State v. Liner , 26 Neb. Ct. App. 303 ( 2018 )


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    09/11/2018 08:08 AM CDT
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    STATE v. LINER
    Cite as 
    26 Neb. Ct. App. 303
    State of Nebraska, appellee, v.
    Dan M. Liner, appellant.
    ___ N.W.2d ___
    Filed September 11, 2018.   No. A-17-778.
    1.	 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.
    2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach an
    independent conclusion irrespective of the determination made by the
    court below.
    3.	 Postconviction: Limitations of Actions: Words and Phrases: Appeal
    and Error. For purposes of Neb. Rev. Stat. § 29‑3001(4)(a) (Reissue
    2016), the “conclusion of a direct appeal” occurs when a Nebraska
    appellate court issues the mandate in the direct appeal.
    4.	 Rules of the Supreme Court: Postconviction. Postconviction pro-
    ceedings are not governed by the Nebraska Court Rules of Pleading in
    Civil Cases.
    5.	 Actions: Pleadings. A cause of action pleaded by amendment ordinarily
    relates back to the original pleading, provided that claimant seeks recov-
    ery on the same general set of facts.
    Appeal from the District Court for Buffalo County: William
    T. Wright, Judge. Affirmed.
    Dan M. Liner, pro se.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Pirtle, R iedmann, and Welch, Judges.
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    STATE v. LINER
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    26 Neb. Ct. App. 303
    R iedmann, Judge.
    INTRODUCTION
    Dan M. Liner appeals the order of the district court for
    Buffalo County which denied him postconviction relief.
    Because his amended motion for postconviction relief is time
    barred, we affirm.
    BACKGROUND
    Liner was charged in November 2013 with various drug and
    weapons offenses. In September 2014, he filed motions to dis-
    charge the charges on speedy trial grounds. The district court
    denied the motions to discharge, and Liner appealed to this
    court, which appeals were docketed as cases Nos. A‑14‑819
    and A‑14‑820. On March 24, 2015, we affirmed in a memo-
    randum opinion, and on April 28, a mandate was issued in
    each case. Thereafter, Liner entered a no contest plea to one
    count of possession of a deadly weapon by a prohibited person
    and stipulated to being a habitual criminal. He was sentenced
    to 15 to 20 years’ imprisonment. Liner appealed, assigning
    only that he received an excessive sentence, which appeal was
    docketed as case No. A‑15‑771. This court summarily affirmed
    the sentence on January 8, 2016, and issued its mandate on
    February 18.
    On December 1, 2016, Liner filed a pro se verified motion
    for postconviction relief. His motion contained nine grounds
    for relief. Specifically, he alleged that (1) his plea of no con-
    test was entered unintelligently because the State failed to
    adequately advise him on the record of the maximum penalty,
    (2) the district court lacked jurisdiction to accept his plea
    when it also failed to properly advise him of the maximum
    penalty, (3) the district court failed to advise him on the
    record of the maximum term of incarceration he would be
    required to serve before obtaining mandatory release, (4) the
    district court lacked subject matter jurisdiction to sentence
    him for the reasons previously set forth, (5) trial counsel was
    ineffective in failing to alert the court of the State’s failure
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    to adequately advise him of the maximum penalty, (6) trial
    counsel was ineffective in failing to object to the court’s fail-
    ure to advise him of the maximum term he must serve before
    mandatory release, (7) trial counsel was ineffective in failing
    to object to the impermissible sentence imposed by the court
    for the reasons previously set forth, (8) trial counsel was inef-
    fective in failing to object to each claim set forth in the post-
    conviction motion, and (9) appellate counsel was ineffective
    in failing to raise on direct appeal the claims set forth in the
    postconviction motion.
    On March 1, 2017, Liner moved for leave to file an amended
    motion for postconviction relief. The district court granted
    leave to amend, and Liner filed an amended motion on April
    19. The amended motion included only one ground for relief:
    Appellate counsel was ineffective in failing to raise on direct
    appeal that trial counsel was ineffective in failing to file a sec-
    ond motion for discharge on speedy trial grounds. The State
    filed a motion to dismiss the amended motion, alleging, as
    relevant here, that the amended motion was filed outside the
    limitation period set forth in the Nebraska Postconviction Act,
    Neb. Rev. Stat. § 29‑3001 et seq. (Reissue 2016).
    The district court held a hearing on the amended motion
    and corresponding request for an evidentiary hearing, the
    State’s motion to dismiss, and Liner’s objections to the motion
    to dismiss. The court subsequently entered an order, which
    purported to both grant the motion to dismiss and deny the
    amended motion for postconviction relief. The court first deter-
    mined that the sole issue raised in the amended motion was
    raised or could have been raised in the course of the inter-
    locutory appeal Liner filed in September 2014 after the court
    denied his motion for discharge. Additionally, the court found
    that because Liner’s conviction was plea based, he waived
    many of his rights, including his right to complain about
    errors at the plea and sentencing hearing. Finally, the court
    concluded that the amended motion for postconviction relief
    did not relate back to the original motion because it raised an
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    entirely different issue and that therefore, because it had been
    filed more than 1 year after the conviction became final, it was
    untimely. Liner appeals.
    ASSIGNMENT OF ERROR
    Liner assigns, restated, that the district court erred in deny-
    ing his motion for postconviction relief without holding an
    evidentiary hearing.
    STANDARD OF REVIEW
    [1] 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. Lee, 
    282 Neb. 652
    , 
    807 N.W.2d 96
    (2011).
    [2] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the determination made by
    the court below. State v. Goynes, 
    293 Neb. 288
    , 
    876 N.W.2d 912
    (2016).
    ANALYSIS
    The district court’s order addressed the timeliness of the
    amended motion as raised in the State’s motion to dismiss
    and the merits of the postconviction motion and purported to
    both (1) grant the motion to dismiss, thereby dismissing the
    amended motion, and (2) deny the amended postconviction
    motion on its merits. Despite the irregular procedural posture
    of the matter, we conclude that the district court did not err in
    granting the motion to dismiss. We therefore do not address the
    merits of the amended motion for postconviction relief.
    [3] Section 29‑3001(4) provides that a 1‑year period of
    limitation shall apply to the filing of a verified motion for post-
    conviction relief. As applicable in this case, the 1‑year limita-
    tion period shall run from the date the judgment of conviction
    became final by the conclusion of a direct appeal or the expira-
    tion of the time for filing a direct appeal. See § 29‑3001(4)(a).
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    STATE v. LINER
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    For purposes of § 29‑3001(4)(a), the “conclusion of a direct
    appeal” occurs when a Nebraska appellate court issues the
    mandate in the direct appeal. State v. Huggins, 
    291 Neb. 443
    ,
    
    866 N.W.2d 80
    (2015).
    This court’s mandate in Liner’s direct appeal was issued on
    February 18, 2016. Therefore, his original motion for post-
    conviction relief filed on December 1 was filed within the
    1‑year limitation period, but the amended motion filed April
    19, 2017, was untimely unless it related back to the filing of
    the original motion.
    [4] The common‑law doctrine of relation back was codi-
    fied in Neb. Rev. Stat. § 25‑201.02 (Reissue 2016). See John
    P. Lenich, Nebraska Civil Procedure § 15:8 (2018). Section
    25‑201.02 provides that an amendment of a pleading that does
    not change the party or the name of the party against whom
    the claim is asserted relates back to the date of the original
    pleading if the claim or defense asserted in the amended
    pleading arose out of the conduct, transaction, or occurrence
    set forth or attempted to be set forth in the original pleading.
    Our review of Nebraska case law does not reveal an instance
    where the relation‑back doctrine has been applied in a post-
    conviction proceeding. And we recognize that the Nebraska
    Supreme Court has clarified that postconviction proceedings
    are not governed by the Nebraska Court Rules of Pleading in
    Civil Cases. See State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
    (2016). Whether the relation‑back doctrine, codified in
    § 25‑201.02, constitutes a rule of pleading is an issue we need
    not decide because we conclude that Liner’s amended motion
    did not relate back to the original motion and was there-
    fore untimely.
    [5] A cause of action pleaded by amendment ordinarily
    relates back to the original pleading, provided that claimant
    seeks recovery on the same general set of facts. Forker Solar,
    Inc. v. Knoblauch, 
    224 Neb. 143
    , 
    396 N.W.2d 273
    (1986). The
    theory of recovery is not itself a cause of action; therefore, if
    the general facts upon which the right to recover is based are
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    the same, the amendment relates back to the original plead-
    ing. 
    Id. The federal
    courts have rejected the broad argument that
    an amended postconviction claim related back to the original
    claim if it stemmed from the same trial, conviction, or sen-
    tence; rather, the Eighth Circuit relied upon the U.S. Supreme
    Court’s holding in Mayle v. Felix, 
    545 U.S. 644
    , 
    125 S. Ct. 2562
    , 
    162 L. Ed. 2d 582
    (2005), that in order for claims
    in an amended motion to relate back, they must be of the
    same time and type as those in the original motion, such that
    they arise from the same core set of operative facts. U.S. v.
    Hernandez, 
    436 F.3d 851
    (8th Cir. 2006). See, also, Dodd v.
    U.S., 
    614 F.3d 512
    (8th Cir. 2010) (facts alleged must be spe-
    cific enough to put opposing party on notice of factual basis
    for claim, and thus, it is not enough that both original motion
    and amended motion allege ineffective assistance of counsel
    during trial).
    Applying the applicable definitions and rejecting a broader
    interpretation of the relation‑back doctrine, the Eighth Circuit
    in U.S. v. 
    Hernandez, supra
    , determined that the amended
    ineffective assistance claim did not relate back to the original
    claim because the original claim referred to the admission of
    evidence, whereas the amended claim referred to trial tes-
    timony and cross‑examination of witnesses. Thus, the facts
    alleged in the original claim were not such that would put the
    opposition on notice that cross‑examination of witnesses was
    at issue, and the claims were not similar enough to satisfy the
    “‘time and type’” test, nor did they arise out of the same set
    of operative facts. 
    Id. at 858.
       Likewise, in the instant case, the ineffective assistance of
    counsel claim raised in the amended motion is not based on
    the same set of facts as the claims contained in the original
    motion. The original claims related to entry of the plea and
    sentencing matters, whereas the amended claim related to
    Liner’s right to a speedy trial, which occurred prior to the time
    he entered a plea. We cannot find that these claims are based
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    STATE v. LINER
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    on the same general facts such that the amended motion relates
    back to the filing of the original motion. Accordingly, the
    amended motion was filed outside the 1‑year limitation period
    set forth in § 29‑3001(4)(a). The district court, therefore, did
    not err in granting the State’s motion to dismiss the amended
    motion as untimely.
    CONCLUSION
    We conclude that the district court did not err in granting the
    State’s motion to dismiss. We therefore affirm.
    A ffirmed.