did not recog-
nize a new constitutional claim. In Smith, we held that a step
instruction which required the jury to convict the defendant of
second degree murder if it found an intentional killing, but did
not permit the jury to first consider whether the killing was
provoked by a sudden quarrel, was an incorrect statement of
the law. This conclusion was based upon our interpretation of
the statute that defines manslaughter,12 not on any newly rec-
ognized constitutional right. Later, in an unrelated case with
the same caption, we applied Smith on direct review but clari-
fied that Smith “did not announce a new constitutional rule.”13
Because Smith did not recognize a new constitutional claim or
rule, it is not a triggering event under subsection (d). It follows
that the cases applying Smith are not triggering events.
Moreover, even if Smith or Trice had recognized a new con-
stitutional claim, Harrison’s motion would still be untimely.
The 1-year period runs from the date on which the constitu-
tional claim was initially recognized.14 It does not run from
the release of subsequent cases applying the new constitutional
claim retroactively.15 Smith was released in 2011, and Trice
was released in 2013. Harrison filed the instant motion in
April 2015, well after the 1-year period of limitation would
have expired if either case had recognized a new constitu-
tional claim.
Because none of Harrison’s arguments invoked any trigger-
ing event under § 29-3001(4), the 1-year period began to run
11
See State v. Trice, supra note 4.
12
Neb. Rev. Stat. § 28-305 (Reissue 2008).
13
State v. Smith, 284 Neb. 636, 655, 822 N.W.2d 401, 416 (2012).
14
See State v. Goynes, ante p. 288, 876 N.W.2d 912 (2016).
15
Id.- 1005 -
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293 Nebraska R eports
STATE v. HARRISON
Cite as 293 Neb. 1000on August 27, 2011. It follows that the instant motion, filed on
April 27, 2015, was time barred.
Writ of Error Coram Nobis
Harrison combined his motion for postconviction relief with
a request for a writ of error coram nobis. He claims that the
district court erred in denying the request. We disagree.
[3-5] 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.16 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.17 The writ is not available to correct errors
of law.18
Harrison does not allege any errors appropriate for coram
nobis relief. He alleges errors related to the jury instructions,
judicial misconduct, and the commitment order. These are all
purported errors of law, and a writ of error coram nobis is not
available to correct errors of law.19 Thus, the district court did
not err in denying Harrison’s request.
CONCLUSION
The district court did not err in overruling Harrison’s motion
for postconviction relief, because it was not timely filed. And
the district court did not err in denying Harrison’s request for a
writ of error coram nobis, because he asserts only errors of law.
Accordingly, we affirm the district court’s order.
A ffirmed.
16
State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015).
17
Id.18
Id.19
See, State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014) (misconduct
at trial); State v. Diaz, supra note 7 (ineffective assistance of trial counsel).