State v. Crawford ( 2015 )


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  •                                     - 362 -
    Nebraska A dvance Sheets
    291 Nebraska R eports
    STATE v. CRAWFORD
    Cite as 
    291 Neb. 362
    State of Nebraska, appellee, v.
    Jamey M. Crawford, appellant.
    ___ N.W.2d ___
    Filed July 17, 2015.    No. S-14-338.
    1.	 Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
    which does not involve a factual dispute is determined by an appellate
    court as a matter of law, which requires the appellate court to reach a
    conclusion independent from the lower court’s decision.
    2.	 Postconviction: Proof: Appeal and Error. A defendant requesting
    postconviction relief must establish the basis for such relief, and the
    findings of the district court will not be disturbed unless they are
    clearly erroneous.
    3.	 Limitations of Actions: Pleadings: Waiver. A statute of limitations
    does not operate by its own force as a bar, but, rather, operates as
    a defense to be pled by the party relying upon it and is waived if
    not pled.
    4.	 Limitations of Actions. A typical statute of limitations specifies only
    that an action must be commenced within a specified time period.
    5.	 Postconviction: Limitations of Actions: Jurisdiction. The 1-year
    period of limitation set forth in Neb. Rev. Stat. § 29-3001(4) (Cum.
    Supp. 2014) is not a jurisdictional requirement and instead is in the
    nature of a statute of limitations.
    6.	 Postconviction: Constitutional Law: Proof. In a motion for postcon-
    viction relief, the defendant must allege facts which, if proved, consti-
    tute a denial or violation of his or her rights under the U.S. or Nebraska
    Constitution, causing the judgment against the defendant to be void
    or voidable.
    7.	 ____: ____: ____. A court must grant an evidentiary hearing to resolve
    the claims in a postconviction motion when the motion contains fac-
    tual allegations which, if proved, constitute an infringement of the
    defend­ant’s rights under the Nebraska or federal Constitution.
    8.	 Postconviction: Appeal and Error. If a postconviction motion alleges
    only conclusions of fact or law, or if the records and files in the case
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    STATE v. CRAWFORD
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    291 Neb. 362
    affirmatively show that the defendant is entitled to no relief, the court
    is not required to grant an evidentiary hearing.
    9.	 Constitutional Law: Effectiveness of Counsel. A proper ineffective
    assistance of counsel claim alleges a violation of the fundamental con-
    stitutional right to a fair trial.
    10.	 Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
    claim of ineffective assistance of counsel under Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), the defendant
    must show that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defendant’s defense. A
    court may address the two prongs of this test, deficient performance and
    prejudice, in either order.
    11.	 Effectiveness of Counsel: Pleas: Proof. To show prejudice when the
    alleged ineffective assistance relates to the entry of a plea, the defendant
    must show that there is a reasonable probability that, but for counsel’s
    errors, he or she would not have entered the plea and would have
    insisted on going to trial.
    12.	 Constitutional Law: Right to Counsel: Effectiveness of Counsel:
    Time: Appeal and Error. A defendant does not have a constitutional
    right to counsel beyond the conclusion of his or her direct appeal,
    and therefore, he or she cannot be deprived of effective assistance of
    counsel based on the failure of counsel to timely file a petition for fur-
    ther review.
    Appeal from the District Court for Dodge County: Geoffrey
    C. H all, Judge. Affirmed.
    Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth,
    P.C., for appellant.
    Jon Bruning, Attorney General, and Stacy M. Foust for
    appellee.
    Heavican, C.J., Wright, Connolly, Stephan, McCormack,
    and Miller-Lerman, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Jamey M. Crawford appeals the order of the district court
    for Dodge County which denied his motion for postconviction
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    291 Nebraska R eports
    STATE v. CRAWFORD
    Cite as 
    291 Neb. 362
    relief on the merits after an evidentiary hearing. As an initial
    matter, the State argues on appeal that although the issue was
    not raised in the district court, Crawford’s motion should
    have been dismissed as untimely pursuant to the 1-year
    period of limitation set forth in Neb. Rev. Stat. § 29-3001(4)
    (Cum. Supp. 2014) of the postconviction act. We conclude
    that the 1-year period of limitation is an affirmative defense
    and that the State waived the defense when it failed to raise it
    in the district court. With respect to the merits, we affirm the
    district court’s denial of Crawford’s motion for postconvic-
    tion relief.
    STATEMENT OF FACTS
    In 2011, Crawford pled guilty to possession of a controlled
    substance and was found to be a habitual criminal. The district
    court for Dodge County sentenced Crawford to imprisonment
    for 10 to 15 years. The Nebraska Court of Appeals affirmed
    Crawford’s conviction and sentence. State v. Crawford, No.
    A-11-645, 
    2011 WL 399888
    (Neb. App. Feb. 7, 2012) (selected
    for posting to court Web site). Crawford did not petition this
    court for further review, and therefore, the Court of Appeals
    filed its mandate on March 14, 2012.
    On March 27, 2013, Crawford filed a pro se motion for
    postconviction relief in which he raised various claims. The
    State responded to Crawford’s pro se motion by arguing the
    merits of Crawford’s claims. In its response, the State did not
    raise the issue whether Crawford’s motion was timely under
    § 29-3001(4).
    The district court thereafter appointed postconviction coun-
    sel, who filed an amended motion. In the amended motion,
    Crawford stated that his counsel on direct appeal was different
    from his trial counsel and that he received ineffective assist­
    ance of appellate counsel in various respects.
    Among Crawford’s claims of ineffective assistance of
    appellate counsel was an assertion that “appellate counsel
    failed to assign as error, trial counsel’s failure to file a motion
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    to withdraw [Crawford’s] guilty plea after it was made obvi-
    ous that [Crawford] wished to do so.” Crawford asserted that
    he entered the guilty plea because he was led to believe that
    he would be eligible to participate in a drug court program.
    However, Crawford alleged, trial counsel failed to advise
    him that he would not be eligible for drug court if he was
    found to be a habitual criminal. He further claimed that he
    likely would have been allowed to withdraw his plea prior to
    sentencing, because the misunderstanding regarding eligibil-
    ity for drug court would have been a fair and just basis to
    allow withdrawal.
    Crawford also claimed that in December 2011, during the
    pendency of his direct appeal, appellate counsel informed him
    that counsel would be unable to continue representing him.
    Crawford claimed that counsel never filed a motion to with-
    draw as counsel and that, as a result, Crawford “was uncertain
    of whether he was represented by counsel or not” when the
    Court of Appeals affirmed his conviction on February 7, 2012,
    and he was without an attorney to petition this court for further
    review. Crawford claimed that he would have sought further
    review but that the time for filing a petition for further review
    had expired before he learned no substitute appellate counsel
    had been appointed.
    After an evidentiary hearing on Crawford’s motion for post-
    conviction relief, the district court denied Crawford’s claims
    on their merits. With regard to the claim regarding withdrawal
    of the plea on the basis that Crawford was not informed he
    was not eligible for drug court, the court stated that it was
    apparent on the record Crawford knew before entering his
    plea there was a possibility that he would not be admitted into
    drug court and that Crawford confirmed to the trial court he
    understood admission into drug court was not part of the plea
    agreement. The court further stated that the record showed that
    Crawford was aware of the potential sentence if he was found
    to be a habitual criminal.
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    STATE v. CRAWFORD
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    With regard to appellate counsel’s withdrawal during the
    pendency of the direct appeal, the court found that Crawford
    was not prejudiced by counsel’s withdrawal. The court noted
    that although Crawford was informed of appellate counsel’s
    withdrawal in December 2011, Crawford did not file a request
    for appointment of appellate counsel until August 2012, at
    which time, the request was denied because there was no
    appeal pending.
    The district court did not on its own motion raise an issue
    whether Crawford’s postconviction motion was timely under
    § 29-3001(4), nor did the court address the issue in its order
    denying relief.
    Crawford appeals the denial of his postconviction motion.
    ASSIGNMENTS OF ERROR
    Crawford claims, restated, that the district court erred in
    denying his claims that he received ineffective assistance of
    counsel when (1) appellate counsel failed to assign error to
    trial counsel’s failure to move to withdraw the plea and (2)
    appellate counsel failed to ensure that Crawford received sub-
    stitute appellate counsel. Crawford also claims that he should
    be granted postconviction relief “due to the plain error that per-
    meates the record.” The State asserts that denial of Crawford’s
    motion was correct, either because the motion for postcon­
    viction was not timely filed or because it lacked merit.
    STANDARDS OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter of
    law, which requires the appellate court to reach a conclusion
    independent from the lower court’s decision. State v. Alfredson,
    
    287 Neb. 477
    , 
    842 N.W.2d 815
    (2014).
    [2] A defendant requesting postconviction relief must estab-
    lish the basis for such relief, and the findings of the district
    court will not be disturbed unless they are clearly erroneous.
    State v. Branch, 
    290 Neb. 523
    , 
    860 N.W.2d 712
    (2015).
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    ANALYSIS
    Limitation Period Under § 29-3001(4) Is an
    Affirmative Defense, and the State Waived
    the Issue When It Failed to Raise the
    Defense in the District Court.
    We note as an initial matter that the State argues that
    rather than addressing the merits of Crawford’s postconviction
    motion, the district court should have dismissed Crawford’s
    motion on the basis that it was untimely pursuant to the 1-year
    period of limitation set forth in § 29-3001(4). Although nei-
    ther the State nor the district court raised the issue below, the
    State argues that the timely filing of the postconviction motion
    is a jurisdictional requirement and that therefore, because
    the district court lacked jurisdiction to consider the merits of
    Crawford’s motion, this court consequently lacks jurisdiction
    over this appeal. We conclude that the period of limitation is
    not a jurisdictional requirement and that instead, it is in the
    nature of an affirmative defense which the State waived when
    it failed to raise the defense in the district court.
    The time limitation on filing a postconviction action is set
    forth in § 29-3001(4) of the postconviction act as follows:
    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;
    (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
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    United States or the Nebraska Supreme Court, if the
    newly recognized right has been made applicable retro-
    actively to cases on postconviction collateral review; or
    (e) August 27, 2011.
    The State argues that the timeliness issue goes to subject
    matter jurisdiction and that we should resolve this appeal
    based on Crawford’s alleged failure to timely file his motion,
    because lack of subject matter jurisdiction may be raised at
    any time by any party or by the court sua sponte. See Davis
    v. Choctaw Constr., 
    280 Neb. 714
    , 
    789 N.W.2d 698
    (2010).
    If timely filing is a jurisdictional requirement, this court can
    and must consider the issue, whether or not the issue was
    raised before or decided by the court below. See Breci v. St.
    Paul Mercury Ins. Co., 
    288 Neb. 626
    , 
    849 N.W.2d 523
    (2014)
    (before reaching legal issues presented for review, it is duty of
    appellate court to determine whether it has jurisdiction over
    matter before it).
    The State alternatively argues that even if the failure to
    timely file for postconviction relief does not deprive the courts
    of jurisdiction, then the denial of Crawford’s motion should
    still be affirmed on the basis that the motion was not timely
    filed under the terms of the statute. See § 29-3001(4). In sup-
    port of this argument, the State cites State v. Smith, 
    286 Neb. 77
    , 
    834 N.W.2d 799
    (2013), in which this court affirmed
    the district court’s order denying a motion for postconvic-
    tion relief without an evidentiary hearing because the motion
    was not filed within the 1-year limitation period set forth in
    § 29-3001(4).
    In 
    Smith, supra
    , we affirmed the district court’s order deny-
    ing postconviction relief for failure to comply with the 1-year
    limitation, but we did not state that the failure deprived the
    district court of jurisdiction and we did not dismiss the appeal
    for lack of jurisdiction. In Smith, we did not explicitly discuss
    whether the 1-year limitation was a jurisdictional require-
    ment. In contrast to the present case, in Smith, the limita-
    tion issue was raised below and the district court denied the
    motion on the basis of the statute’s time limitation. As such, it
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    was appropriate for this court to consider the issue on appeal
    whether or not it was a jurisdictional issue. Therefore, Smith
    does not answer the question presented in this case: whether
    the time limitation in § 29-3001(4) is a jurisdictional require-
    ment that must be considered by this court or whether the State
    waived the issue when it failed to raise it as a defense in the
    district court.
    [3] We discussed the distinction between statutorily pre-
    scribed time periods that are jurisdictional requirements and
    those that are in the nature of a statute of limitations in In re
    Estate of Hockemeier, 
    280 Neb. 420
    , 
    786 N.W.2d 680
    (2010).
    We noted that while an appellate court can and must consider
    an alleged failure to meet a time requirement that is a jurisdic-
    tional requirement, the failure to satisfy a statute of limitations
    cannot be raised for the first time on appeal. We stated that
    “[t]his is so because a statute of limitations does not operate
    by its own force as a bar, but, rather, operates as a defense to
    be pled by the party relying upon it and is waived if not pled.”
    
    Id. at 424,
    786 N.W.2d at 684. Therefore, if the 1-year period
    of limitation in § 29-3001(4) is a jurisdictional requirement,
    we must consider whether Crawford met the requirement; if
    instead, it is in the nature of a statute of limitations, then the
    State may not raise the issue for the first time in this appeal,
    because the State waived the defense when it failed to raise it
    in the district court.
    [4] At issue in In re Estate of Hockemeier was a 60-day
    period set forth in Neb. Rev. Stat. § 30-2488(a) (Reissue 2008),
    during which period a claimant must file a petition or com-
    mence a proceeding to challenge a personal representative’s
    disallowance of a claim against an estate. We stated that “[a]
    typical statute of limitations specifies only that an action must
    be commenced within a specified time period.” In re Estate of
    Hockemeier, 280 Neb. at 
    424, 786 N.W.2d at 684
    . We noted
    that the language of § 30-2488(a) was unlike the language of
    a typical statute of limitations (which can be waived) because
    § 30-2488(a) not only specified a time period, it also specified
    the consequences of an untimely filing when it clearly and
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    expressly stated that a claim was barred if the claimant failed
    to act within the statutory period. We noted that the statute was
    self-executing and that if the time requirement was not met, the
    claim was barred by operation of law. We therefore concluded
    in In re Estate of Hockemeier that “the filing of a petition for
    judicial allowance of the claim within the 60-day period speci-
    fied in § 30-2488(a) is a jurisdictional 
    requirement.” 280 Neb. at 425
    , 786 N.W.2d at 685.
    [5] Applying the reasoning of In re Estate of Hockemeier to
    the present case, we conclude that the 1-year period of limita-
    tion set forth in § 29-3001(4) is not a jurisdictional require-
    ment and instead is in the nature of a statute of limitations.
    As noted above, the time limitation on filing a postconviction
    action is set forth in § 29-3001(4) of the postconviction act
    as follows:
    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;
    (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 retro-
    actively to cases on postconviction collateral review; or
    (e) August 27, 2011.
    The language of § 29-3001(4) is like the language of
    a “typical statute of limitations” in that it “specifies only
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    that an action must be commenced within a specified time
    period.” See In re Estate of Hockemeier, 
    280 Neb. 420
    , 424,
    
    786 N.W.2d 680
    , 684 (2010). Unlike the language of the stat-
    ute at issue in that case, § 29-3001(4) does not specify the
    consequences of an untimely filing and it does not clearly
    and expressly state that a postconviction action is barred if
    not filed within the period of limitation. Finally, we note
    that § 29-3001(4) explicitly labels the time requirement as a
    “period of limitation.” These factors support our determination
    that § 29-3001(4) does not impose a jurisdictional requirement
    but instead is in the nature of a statute of limitations.
    For the sake of completeness, we note that the language
    of § 29-3001(4) is similar to a federal statute, 28 U.S.C.
    § 2244(d)(1) (2012), which imposes a time limitation on the
    filing of a habeas action under 28 U.S.C. § 2254 (2012) by a
    person in state custody. In Day v. McDonough, 
    547 U.S. 198
    ,
    
    126 S. Ct. 1675
    , 
    164 L. Ed. 2d 376
    (2006), the U.S. Supreme
    Court determined that the time limitation set forth in 28 U.S.C.
    § 2244(d)(1) is not a jurisdictional requirement. Instead, the
    McDonough Court characterized the 1-year limitation period
    as a statute of limitations defense and stated that therefore,
    “courts are under no obligation to raise the time bar sua
    
    sponte.” 547 U.S. at 205
    . The Court stated that in this respect,
    the limitations defense resembled other threshold barriers to
    habeas relief such as exhaustion of state remedies, procedural
    default, and nonretroactivity.
    We further note that our conclusion that the period of limi-
    tation under § 29-3001(4) is not a jurisdictional requirement
    is consistent with our recent discussion in State v. Ryan, 
    287 Neb. 938
    , 
    845 N.W.2d 287
    (2014), cert. denied ___ U.S. ___,
    
    135 S. Ct. 943
    , 
    190 L. Ed. 2d 840
    (2015), in which we urged
    careful use of the term “jurisdiction.” In Ryan, the district
    court dismissed a motion for postconviction relief on the basis
    that the prisoner’s “claims were not cognizable in postcon-
    
    viction.” 287 Neb. at 940
    , 845 N.W.2d at 290. As an initial
    matter in our analysis, we considered the parties’ dispute over
    whether the court had dismissed the motion on “jurisdictional
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    grounds.” 
    Id. at 941,
    845 N.W.2d at 291. We noted that in
    prior postconviction cases in which we stated that a court had
    no jurisdiction to grant postconviction relief, “[o]ur language
    . . . was imprecise” and we had “frequently used the term
    ‘jurisdiction’ too loosely.” 
    Id. We stated
    that strictly speak-
    ing, “jurisdiction” refers to a court’s adjudicatory authority
    and that the term “jurisdictional” applies only to “‘“prescrip-
    tions delineating the classes of cases (subject matter jurisdic-
    tion) and the persons (personal jurisdiction)” implicating that
    authority.’” 
    Id. at 941-42,
    845 N.W.2d at 291. In Ryan, we
    further stated that the specific failing in that case was a failure
    to show “an element of a claim for postconviction relief, not
    a jurisdictional 
    prerequisite.” 287 Neb. at 942
    , 845 N.W.2d at
    291. Therefore, “the proper course” in such circumstance was
    “to dismiss for failure to state a claim, not for lack of juris-
    diction.” 
    Id. See, also,
    Anderson v. Houston, 
    274 Neb. 916
    ,
    
    744 N.W.2d 410
    (2008) (stating that habeas claim brought
    in wrong county is issue of venue but not matter of jurisdic-
    tion). In the present case, we apply the reasoning in Ryan and
    conclude that while the failure to file a postconviction motion
    within the period of limitation may deprive the prisoner of a
    postconviction claim if the State raises the limitation set forth
    in § 29-3001(4) as a defense, such failure does not deprive a
    court of subject matter jurisdiction over the general class of
    postconviction actions.
    Based on our conclusion that the period of limitation set
    forth in § 29-3001(4) is not a jurisdictional requirement and
    instead is in the nature of a statute of limitations, we conclude
    that the State waived the statute of limitations when it failed
    to raise it as an affirmative defense in the district court. The
    court did not raise the issue sua sponte, and we therefore need
    not determine whether a court may raise the issue sua sponte
    when the State fails to do so. Cf. Day v. McDonough, 
    547 U.S. 198
    , 
    126 S. Ct. 1675
    , 
    164 L. Ed. 2d 376
    (2006) (holding
    that while court is not required to raise time limitation sua
    sponte, it is not prohibited from doing so). Because the period
    of limitation under § 29-3001(4) is in the nature of a statute
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    of limitations, the State cannot raise the issue for the first time
    on appeal. See In re Estate of Hockemeier, 
    280 Neb. 420
    , 
    786 N.W.2d 680
    (2010).
    We finally note that the State also argues that Crawford’s
    motion should have been denied on the basis that Crawford
    did not sign or verify his amended motion for postconviction
    relief. The State cites § 29-3001(4), which requires a “verified
    motion.” We note that the original pro se motion was signed
    and verified by Crawford and that the State’s argument refers
    only to the amended motion filed after counsel was appointed.
    Because Crawford filed a verified motion, we find no merit to
    this argument.
    Having rejected the State’s alternative arguments, we pro-
    ceed to consider the merits of Crawford’s assignments of error
    on appeal.
    District Court Did Not Err When It
    Denied Crawford’s Postconviction
    Claims on Their Merits.
    Crawford claims that the district court erred when it denied
    his postconviction claims on their merits. Crawford argues
    that the district court should have granted him postconviction
    relief based on two claims of ineffective assistance of counsel
    and based on “plain error that permeates the record.” We con-
    clude that the district court did not err when it determined that
    Crawford’s claims were without merit.
    [6] The Nebraska Postconviction Act, Neb. Rev. Stat.
    § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), pro-
    vides that postconviction relief is available to a prisoner
    in custody under sentence who seeks to be released on the
    ground that there was a denial or infringement of his consti-
    tutional rights such that the judgment was void or voidable.
    State v. Dragon, 
    287 Neb. 519
    , 
    843 N.W.2d 618
    (2014). Thus,
    in a motion for postconviction relief, the defendant must
    allege facts which, if proved, constitute a denial or violation
    of his or her rights under the U.S. or Nebraska Constitution,
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    causing the judgment against the defendant to be void or void-
    able. 
    Dragon, supra
    .
    [7,8] 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. 
    Dragon, supra
    . 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 evi-
    dentiary hearing. 
    Id. [9,10] A
    proper ineffective assistance of counsel claim
    alleges a violation of the fundamental constitutional right to a
    fair trial. 
    Id. To prevail
    on a claim of ineffective assistance of
    counsel under Strickland v. Washington, 
    466 U.S. 668
    , 104 S.
    Ct. 2052, 
    80 L. Ed. 2d 674
    (1984), the defendant must show
    that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defendant’s
    defense. 
    Dragon, supra
    . A court may address the two prongs
    of this test, deficient performance and prejudice, in either
    order. 
    Id. Crawford asserts
    that his appellate counsel provided inef-
    fective assistance in two respects: (1) failing to assign error
    to trial counsel’s failure to move to withdraw Crawford’s plea
    after Crawford learned he would not be eligible for drug court
    and (2) failing to ensure that Crawford received substitute
    counsel after appellate counsel withdrew during the pendency
    of Crawford’s direct appeal. The district court addressed and
    rejected each of these claims in its order denying postconvic-
    tion relief.
    With regard to the claim relating to withdrawal of the plea,
    the postconviction court stated that it was apparent on the
    record that Crawford knew before entering his plea that there
    was a possibility that he would not be admitted into drug
    court and that Crawford confirmed to the trial court that he
    understood admission into drug court was not part of the plea
    agreement. The court further stated that the record showed
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    Crawford was aware of the potential sentence if he was found
    to be a habitual criminal. The court found that trial counsel
    had obtained a favorable plea agreement for Crawford.
    [11] To show prejudice when the alleged ineffective assist­
    ance relates to the entry of a plea, the defendant must show
    that there is a reasonable probability that, but for coun-
    sel’s errors, he or she would not have entered the plea and
    would have insisted on going to trial. State v. Fester, 
    287 Neb. 40
    , 
    840 N.W.2d 543
    (2013). The district court deter-
    mined that trial counsel obtained a favorable plea agreement
    for Crawford, and the court therefore effectively found that
    Crawford had not shown that without counsel’s alleged inef-
    fectiveness, he would not have accepted the plea and instead
    would have insisted on going to trial. These determinations
    are supported by the record, and we agree that Crawford
    has not shown a reasonable probability that he would have
    insisted on going to trial; instead, he generally argues that he
    could have obtained a better plea deal if he had been allowed
    to withdraw his plea and not that he would have insisted on
    going to trial.
    Having reviewed the record, we note that Crawford’s argu-
    ment regarding his plea is a variation on an argument that
    was presented to and rejected by the Court of Appeals in
    Crawford’s direct appeal. In his direct appeal, Crawford argued
    that his plea bargain was illusory and that his plea was not
    knowingly, voluntarily, and intelligently entered. The Court
    of Appeals rejected this argument, noting, inter alia, that the
    record showed Crawford was not misinformed about the plea
    agreement, that he knew he might not get into drug court,
    and that Crawford received significant benefits from the plea
    agreement. Crawford’s argument in this postconviction action
    is effectively a repositioning of this same claim, and we con-
    clude that the district court did not err when it rejected the
    claim in this postconviction action.
    With regard to appellate counsel’s withdrawal during the
    pendency of the direct appeal, the postconviction court found
    that Crawford “was not prejudiced in any way” by counsel’s
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    withdrawal, because counsel had completed all work nec-
    essary for the appeal before withdrawing and, in fact, the
    appeal was fully considered on the merits. The court noted
    Crawford’s argument that he claimed he was prejudiced by
    not being able to file a petition for further review. The
    court found that although Crawford was informed of appel-
    late counsel’s withdrawal prior to issuance of the Court of
    Appeals’ decision, Crawford did not request appointment of
    substitute counsel until after the time had passed to seek fur-
    ther review.
    [12] We agree with the postconviction court that Crawford
    has not shown prejudice from the failure of appellate counsel
    to seek further review. We acknowledge that Crawford was
    arguably without counsel at the time the Court of Appeals
    filed its decision and that during the period, he might have
    petitioned for further review. However, the U.S. Supreme
    Court has held that the right to counsel does not extend to
    discretionary appeals to a state’s highest court, Ross v. Moffitt,
    
    417 U.S. 600
    , 
    94 S. Ct. 2437
    , 
    41 L. Ed. 2d 341
    (1974), and
    that the right to counsel is limited to the first appeal as of
    right, Evitts v. Lucey, 
    469 U.S. 387
    , 
    105 S. Ct. 830
    , 
    83 L. Ed. 2d
    821 (1985). Based on this precedent, we have held that
    in Nebraska, a defendant does not have a constitutional right
    to counsel beyond the conclusion of his or her direct appeal
    and that therefore, he or she cannot be deprived of effective
    assistance of counsel based on the failure of counsel to timely
    file a petition for further review. See State v. Mata, 
    273 Neb. 474
    , 
    730 N.W.2d 396
    (2007). See, also, State v. Taylor, 
    14 Neb. Ct. App. 849
    , 
    716 N.W.2d 771
    (2006). We note that this
    conclusion is consistent with Neb. Ct. R. App. P. § 2-102(G)
    (rev. 2012), which provides in part that “[f]urther review
    by the Supreme Court is not a matter of right, but of judi-
    cial discretion.”
    In the present case, before withdrawing, Crawford’s appel-
    late counsel had completed all work that was necessary in
    connection with submitting Crawford’s first appeal as of
    right to the Court of Appeals. Because there was no right to
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    counsel beyond the conclusion of the appeal to the Court of
    Appeals, Crawford was not deprived of effective assistance of
    counsel based on the failure of counsel to file a petition for
    further review. We therefore conclude that the district court
    did not err when it rejected this claim.
    Crawford finally argues that the district court should have
    granted postconviction relief based on “plain error that perme-
    ates the record.” We have rejected Crawford’s assertions of
    error, and we find no other plain error. We therefore conclude
    that the district court did not err when it denied postconvic-
    tion relief.
    CONCLUSION
    We conclude that the limitation periods for filing a postcon-
    viction motion in § 29-3001(4) are in the nature of a statute
    of limitations and are not jurisdictional. In this case, the State
    waived the statute of limitations under § 29-3001(4) when it
    failed to raise the defense in the district court. Having reviewed
    Crawford’s assignments of error on appeal and finding them to
    be without merit, we affirm the district court’s denial of his
    motion for postconviction relief.
    A ffirmed.
    Cassel, J., not participating.